Law Office

Ninth Circuit rules boat owner has no duty to keep a lookout

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In Holzhauer v. Rhoades (2018 9th Cir.) 2018 WL 3795779, the Ninth Circuit Court of Appeals held that a boat owner who is a passenger on his boat has no duty to keep a lookout unless the owner-passenger knows that the person operating his boat is likely to be inattentive or careless or the owner-passenger was jointly operating the boat at the time of the accident. The joint operation is not viewed over the course of the entire trip, but instead at the time immediately preceding and concurrent with the accident.

Los Angeles County Superior Court sustained a demurrer to the plaintiff’s wage and hour complaint

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In Shine v. Williams-Sonoma, Inc. (2018) 23 Cal.App.5th 1070, the Los Angeles County Superior Court sustained a demurrer to the plaintiff’s wage and hour complaint on res judicata grounds because his claim could have been raised in a prior wage and hour class action that was settled.  The Court of Appeal affirmed, and held that the release in the prior action was broad enough to encompass the claims asserted in Shine’s action.

Ninth Circuit held that trademark co-existence agreements are enforceable

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In Russell Road Food & Beverage v. Spencer 829 F.3d 1152 (9th Cir. 2016) , the Ninth Circuit Court of Appeals held that trademark co-existence agreements are enforceable and assignable unless the contract provides otherwise.  The court noted that it did not consider the appellants argument that the trademark co-existence agreement is an executory contract that cannot be assigned without the consent of both parties, or that the assignee breached the co-existence agreement because it failed to raise those issues below.

Plaintiff unsuccessfully appeals trial court order

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In Young v. Remx, Inc. (2016) 2 Cal.App.5th 630, 633, a putative wage and hour class action lawsuit, plaintiff unsuccessfully appealed from the trial court’s order compelling arbitration of her individual claims, dismissing her class claims, bifurcating her representative claim pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.), and staying the PAGA claim pending completion of the arbitration on her individual claims.  The First District held that the death knell doctrine did not apply because the PAGA claim remained.

Judgement Creditor obtains order to sell property

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In Tikosky v. Yehuda (2018) 19 Cal.App.5th 1224 , the judgment creditor obtained an order to sell one of the debtor’s properties.  The senior lienholder paid the amount of the judgment lien, and the debtor moved to compel an acknowledgment of partial satisfaction.  The trial court denied the motion,and the court of appeal affirmed because the payment was not made on the judgment but for the judgment creditor refraining to sell the property.

California Finance Lender (CFL) Can Sell Loans to Non-Institutional Investors

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California Finance Lender (CFL) Can Sell Loans to Non-Institutional Investors

In Montgomery v. GCFS, Inc., (June 12, 2015), the Court of Appeal of the State of California, First Appellate District, Division 5, upheld the trial court’s sustaining demurrers from a borrower who tried to evade repayment of a loan because the CFL licensee had sold the loan to a third-party who was not an ‘institutional investor.’  In its decision, the Court of Appeal made clear that Financial Code Section 22340 allows a CFL to sell loans to ‘institutional investors’ but does not prohibit a CFL from selling loans to non-institutional investors.

SEC approves amendments to arbitration codes

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May 27, 2015 – SEC Approves Amendments to Arbitration Codes to Revise the Definitions of Non-Public and Public Arbitrator (Regulatory Notice 15-18)

ffective June 26, 2015, the SEC approved amendments to the definitions of non-public arbitrator and public arbitrator in the Customer and Industry Codes of Arbitration Procedure. The amended definitions provide, among other matters, that persons who worked in the financial industry for any duration during their careers will always be classified as non-public arbitrators, and persons who represent investors or the financial industry as a significant part of their business will also be classified as non-public, but may become public arbitrators after a cooling-off period. The amendments also reorganize the definitions to make them easier for arbitrator applicants and parties, among others, to determine the correct arbitrator classification.

National Adjudicatory Council revises sanctions guidelines

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May 13, 2015 – The National Adjudicatory Council (NAC) Revises the Sanction Guidelines Related to Misrepresentations and Suitability effective immediately

The NAC has revised the Sanction Guidelines related to misrepresentations and suitability. Specifically, the revisions:

  • modify the guidelines related to fraud to advise adjudicators to strongly consider barring an individual respondent for intentional or reckless fraud, and expelling a firm where aggravating factors predominate the firm’s misconduct;
  • modify the guidelines related to suitability to advise adjudicators to strongly consider barring an individual respondent where aggravating factors predominate the respondent’s misconduct and ordering expulsion of a firm in egregious cases;
  • emphasize that FINRA’s disciplinary sanctions should be designed to protect the investing public by deterring misconduct and upholding high standards of business conduct;
  • reiterate FINRA’s longstanding position that sanctions in disciplinary cases should be more severe for recidivists;
  • index the high-end of the monetary sanctions to the Consumer Price Index starting from 1998; and
  • reflect the new FINRA rule numbers for rules that have been adopted into the consolidated FINRA rulebook.