Recently in Injury & Tort Law Category

In defendants' appeal from the district court's dismissal of their counterclaim and the district court's award of quantum meruit compensation subsequent to a bench trial, judgment for plaintiffs is affirmed in part where: 1) defendants' counterclaims were based on privileged attorney-client communications; and 2) the agreement allegedly breached by plaintiffs did not require that any and all communications with the client regarding costs include both attorneys.  However, the order is vacated in part where the district court clearly erred in failing to account for the value of the attorney referral at issue.

Read Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, No. 07-16191

Appellate Information

Argued and Submitted April 16, 2009

Submission Withdrawn April 27, 2009

Filed October 21, 2009

Judges

Opinion by Judge Nelson

Counsel

For Appellants:

Mark A. Hutchison, Scott A. Flinders and Michael K. Wall, Hutchison & Steffen, LLC, Las Vegas, NV

For Appellees:

Joice B. Bass, Lewis & Roca, LLP, Las Vegas, NV

Samuel S. Lionel, Lionel Sawyer & Collins, Las Vegas, NV

In a tort action arising out of a scuba diving accident, the dismissal of the action on forum non conveniens grounds is affirmed where a claim implicating the Death on the High Seas Act is within the admiralty jurisdiction of the federal courts, and is thus subject to discretionary dismissal on forum non conveniens grounds.

Read Loya v. Starwood Hotels & Resorts Worldwide, Inc., No. 07-35571

Appellate Information

Argued and Submitted October 21, 2008

Submission Vacated October 30, 2008

Resubmitted August 21, 2009

Filed October 2, 2009

Judges

Opinion by Judge Rymer

Dissent by Judge Kleinfeld

Counsel

For Appellants:

Scott E. Stafne, Stafne Law Firm, Arlington, WA

Martin D. Fox, Martin D. Fox, Inc., Seattle, WA

For Appellees:

Melissa O. White, Rodney Q. Fonda, Cozen O'Connor, Seattle, WA

In an action by a Philippine island claiming that an American company polluted its waters, dismissal of the action on forum non conveniens grounds is reversed where the district court lacked subject matter jurisdiction under the act of state doctrine because none of the conduct by the Philippine government referenced by defendants was essential to any of the plaintiff's causes of action.

Read Provincial Gov't. of Marinduque v. Placer Dome, Inc., No. 07-16306

Appellate Information

Argued and Submitted December 7, 2007

Filed September 29, 2009

Judges

Opinion by Judge McKeown

Counsel

For Appellant:

Walter J. Scott, James D. McCarthy and David H. Ammons, Diamond McCarthy LLP, Dallas, TX

For Appellees:

Steve Morris, Rex D. Garner, Morris Pickering & Peterson, Las Vegas, NV

In a product liability action against a tobacco company, the dismissal of the action on preemption grounds is reversed where the district court erroneously allowed defendants to achieve diversity jurisdiction by its incorrect finding that plaintiffs' state law claims were preempted and constituted fraudulent joinder.

Read Hunter v. Philip Morris USA, No. 07-35916

Appellate Information

Argued and Submitted August 4, 2008

Submission Vacated and Deferred October 29, 2008

Resubmitted August 27, 2009

Filed September 28, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellants:

Don C. Bauermeister, Burke & Bauermeister, PLLC, Anchorage, AK

For Appellees:

John W. Phillips, Phillips Law Group, PLLC, Seattle, WA

In an action claiming that defendant violated the Computer Fraud and Abuse Act (CFAA) by accessing plaintiff's computer without authorization, both while defendant was employed by plaintiff and after he left the company, summary judgment for defendant is affirmed where: 1) defendant was authorized to use plaintiff's computers while he was employed by plaintiff, and thus he did not access a computer "without authorization" in violation of the applicable statutes when he emailed documents to himself and to his wife prior to leaving employment; and 2) plaintiff failed to establish the existence of a genuine issue of material fact as to whether defendant accessed plaintiff's website without authorization after he left the company.

Read LVRC Holdings LLC v. Brekka, No. 07-17116

Appellate Information

Argued and Submitted March 13, 2009

Filed September 15, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Thomas G. Grace, Las Vegas, NV

For Respondent:

Norman H. Kirshman, Las Vegas, NV

In a personal injury action based on injuries plaintiff suffered while diving from defendant's ship, judgment for defendant is affirmed where the rule from The Pennsylvania, 86 U.S. (1 Wall.) 125 (1873), which puts on the ship owner the burden of proving that its violation of a statute or regulation did not cause the injury, did not apply because there must be a threshold causal connection between the violation and the injury before the Rule will apply.

Read MacDonald v. Kahikolu, Ltd., No. 08-15239

Appellate Information

Argued and Submitted June 12, 2009

Filed September 10, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellant:

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, CA

For Appellee:

Richard C. Wootton, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA

Mitchell S. Griffin, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA

In a trademark infringement and state tort action by celebrity Paris Hilton against the greeting card company Hallmark for using her image and catchphrase in a birthday card without her permission, a denial of defendant's motion to strike under California's anti-SLAPP statute is affirmed where: 1) plaintiff had some probability of prevailing on the merits before a trier of fact on the issue of whether defendant's use of her image was transformative; and 2) defendant could not employ the public interest defense because its birthday card did not publish or report information.

Read Hilton v. Hallmark Cards, No. 08-55443

Appellate Information

Argued and Submitted May 6, 2009

Filed August 31, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Lincoln D. Bandlow, Spillane Shaeffer Aronoff Bandlow LLP, Los Angeles, CA

For Appellee:

Brent H. Blakely, Blakely Law Group, Hollywood, CA

In an action against DaimlerChrysler based on human rights violations allegedly committed by Mercedes Benz Argentina, its subsidiary, in Argentina during the 1970s military regime, the dismissal of the action for lack of personal jurisdiction is affirmed, where a parent's control over a subsidiary must be over and above that to be expected as an incident of ownership for jurisdiction to exist on that basis.

Read Bauman v. DaimlerChrysler Corp., No. 07-15386

Appellate Information

Argued and Submitted October 21, 2008

Filed August 28, 2009

Judges

Opinion by Judge Nelson

Dissent by Judge Reinhardt

Counsel

For Appellants:

Terry Collingsworth, International Rights Advocates, Washington, DC

For Appellee:

Matthew J. Kemner, Carroll, Burdick & McDonough LLP, San Francisco, CA

In an action under the Americans with Disabilities Act against a public transit authority for failure to accommodate sight-impaired passengers, judgment for plaintiffs is reversed where the authority complied with Department of Transportation regulations, and had no obligations beyond doing so.

Read George v. Bay Area Rapid Transit, No. 07-15661

Appellate Information

Argued September 11, 2008

Submitted August 5, 2009

Filed August 13, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellants:

Patricia Barbosa, Law Offices of Paul L. Rein, Oakland, CA

For Appellee:

Joseph Hearst, Berkeley, CA

Clement Glynn, Glynn & Finley LLP, Walnut Creek, CA

The Court of Appeals certifies the following question to the Hawaii Supreme Court: Does a total pollution exclusion provision in a standard commercial general liability insurance policy apply to localized uses of toxic substances in the ordinary course of business, or is it limited to situations that a reasonable layperson would consider traditional environmental pollution?

Read Apana v. TIG Ins. Co., No. 08-15550

Appellate Information

Filed July 15, 2009

Judges

Opinion by Judge Kozinski