ebriefs April 16, 2019



Ninth U.S. Circuit Court of Appeals

Civil Procedure

A purported arbitral award was not entitled to enforcement under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards where the parties had fully settled their claims before approaching an arbitrator; the purported arbitration consisted of an impromptu meeting in a building lobby; and the “proceedings” disregarded the terms of three arbitration agreements between the parties and the issuing forum’s arbitral rules.

Castro v. Tri Marine Fish Company LLC; filed April 15, 2019


Cite as 2019 S.O.S. 17-35703


Insurance Law

Washington law applied to a coverage dispute over damage to a gas processing plant in Washington where the facility was the primary subject matter of the policy and this factor outweighed the relative importance of the other considerations identified by §188 of the Restatement (Second) of Conflict of Laws. Under Washington law, an insurer contending that an insured violated a condition precedent to coverage, such as by failing to comply with a notice provision, must demonstrate prejudice from the insured’s failure. A determination that a particular loss was fortuitous could obviate the need to examine whether that loss was caused by an external force.

Ingenco Holdings, LLC v. Ace American Insurance Company; filed April 15, 2019


Cite as 2019 S.O.S. 16-35792


California Court of Appeal

Civil Procedure

The nonmarital biological child of an absentee father who never openly held her out as his own does not have standing under Code of Civil Procedure §377.60 to sue for his wrongful death if she failed to obtain a court order declaring paternity during his lifetime.

Stennett v. Miller; Fourth District, Div. Three; filed April 12, 2019


Cite as 2019 S.O.S. 1788


Criminal Law and Procedure

If a court lacks jurisdiction to grant the relief sought by a defendant’s post-judgment motion, the order denying the motion did not affect his substantial rights as contemplated in Penal Code §1237. Senate Bill No. 620 does not apply retroactivity to cases that became final.

People v. Hernandez; Second District, Div. Six; filed April 15, 2019


Cite as 2019 S.O.S. 1798


Criminal Law and Procedure

While necessary expenses for a criminal defense can include discovery costs, there is no authority for the proposition that routine copying costs are a necessary expense. The terms of the retainer agreement between counsel and a defendant’s mother were relevant in determining whether the county must pay for minor costs for duplicating discovery materials disclosed by the district attorney; the fact that minor discovery costs were covered by a retainer agreement means defendant was not similarly situated to indigent defendants whose ancillary defense costs were not covered by such an agreement. A defendant may not complain of prosecutorial misconduct on appeal unless he timely objected on that basis at trial.

People v. Washington; Third District; filed April 15, 2019


Cite as 2019 S.O.S. 1800


Criminal Law and Procedure

In cases in which a defendant insists on maintaining his innocence of the alleged acts—despite counsel’s advice to admit the acts but deny the necessary mental state—amount to intractable disagreements about the fundamental objective of the defendant’s representation; lawyers must allow their clients to dictate the fundamental objective at trial, and thus must not concede the actus reus of a charged crime over their client’s objection.

People v. Flores; Fourth District, Div. One; filed April 12, 2019


Cite as 2019 S.O.S. 1805


Family Law

The foster care maintenance payment rate increases mandated by the Ninth U.S. Circuit Court of Appeals in California State Foster Parent Association v. Wagner and California State Foster Parent Association v. Lightbourne do not apply retroactively to initial adoption assistance agreements executed before those cases were decided.

California Department of Social Services v. Marin; Second District, Div. Six; filed April 15, 2019


Cite as 2019 S.O.S. 1810