177 results for 'filedAt:"2023-06-28"'.
J. Bendix finds that the trial court misapplied the interim adverse judgment rule when it granted a landlord's anti-SLAPP motion, which the landlord filed after its tenant prevailed in an unlawful detainer action and filed a malicious prosecution complaint against the landlord. The trial court categorized the unlawful detainer court's sua sponte statements as interim adverse judgments, but only actual judgments and rulings on dispositive motions can serve as the bases for the application of the interim adverse judgment rule. Reversed.
Court: California Courts Of Appeal, Judge: Bendix, Filed On: June 28, 2023, Case #: B321087, Categories: Anti-slapp, Landlord Tenant, Malicious Prosecution
J. Lagesen finds the trial court erred by ruling that defendant’s 90-month mandatory sentence for setting fire to an occupied apartment building was unconstitutionally disproportionate. “This case does not present ‘the rare circumstances’ in which the legislatively prescribed sentence for defendant’s conviction contravenes the Article I, section 16, proportionality requirement.” Reversed.
Court: Oregon Court of Appeals, Judge: Lagesen, Filed On: June 28, 2023, Case #: A173971, Categories: Sentencing, Arson
J. McCafferty grants in part a police chief's motion for judgment on a woman's claims after she was arrested for trespassing that her rights were violated in retaliation for her criticism of city officials and policies, after she sought information about why her home's tax assessment was raised by over 50% and officials failed to provide the information she requested. The woman's claims of violation of her substantive due process rights don't meet the high threshold of shocking the conscience required to be viable claims. She also fails to support some of her claims that her right to free speech and right to procedural due process were violated. Her argument regarding civil conspiracy of the chief and his employees is not viable because the chief and his employees work together, and therefore can't be considered conspirators with each other. However, her claim that the chief's arrest of her was a retaliatory arrest is not dismissable because the chief ordered her arrest by overruling the judgment of other officers, which suggests his choice to arrest her was not entirely objective.
Court: USDC New Hampshire, Judge: McCafferty, Filed On: June 28, 2023, Case #: 1:22cv326, NOS: Other Civil Rights - Civil Rights, Categories: Constitution, Due Process, First Amendment
J. Robinson finds that defendant was properly convicted of domestic abuse battery-third offense. The record shows that defendant knowingly entered into the guilty plea, and the evidence shows that defendant had been drinking all day and that a verbal confrontation had turned physical with the victim. Further, after defendant was arrested, he threatened physical harm and even death to the victim. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Robinson , Filed On: June 28, 2023, Case #: 55,135-KA, Categories: Plea, Domestic Violence
J. Hanni finds the probate court improperly approved the settlement agreement between the trust beneficiaries and the adjacent landowners in a property dispute. The agreement did not provide a benefit to the beneficiaries, who were required to relinquish all claims of adverse possession related to the driveway between the properties. Although losing litigation against the adjacent landowners would result in a similar loss of property rights, the settlement also required financial compensation for the transfer of the land's oil and gas rights; therefore, the settlement never should have been approved. Reversed.
Court: Ohio Court Of Appeals, Judge: Hanni, Filed On: June 28, 2023, Case #: 2023-Ohio-2281, Categories: Property, Settlements, Wills / Probate
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J. Aoyagi finds the juvenile court properly terminated a mother’s parental rights to her 8-year-old daughter. Adoption would be a better option for the child than permanent guardianship and termination of the mother’s parental rights is in the child’s best interests.
Court: Oregon Court of Appeals, Judge: Aoyagi, Filed On: June 28, 2023, Case #: A180068, Categories: Family Law
J. Doyle finds that the trial court properly convicted defendant of DUI and improper parking. Sufficient evidence was presented to support defendant's convictions, including evidence that defendant failed field sobriety tests, registered positive on an alco-sensor and smelled of alcohol. The trial court correctly instructed the jury on demonstrative evidence and the charge as a whole was unlikely to have confused the jury. Defendant failed to show that she was prejudiced by her trial counsel's allegedly deficient performance. Affirmed.
Court: Georgia Court of Appeals, Judge: Doyle, Filed On: June 28, 2023, Case #: A22A1738, Categories: Ineffective Assistance, Dui
J. Brody finds that the trial court properly dismissed a petition for post-conviction relief as time-barred. Defendant was not entitled to have the one-year post-conviction relief limitations period equitably tolled while he was incarcerated in Texas. He failed to show both that he had diligently pursued his rights and that an extraordinary circumstance prevented his access to Idaho courts. Affirmed.
Court: Idaho Supreme Court, Judge: Brody, Filed On: June 28, 2023, Case #: 49305, Categories: Criminal Procedure, Murder
J. Wiley finds that an employer forfeited its right to compel the arbitration of a wrongful termination claim when it failed to timely pay arbitration fees. And the arbitrator lacked the authority to to cure the employer's breach of the arbitration agreement or stop the employee from withdrawing from arbitration. Affirmed.
Court: California Courts Of Appeal, Judge: Wiley, Filed On: June 28, 2023, Case #: B318880, Categories: Arbitration, Civil Procedure, Employment
J. Pipkin finds that the trial court improperly denied the injured driver's motion for partial summary judgment in a negligence action against the drivers arising from a car collision. The trial court also incorrectly granted the drivers' motion to enforce a pre-suit settlement. The drivers did not comply with the terms of acceptance of the settlement offer and therefore there was no formation of a settlement agreement. The injured driver was permitted to specify a day on which payment was due rather than require payment within a multi-day time frame. Reversed.
Court: Georgia Court of Appeals, Judge: Pipkin, Filed On: June 28, 2023, Case #: A23A0394, Categories: Settlements, Negligence
J. Lagesen allows reconsideration in State v. Halvorson in a dispute over attorney fees. “Although defendant’s concession is noted in our earlier decision, State v. Halvorson…it was not clearly acknowledged in our Halvorson II disposition.”
Court: Oregon Court of Appeals, Judge: Lagesen, Filed On: June 28, 2023, Case #: A169687, Categories: Attorney Fees
J. Piersol dismisses a pro se individual's claims against the Oglala Sioux Tribe Council, Department of Interior and Bureau of Indian Affairs after the individual alleged that Oglala Sioux Tribe Council improperly authorized loans to itself for cannabis businesses in prime locations. The individual's fraud claims are not supported by evidence and the court has no jurisdiction due to tribal sovereign immunity.
Court: USDC South Dakota, Judge: Piersol, Filed On: June 28, 2023, Case #: 5:23cv5041, NOS: Commerce - Other Suits, Categories: Fraud, Native Americans, Jurisdiction
J. May finds that the lower court properly held that defendant violated probation and placed him in the custody of the department of corrections when the only residential facility did not have an immediate opening for him. Affirmed.
Court: Indiana Court Of Appeals, Judge: May, Filed On: June 28, 2023, Case #: 23A-JV-00011, Categories: Probation
J. Burns conditionally grants the relator's petition for a writ of mandamus, in which she challenges an order granting a new trial motion in the underlying divorce proceeding. The motion for new trial was untimely filed, and the real party in interest failed to establish the exception to the 30-day rule. Accordingly, the lower court had lost plenary power, and the petitioner is entitled to mandamus relief.
Court: Texas Courts of Appeals, Judge: Burns, Filed On: June 28, 2023, Case #: 05-22-01070-CV, Categories: Civil Procedure, Family Law
J. Marbley denies, in part, the motions for summary judgment filed by the landowners and the oil and gas drilling companies, ruling none of the parties can prevail on the declaratory judgment claim filed by the landowners. There is a question of fact as to whether the definition of "Utica Shale" in the parties' drilling contract includes the Point Pleasant formations extracted by the drilling companies. Additionally, the landowners cannot prevail on their trespassing claim because of the ambiguity in the contract.
Court: USDC Southern District of Ohio, Judge: Marbley, Filed On: June 28, 2023, Case #: 2:19cv2221, NOS: Other Contract - Contract, Categories: Energy, Property, Contract
J. Kern finds that the circuit court properly entered judgment after defendant was convicted as an accessory to aggravated assault for intentionally harboring or concealing a juvenile in the commission of a felony. Defendant argues that because the juvenile was subject to a delinquency
adjudication, rather than a criminal prosecution, which could have resulted in a felony conviction, she can not be an accessory to a felony. The matter stems from a recorded assault against another juvenile. Defendant was properly convicted in accordance with South Dakota Codified Law. Affirmed.
Court: South Dakota Supreme Court, Judge: Kern, Filed On: June 28, 2023, Case #: 2023SD29, Categories: Juvenile Law, Assault
J. Caproni denies the representative of the proposed class's motion for reconsideration of the court's granting Merrill Lynch's motion to exclude expert testimony as to the rep's seeking class certification in this action arising from a feature of Merrill Lynch's "self-directed" investment accounts allowing it to automatically move uninvested cash into a Bank of America money market account. The rep says the court holds the expert to too high a standard and that the pass-through methodology was intended to show that damages could be assessed on a class-wide basis but fails to demonstrate how the court erred when it analyzed expert reports using the Daubert standard for admissibility.
Court: USDC Southern District of New York, Judge: Caproni , Filed On: June 28, 2023, Case #: 1:19cv7998, NOS: Other Contract - Contract, Categories: Banking / Lending, Class Action, Contract
J. Powers finds the juvenile court erred when it applied an incorrect legal standard to determine witness competence. “The state had the burden to prove that [the witness] had sufficient ability to perceive, recollect, and communicate about those events so that it was worthwhile for [the witness] to testify.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: June 28, 2023, Case #: A175034, Categories: Competence, Sex Offender, Witnesses
J. Scales finds the trial court improperly compelled the insurance company to engage in an appraisal process with the homeowners, who are challenging the amount they received for their claim over damages their home suffered from Hurricane Irma in 2017. The trial court violated the insurance company's due process rights by granting the homeowners' oral request for appraisal at a case management conference when no properly filed motion for appraisal was pending or noticed for hearing and the company was not prepared to argue the issue, so the portion of the trial court's order compelling appraisal is overturned. Reversed.
Court: Florida Courts Of Appeal, Judge: Scales, Filed On: June 28, 2023, Case #: 22-1524, Categories: Insurance, Due Process, Contract