Quote of the Day - The heroes who emerged first from the rubble of the September 11 attacks were not politicians or generals and they didn't become household names in the months that followed. They were, instead, public servants who continued to work day in and day out to protect our communities and ensure 'hometown security.'
Coast to Coast Internet Radio Remembers 9/11
This week on Coast to Coast we would like to remember the victims of 9/11 and their families. It has been five years since the United States was attacked and the victims will never be forgotten. Join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Robert Haefele from the national firm of Motley Rice, to discuss the considerable amount of pro-bono work Motley Rice has done to help 9/11 families.
In contrast, Coast to Coast touches upon a story about a law firm whose tactics are being criticized with respect to the recent Kentucky crash of Comair Flight 5191. In the second part of our show, Coast to Coast welcomes Attorney Ben Cowgill and Attorney Steve Frederick, both Kentucky attorneys, to discuss the crash and the actions of plaintiff attorneys. Don’t miss it!
"You're Suing Me For What?"
Orange County, California has a new newspaper, the OC Post, that started littering my sidewalk about a week and a half ago. They're giving it away for free, and charging 25 cents on the newsstand. Go figure.
So far, I've been throwing it in the trash, along with that other weekly newspaper, the Irvine World News, put out by the same publisher that puts out the Orange County Register. My better half, Lisa, on the other hand likes the second of the three for its local coverage.
But the headline quoted above on the front page caught my attention. I am, after all, a lawyer. The article features a group of frivolous lawsuits, including a guy who's a Michael Jordan look-alike who's suing .... yep, you guessed it, Michael Jordan. For $832 million.
I have no idea how he came up with $832 million. If anything, it's creative. But that's about it. According to the article, the look-alike is six inches shorter, twenty-five pounds heavier and eight years older than the real thing. So he dropped his suit.
Then there's the lawsuit against Hershey's for lead in its chocolate. While that may alarm you at first, the amount of lead is no more than naturally occurs in cacao beans and the other ingredients that make up chocolate. So relax, and dig into that chocolate bar, and save me a piece.
The next one is the suit against apartment complexes for failing to warn their tenants of the dangers of cigarette smoke and engine exhaust. Last time I thought about it, I already knew that cigarette smoke causes cancer because of the Surgeon General's warning and that exhaust wasn't good for you because I watched CSI (the hose into the car with the windows rolled up trick).
The article goes on to chronicle extortion lawsuits like the ones brought against liquor stores for failing to advertise that their point-of-sale terminals charged a usage fee, lawsuits suing people who send junk faxes (although that's one I would approve of), and other shakedown lawsuits.
Go ahead and make your obligatory lawyer joke here: just remember you heard it here second, after the OC Post. But then again, it didn't show up on your driveway, did it?
The Party Of The Second Part Didn't Buy The Party Of The First Part's Non-competition Agreement
Listen up buyers and sellers of businesses: be careful what you sell and what you buy. A recent case decided by the court of appeals here in Orange County warns us that contracts that sell more than can be sold are void. In Strategix, Ltd. v. Infocrossing West, Inc. the parties sought to interpret a contract between the two. Let me explain.
Strategix sold its business to Infocrossing's predecessor, SMS, and in that agreement, the parties made two agreements. First, Strategix agreed it would not compete with SMS or solicit its own employees and customers away from SMS. Second, it agreed it would also not solicit SMS' (and by succession, Infocrossing's) employees or customers.
There's just one problem. It's the party of the second part, to quote an old lawyer's phrase.
In California, there's a law that encourages competition between parties and disallows agreements that prevent competition between companies for either employees or customers. It's Business & Professions Code section 16601.
In other words, a company can't stifle this kind of competition as part of a sale of one business to another. It can, however, prevent the company that is selling its assets, customers and employees to the buying company from stealing those customers and employees back.
The other direction, however, is a no go. Because the selling company has virtually no way of knowing who works for the buying company or the customers of the buying company. In this case, Infocrossing had convinced the trial court to issue an injunction preventing Strategix from soliciting Infocrossing's employees or customers. The appellate court reversed, invalidating the injunction.
Strategix is free to compete with Infocrossing, and the court likewise refused to "blue pencil" the agreement between the two companies to save it.
Like I said before, be careful what you think you're buying.
Pause And Remember
Here's a moment of digital silence.
Gnome Rats Out Burgular In England
People do stupid things. In fact, they do so many stupid things that Court TV has an entire site dedicated to Stupid Crimes and Misdemeanors. Some of the shenanigans are so funny that the site is occasionally the inspiration for a post on this site.
In fact, Court TV has 52 nominations each year, including some that might qualify for the Darwin Awards: the site features a "Stupid Story of the Week," which also includes and award for the "All-around Dumbest." As an example, this week's "dumbest" award goes to the bank robber whose underwear exploded. You'll just have to read that one for yourself. But let's get back to the crime at hand.
This week's "Stupid Story" is especially . . . well, stupid.
Court TV reporter Tracy Majka found a story in the Lancashire Evening Telegraph that highlights the plight of Clifford Taylor, a Darwen, England homeowner whose house was burgled. A thief had broken a kitchen window to gain entrance and ransacked Taylor's house to steal a number of valuables, including a gnome Mr. Taylor bought while on holiday in Australia. The homeowner dutifully provided a list of the stolen items to the local constabulary. One of those items, the gnome, caught an officer's eye. He remembered seeing the gnome at the house of someone he had visited the day before on an unrelated issue.
The officer went back to that home, the residence of 22-year old Sean Thompson, found the distinctive gnome and promptly arrested Mr. Thompson. At his preliminary hearing in Preston Crown Court, Mr. Thompson's solicitor told the court that properties around the victim's home in Hannah Street were being demolished. According to the newspaper account, Thompson's solicitor, Richard Hunt, defending, then tried this excuse with the court: "The defendant never realised the property was still, in effect, being occupied."
Nice try. Still stupid.
Is There A Remedy For Every Wrong?
If you're Wes and Shirley Tilton, then right about now you're pretty sure there's not. Here's the setup for their sad tale of woe. They own two parcels of residential real estate in Contra Costa County. A local Reclamation District decided to build a levee across their properties. In turn, Mr. and Mrs. Tilton built two homes on top of the levee.
Then the problems started.
Apparently, the levee wasn't constructed properly and didn't provide appropriate subjacent support for the homes. The foundations cracked and part of the house pulled away from the rest of the house and started to sink into the bay. The Tiltons submitted an administrative claim for damages, which the Reclamation District denied. Then they sued in Court, alleging damages for inverse condemnation, negligence, trespass, nuisance, failure to provide lateral and “subjacent” support, maintaining public property in a dangerous condition, and a violation of 42 United States Code section 1983 (civil rights violations).
The trial court dismissed all the counts, and the appellate court upheld the dismissal. Ouch.
The courts based their decision on prior cases that essentially immunized the government from damages for its negligence. Quite surprisingly, none of these cases were cited by the parties in their briefs to the court of appeals - the court found those cases on their own. Here's the language from the 1959 case of Hayashi v. Alameda County Flood Control District that turned out to be the pivotal turning point against the Tiltons: "In [Hayashi] the district did not cause the original break in the levee, nor is it charged that such occurred by reason of negligence. Negligent design or construction is not charged, nor did the district deliberately divert the water onto the plaintiffs’ lands. It is charged with negligent failure to act thereafter, that is, with negligence in the operation and maintenance of its property. In our opinion that does not charge a taking of property for public use under the Constitution.”
The appellate court next went on to address the other tort causes of action, and dispatched those as well with equal ease. The court reasoned that since the Reclamation District had no mandatory duty to maintain the levee (that's for me hard to believe), then it could not be sued because it breached no duty. It just doesn't make sense that any government agency could build a levee designed to keep floodwaters out and then claim that it had no mandatory duty to maintain it. If that was the case, then why build it in the first place?
The reasoning in the case is difficult to stomach, especially when the Tiltons are looking at losses exceeding $1,000,000. Yes, I understand it's not the damages that determine whether a party has a remedy or not, but it's the government's failure to do its job that should have provided the compensation. Beyond the court's result, the opinion has a number of grammatical defects that further call its reasoning into question. As just one example, the opinion uses "as to" at least ten times. Ugh.
Oh yes, did I forget to mention one of the sections of the California Civil Code? Here's one the court didn't cite: California Civil Code section 3523.
Contested Water District Elections Stir Controversy
Elections are heady events, especially for those who run for office and their staffers who help them get elected or in some instances, lose the election.
Or so I'm told.
Beyond the November vote and the primaries sometime earlier in the year, the rest of us barely pay attention unless we're forced to look at those obligatory "Vote for Me" signs that sprout every September and never quite really tell us anything other than the candidate's name. Oh, and I forget the amount of newspaper, television, radio and now internet bandwidth devoted to pre-election polls and outcome predictions based on exit polls.
I'm not cynical, really I'm not.
But why the vote mattered to Thelma Jean Robson, I really don't know. A Google search mainly reveals this case. She's a voter in the Upper San Gabriel Valley Municipal Water District, and after one of the winners of the 2004 election resigned, she must have been very upset with the appointee. Here's the deal.
There are five members of the board of directors who serve four-year terms. Elections are held every two years, however, so three seats are up at a time. Kenneth Manning won in 2004, and then four months later, resigned. The board appointed Leon Garcia to take his place.
That's where the trouble began. A dispute arose whether Mr. Garcia was appointed for the remaining 18 months of Mr. Manning's term or until the next November's election. Perhaps it's more accurate to say that the dispute arose after the board (and Mr. Garcia) voted to have Mr. Garcia fill the remaining portion of Mr. Manning's term.
Believe it or not, this issue has never come up in California before. It took the court only 18 pages, however, to uphold Ms. Robson's position that Mr. Garcia's appointment would last until the next general election, this November. Perhaps Ms. Robson will run for the seat, now that she succeeded in opening it up.
Best of luck to the candidates.
Coast to Coast Internet Radio Takes on Vioxx
In an interesting development in Vioxx news, a New Orleans judge ruled that the $50M in compensatory damages were “grossly excessive.” The judge upheld the verdict, finding Merck liable in the case, but ordered a new trial to decide how much the manufacturer must pay a retired FBI agent who suffered a 2002 heart attack after taking the painkiller for 2½ years.
Join me and my co-hosts and fellow Law.com blogger Bob Ambrogi as we turn to two expert attorneys representing Vioxx clients for the lowdown. Coast to Coast welcomes Attorney Tom Girardi of the well-known firm of Girardi Keese in Los Angeles and Attorney Paul Sizemore from the national firm of Beasley Allen located in Montgomery, Alabama. Don’t miss this latest interview.