Success in the Court of Appeal of the State of California

We are pleased to announce that the Court of Appeal of the State of California, Second Appellate District, Division Two, in Case number B228431, as affirmed in full our client's trial court judgment.

We filed the underlying lawsuit on behalf of our client on May 22, 2009. Our client had been defrauded out of his business. Defendants ever uncooperative in every stage of litigation, especially when it came to responding to discovery. The case was set for jury trial on August 2, 2010. Defendants brought a last minute ex parte application to delay the trial, which the trial court rightfully denied.

Trial commenced as scheduled. After a seven-day jury trial, the jury returned a general verdict on all counts against all Defendants. The Hon. Mark V. Mooney signed the Judgment on Verdict after Jury Trial on August 30, 2010. Judgment Debtors brought Motion for New Trial, which motion was denied. Then, Judgment Debtors gave notice of Appeal.

The appeal was assigned to The Court of Appeal of the State of California, Second Appellate District, Division 2. We assisted client in defending the appeal, and filed Respondent's Reply Brief on April 18, 2011. The three-judge panel of the District Court of Appeal ("DCA") heard oral arguments on September 23, 2011, at the Courthouse on 300 South Spring Street, Los Angeles, California 90013. On October 11, 2011, the DCA issued its Opinion, affirming the judgment in full. The decision was authored by Justice Kathryn Doi-Todd, and justices Judith Ashermann-Gerst and Victoria M. Chavez concurred on the opinion.

Originally, the California Supreme Court was the only appellate court in the State of California. With the growth of the State and increase in number of cases, the Legislature amended the California Constitution in 1904 and authorized the establishment of lower appellate courts. Today, California Courts of Appeal are broken into 6 appellate districts. The district is subdivided into 8 divisions. There are four justices in each division, but each case is heard by a randomly selected panel of three justices. Notably, trial courts throughout California are bound by published opinions from all appellate districts. Auto Equity Sales vs. Superior Court (Hesenflow), 57 Cal. 2d 450 (1962).

Photo of the Ronald Reagan Building courtesy of Wikipedia. For further information, refer to the web site of Court of Appeal, or run a search on Google.

Robin Mashal is a California litigation attorney and the managing shareholder of Century City Law Group, APC, located at 1801 Century Park East, Ninth Floor, Los Angeles, California 90067-2302.  He is licensed before all courts of the State of California, the United States District Court for the Central District of California, United States Ninth Circuit Court of Appeals, and the United States Supreme Court. He can be reached at (310) 286-2000.

Google Pays $500M to Avoid Prosecution for Running Canadian Pharmacy Ads

Google, Inc. (NASDAQ: GOOG) has entered a Non-Prosecution Agreement ("NPA") with the United States Department of Justice ("DOJ"), whereby Google will disgorge its AdWords gross revenues for running Canadian pharmacy ads to U.S. consumers, and the DOJ will forgo criminal prosuection against Google. United States has passed very strict legislations, including the Food, Drug, and Cosmetic Act (21 U.S.C. § 331) and the Controlled Substance Act (21 U.S.C. § 952), to regulate foreign pharmacies' sales of prescription drugs to U.S. customers. Despite these regulations, U.S. residents have purchased large volumes of prescription drugs from foreign sources becuase the prices tend to be some 85 percent lower than U.S. drugstore prices. In May 2011, DOJ initiated an investigation accusing that Google has been running online advertisements for Canadian pharmacies which sell to U.S. consumers counterfeit drugs, or dispense drugs without requiring medical prescription. By entering into NPA, Google put an end to the government investigation and prosecution. However, this settlement did not come cheap for Google, as it has agreed to pay $500,000,000 (its gross revenue generated from selling AdWords advertisements to Candian pharmacies) to the U.S. government. As well, Google has accepted corporate responsibility "that it improperly assisted Canadian online pharmacy advertisers to run these advertisements that geo-targeted the United States through AdWords," and that Google was aware of these problems as early as 2003. Launched in year 2000, AdWords is currently Google's primary advertising product and its main source of revenue. AdWords offers various advertising setups, including pay-per-click, cost-per-thousand. Google promotes its advertising service saying:

"Google AdWords is a service that lets you create and run ads for your business, quickly and simply.… AdWords ads are displayed along with search results when someone searches Google using one of your keywords. Ads appear under 'Sponsored links' in the side column of a search page, and may also appear in additional positions above the free search results. That way, you'll be advertising to an audience that's already interested in your business."

Google, Inc. was founded in 1998 by Sergey Brin and Larry Page while they were PhD candidates at Stanford University. The company is currently headquartered in Mountain View, California, yet has become one of the most publicized multinational company. In 2010, Google generated $29 Billion in revenue--$28 Billion of which was from advertising revenues--and showed profits of $8 Billion. The materials for this blog were gathered from various sources including San Francisco Chronicle, DOJ press release, Los Angeles Times, Fox Business and Wikipedia. For additional information, run a search on Google. 

Robin Mashal is a California litigation attorney. He can be reached at (310) 286-2000.

City of Los Angeles Fires Photo Cop

On July 27, 2011, the Los Angeles City Council unanimously voted against renewing the City's red light camera contract with American Traffic Solutions, which contract expires July 31, 2011. This vote come on the heels of Los Angeles Police Commission's vote on June 7 to end the photo enforcement program. The contract which costs the City $2.7 Million a year, has been losing $1.5 Million a year. Red light cameras have been used in Los Angeles since 2004, during which period some 180,000 photo citations have been issued. Currently, some 65,000 unpaid photo tickets are outstanding, and LA City Council members blame the losses on Los Angeles Superior Court's inability to enforce photo citations.

The Los Angeles Police Department's web page on Automated Photo Red Light Enforcement Program states: "Running a red light is a serious problem. Nationally, approximately 1,000 people die each year, and another 200,000 are injured as a result of a motorist running a red light...." Although the statistics showed red light cameras had contributed to increased saftey, the current financial concerns were a driving factor in doing away with red light cameras; the $446 fine per ticket could not cover the program's costs. Red light cameras have also been referred to as "red light safety camera," "intersection safety camera," or just "photo cop." This technology was initially developed in the Netherlands in 1965, and has been used for traffic enforcement in Israel going back to 1969. The technology first came to use in the U.S. in the 1990's, and has been used in 26 states and the District of Columbia. Red light cameras have been the subject of various legal challeges in the United States, including those based on due process, passenger privacy, and the high costs of fines. Althouth the City of Los Angeles will cease further use of red light cameras, neighboring cities such as Culver City and Beverly Hills will continue their programs. The materials for this blog were gathered from the following sources LAPD web site, Wikipedia, Los Angeles Times, Marvista Patch, and the Washington Post. For additional information, run a search on Google. 

Robin Mashal is a California litigation attorney. He can be reached at (310) 286-2000.

New Activities in BP Litigations

On April 20, 2010, an oil rig operated on behalf of BP at the Gulf of Mexico erupted, causing the largest, most publicized oil spill in recorded history. The economic losses and envioronmental damages were felt in the gulf states and beyond. Some 350 lawsuits were filed, which were eventually consolidated into a multi-district litigation lawsuit (MDL No. 2179) before the Honorable Judge Carl J. Barbier in the United States District Court, for the Eastern District of Louisiana, Case number 2:10-md-02179-CJB-SS. April 20, 2011, the anniversary of the incident, saw a large amount of litigation activity. Several pleadings were filed on April 20, 2011: First, BP filed a Cross-Claim against Cameron International Corporation ("CIC"), the manufacturer and maintainer of the “blowout preventer” which was used at the oil rig in the Gulf of Mexico. Based on the allegations in the Cross-Claim, BP is a co-lessee of the Macondo Prospect. BP hired Transocean Inc. to drill an exploratory well for oil and gas. Transocean used the Deepwater Horizon drilling rig. CIC provided the "blowout preventer" unit and maintenance on it. The Cross-Claim alleges that CIC provided an unreasonably dangerous product, that CIC negligently maintained the blowout preventer, the CIC negligently modified the blowout preventer, for contribution, suborogation, and apportionment of liability. Second, BP filed a Cross-Complaint against Transocean Ltd. and related entities. The Cross-Complaint alleges that Transocean was the owner and operator of Deepwater Horizon, a mobile offshore drilling unit, that on April 20, 2010 the unit exploded and caught fire and it sank two days later, causing an oil spill that continued till July 15, 2010. The Cross-Complaint alleges causes of action for breach of contract, unseaworthiness, negligence, contribution, suborgation, and declaratory judgment against Transocean. Finally, BP filed an original Complaint against Halliburton Energy Services, Inc. This action is brought in admiralty, and is filed in the United States District Court for the Southern District of Texas, Houston Division, Case number 4:11-cv-1526. The complaint states that it is filed "as a protective companion action" to the two pleadings referenced above, and alleges fraudulent conduct, fraudulent concealment, negligence, contribution and suborgation causes of action. The Oil Polution Act of 1990, legislated largely in response the the Exxon Valdez incident, provides certain liability limits for oil spill damages. Section 1004 of this Act provides:

"The liability for tank vessels larger than 3,000 gross tons is increased to $1,200 per gross ton or $10 million, whichever is greater. Responsible parties at onshore facilities and deepwater ports are liable for up to $350 millon per spill; holders of leases or permits for offshore facilities, except deepwater ports, are liable for up to $75 million per spill, plus removal costs. The Federal government has the authority to adjust, by regulation, the $350 million liability limit established for onshore facilities."

Plaintiffs' lawyers have been concerned that BP may rely on the above provision to limit its liabilities to only $75 million. 

Robin Mashal is a California civil litigation attorney. He may be reached at (310) 286-2000.

Tsunami and the Law

When great disasters such as Tsunamis hit, they tend to dominate the news on every channel such as been the case with the recent Japanese tsunami. This large tsunami which was caused by an earthquake in the Pacific Ocean near Japanese shores, measuring 9.0 on the Richter scale, drove large waves inland, causing people, vehicles and buildings to be washed away, and causing substantial damage to the Japanese nuclear facilities.

Tsunami is a Japanese phrase which literally means "ocean waves." In English literature, this phenomenon is sometimes referred to as a "seismic sea wave" or a "tidal wave." It is often caused by submarine earthquakes which occur less than 30 miles (50 kilometers) beneath the ocean floor, although it may also be caused by submarine volcanic eruptions or submarine landslides.

This article focusses on the legal ramifications of a tsunami. Although there may not be a per se body of law on tsunamis, the law can perhaps be guided from the related elements--earthquakes and water waves--around which a developed body of law exists.

California is an earthquake prone state and California's west coast borders the Pacific Ocean. However, earthquake insurance is not automatically included in homeowners' insurance policies. There are porperty owners who take the risk of not purchasing the earthquake coverage. In 1994, when the great Northridge earthquake occured, a large number of properties suffered structural damages. Those who did not have insurance coverage were forced to pay for the damages out of their own pockets, or simply abandon their properties. The Japanese 9.0 magnitue "megathrust" was many times larger that the Northridge 6.8 magnitude earthquake. What if (God forbid) that magnitude tsunami were to hit the California coasts? What would the uninsured do? Better yet, is tsunami damage even covered under earthquake policies? Would it be covered under flood insurance policies?

Tsunami's often exert such a large force that fundamentally affect the structure of the Earth. Due to the recent tsunami, the axis of the Earth has shifted, and the main island of Japan has moved approximately 8 feet (2.4 meters) closer to the United States' west coast. The question is, who lost those 8 feet of land? Altough I don't believe this question has ever been legally addressed, a similar issue received substantial attention in early American law. During the 18th and 19th Centuries, many relied on waterways as a transportation source and water source. Land that bordered on water was substantially more valuable, and hence, land was often subdivided in way that each parcel would receive water rights (so-called "riperian rights"). However, water tends to change course over a period of time, resulting in phonomena referred to as accession and avulsion. "Accession" is when the water leaves deposits on a shore, and "avulsion" is when water washes away soil from a shore. As a result, water may move outside the borders of one land and move further inside another land. American courts addressing such disputes often ruled to readjust the property lines to the center of the current waterway, therefore allowing all lands to maintain water access.

The recent tsunami caused large damages to the Japanese nuclear power plants. Fear of nuclear leakage not only caused several Japanese cities to turn into ghost towns, they also raised panic amongst people living as far away as California. People wondered whether such debris can truly travel so far away, and if they do, can they truly pose a danger to California residents? If these fears are confirmed, would there be any legal recourse? I am not aware of any case law on point, although existing cases may lead the way by analogy. Traditionally, the cause of action for "trespass" dealt with visible objects travelling from one boundary to another. An example would have been on person's cattle crossing over to a neighbor's farm without permission. By contrast, a cause of action for "nuisance" traditionally dealt with invisible matters, such as excessive noise from a neighboring land. In Indiana Harbor Belt Railroad Co. v. American Cyanamaid Co., 916 F.2d 1174 (7th Cir. 1990), Judge Posner set a new standard by allowing a neighboring landowner to sue freight carrier for trespass concerning invisible gas fumes that travelled to his land as a result of derailment. By analogy, California residents may have a cause of action against the Japanese government for trespass, should sufficient nuclear particles reach their lands from the Japanese reactors.

An interesting question may arise if a tsunami moves a part of the shore under water, or washes additional soil ashore causing a distance between the shore and what used to be beachfront properties. Would the courts extend the old case law to such cases?

For additional information refer to articles by CNN, New York Times, Los Angeles Times, Associatged Press, MyDesert.com, Encyclopedia Britannica, and Wikipedia. For additional information run a search on Google.

Robin Mashal is a Los Angeles business attorney. He can be reached at (310) 286-2000.

Robin Mashal is Selected to Southern California Super Lawyers Magazine - Rising Stars Edition

I am honored to be named on the 2011 Rising Stars list of the Southern California Super Lawyers magazine. Less than 2.5 percent of attorneys receive this distinction each year. I have been a member of the California State Bar since December 1999. During my 11 years as a licensed attorney, I have fought zealously to represent the interests of my clients. I received my bachelor of science degree in Accounting from the University of Southern California Marshall School of Business in 1994. I went on to earn a J.D. from Loyola Law School in Los Angeles, where I was a Production Editor of the Loyola Entertainment Law Journal and was selected to the Dean's Honor List. "Rising Stars" and "Super Lawyers" are registered marks of Thomson Reuters. Thomson Reuters is an international information company, which was formed when Thomson Corporation purchased Reuters in 2008. The company's shares are listed on the Toronto Stock Exchange (TSX: TRI) and the New York Stock Exchange (NYSE: TRI). One of Thomson Reuters' subsidiaries is West (formerly, West Publishing) which publishes a broad range of legal, business and regulatory materials. Many legal professionals rely on West's materials, including its federal and state court reporter systems, and the online research materials on Westlaw. For additional information visit the web sites of Thomson Reuters, Super Lawyers, West, and Wikipedia.

Robin Mashal is a Los Angeles business attorney, and the managing shareholder of Century City Law Group, APC. Mr. Mashal has been admitted to the State Bar of California and the Bar of the United States Supreme Court. He can be reached by phone at (310) 286-2000.

Your Mobile Phone, Your Text Messages, and the California Law

The use of cellular phones and PDA's is becoming more and more prevalent, and the amount information stored in them is expanding exponentially. This articles discusses some recent legal developments in this area.

In a recent decision in the case of The People vs. Gregory Diaz, the California Supreme Court upheld a criminal conviction based on a warrantless search of the suspect's cellular phone incident to his arrest. The Ventura County police had been surveilling a drug deal though a wire worn by a police informant. After the drug deal went through, police officers pulled over the drug dealer and arrested him. At the time of the custodial arrest, police found some drugs and a cell phone on the dealer's person. When the officers interviewed the dealer at the precinct he first denied the drug deal. But when the officers showed him the text message on his cell phone indicating the drug price, he admitted to the deal. Later, the dealer moved to suppress the evidence as the fruit of illegal search and seizure under Fourth Amendment to the United States Constitution. However, the California High Court upheld the search and the evidence found.

During the past few years, the California legislature has enacted several laws to respond to the growing use of wireless communication devices (text message) and wireless telephones (cell phone). Effective July 1, 2008, California Vehicle Code Section 23123.5 prohibits all drivers from text messaging while operating a motor vehicle. Effective January 1, 2009, California Vehicle Code Section 23123 prohibits all drivers from using a cellular phone while operating a motor vehicle, although drivers 18 years or older may use hands free devices. Finally, California Vehicle Code Section 23124 prohibits drivers under the age of 18 from text messaging or using cell phones while driving, even if they have a "hands free" device, with the exception of some emergency uses. For additional information, visit the web site of the California DMV.

Most people know that their cell phone has a global positioning system (GPS) that which allows the phone company to track where the cell phone is located at any point in time. Many do not realize, however, that the photographs taken by the cell phone contain GPS coordinates of the location. This so-called "geo-tag" information may inadvertently give away a person's private information such as their residence address. Some commenators have raised concerns about these hidden codes embedded on photographs, and their resulting invasion of privacy. We may see some lawsuits in this regard in the near future.

Robin Mashal is a Los Angeles business attorney, and a partner at the law firm of Hong & Mashal LLP. Mr. Mashal has been admitted to the State Bar of California and the Bar of the United States Supreme Court. He can be reached by phone at (310) 286-2000.