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Case Summaries

Family Law

[05/21] Astrue v. Capato
In a case in which a widow gave birth to twins conceived through in vitro fertilization using her husband’s frozen sperm and then applied for Social Security survivors benefits for the twins, the Social Security Administration (SSA) denial of her application is upheld, where: 1) under 42 USC section 416(h)(2)(A), the children could would qualify for benefits only if they could inherit from the deceased wage earner under state intestacy law, and Florida law did not allow them to; 2) the SSA's interpretation of the statutory scheme was reasonable and entitled to Chevron deference.

[05/16] Marriage of Green
In a dispute between ex-spouses over the husband's CalPERS pension, which included four years of credit for past military service purchased with community funds, the trial court's characterization of the credit as the husband's separate property is reversed, where prior to the marriage, the husband's right to the credit amounted to no more than an expectancy, which is not a property right divisible upon dissolution of marriage, since he held no unconditional, contractual right to the payment of benefits, or even a nonvested right to such credit, before he actually purchased the credit during the marriage, using community funds.

[05/15] In re A.S.
In juvenile court proceedings involving a brother and sister whose permanent plan called for them to be placed in foster care: 1) an order permitting the siblings to be placed separately is affirmed, and 2) an order approving an application to administer psychotropic medication to the boy is affirmed, as California Rules of Court, rule 5.640(c)(8) comports with due process.

[05/14] In re B.C.
In a case in which a man filed a JV-505 statement, requested genetic testing to determine whether he was a biological father, and filed a declaration stating that he wished to meet his paternal obligations, the Court of Appeal holds that under California Rules of Court 5.635 it was error for the juvenile court to have authorized testing but to have required the man to pay for it, and to have failed to make a determination of biological paternity.

[05/14] Southerland v. City of New York
In a suit by a father and his children under 42 USC section 1983 asserting that a children's services caseworker employed by the City of New York entered their home unlawfully and effected an unconstitutional removal of the children into state custody, a grant of summary judgment to the caseworker is: 1) affirmed with respect to the father's substantive due process claim, under the "brief removal" doctrine, but 2) vacated with respect to the father's and children's Fourth Amendment unlawful-search and Fourteenth Amendment procedural due process claims, and the children's Fourth Amendment unlawful-seizure claim.

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Immigration Law

[05/21] Holder v. Martinez Gutierrez
A Board of Immigration Appeals (BIA) denial of cancellation of removal is upheld, where: 1) the aliens lacked the required years of continuous presence and lawful permanent resident status; and 2) the BIA's rejection of imputation of their parents' years of continuous presence and lawful permanent resident status was based on a permissible construction of the cancellation of removal statute, 8 USC section 1229b(a).

[05/16] People v. Shokur
In a criminal case in which an Afghani national who was in removal proceedings filed a "nonstatutory" motion to raise a postjudgment claim of ineffective assistance of counsel on the basis of counsel's failure to advise him of the immigration consequences of his guilty plea, the superior court's denial of the motion is affirmed, where: 1) the court was without jurisdiction to hear the motion, as case law did not require a nonstatutory motion safety net to provide a remedy when other remedies through which relief might have been obtained were no longer available; and 2) in any event, the defendant failed to make a prima facie showing that he would have been entitled to relief as a result of prior counsel's conduct.

[05/10] Da Silva Neto v. Holder
In removal proceedings against a Brazilian national who admitted to sufficient facts to support a finding of malicious destruction of property under Mass. Gen. Laws ch. 266, section 127, a petition for review of the BIA's denial of cancellation of removal is denied, where the BIA's conclusion that the petitioner committed a crime involving moral turpitude, and thus could not qualify as a person of good moral character, was neither arbitrary nor contrary to law.

[05/02] Cheung v. Holder
In a case in which a native and citizen of Hong Kong was denied cancellation of removal on the ground that he lacked ten years' continuous physical presence in the United States, a petition for review is denied, where a notice to appear (NTA) was effective to stop accrual of time, despite the fact that the charge alleged, fraud, was subsequently withdrawn and a new charge, overstaying, was added with the filing of Form I-261 approximately six months later, since the NTA itself was never withdrawn.

[05/01] Akinsade v. Holder
In removal proceedings against a lawful permanent resident who had been convicted of embezzlement by a bank employee under 18 USC section 656, a petition for review of a BIA finding of removability is granted, where none of the facts to which the petitioner actually and necessarily pleaded to establish the elements of his embezzlement offense revealed whether that offense was committed with a specific intent to defraud, so it was error for the BIA to infer that the conviction was for an offense involving fraud or deceit and thus an aggravated felony subjecting the petitioner to removal.

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Property Law & Real Estate

[05/22] Wag More Dogs, LLC v. Cozart
In a case challenging the constitutionality of a city's sign ordinance, the district court's dismissal of the complaint is affirmed, where: 1) the sign ordinance was content neutral on its face; 2) as applied to the plaintiff, the sign ordinance was a restriction on commercial speech; 3) the sign ordinance satisfied intermediate scrutiny and was not an impermissible content-based restriction on the plaintiff's speech; 4) the sign ordinance was not unconstitutionally vague; and 5) the city's provision for allowing special exceptions did not operate as an unlawful prior restraint on speech, but rather met the standards required of content-neutral licensing regulations.

[05/22] Deutsche Bank National Trust Co. v. McGurk
In a declaratory relief action brought by the assignee of a deed of trust, seeking a determination of the deed's validity, the trial court's judgment in favor of the homeowner is reversed and the case remanded, where the interest of the assignor was not resolved in a quiet title action brought by the homeowner, who dismissed the assignor from the lawsuit, so the judgment in favor of the homeowner in the quiet title action did not bar the assignee's action.

[05/21] Campbell v. Ford Motor Co.
In a premises liability action alleging that the plaintiff had been diagnosed with mesothelioma as a result of her exposure to asbestos from laundering her father's and brother's asbestos-covered clothing during the time they worked with asbestos as independent contractors hired by the defendant to install asbestos insulation at the defendant's plant, a judgment finding the defendant liable for 5% of the damages is reversed, where: 1) the applicable statute of repose did not bar the claims; but 2) an employer has no duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer's business, so the defendant owed no duty to the plaintiff.

[05/21] Chao Fu, Inc. v. Chen
In a case involving causes of action relating to the defendant's foreclosure under a deed of trust, which was preceded by the plaintiff's assignment of claims related to the foreclosure to a third party, a suit in which the defendant sued the third party, and a return of the assignment to the plaintiff, a motion for summary judgment granted on the basis that the claims were barred by the compulsory cross-complaint statute is reversed, where the defendant failed to establish as a matter of law that the plaintiff's assignment of claims to the third party also transferred its interests in the property such that the third party could have had any of the property-related claims when she filed her answer in the defendant's case against her.

[05/17] Hererra v. Federal National Mortgage Ass'n
In a suit by defaulting homeowners to set aside a nonjudicial foreclosure sale on the grounds of an invalid assignment of the deed of trust, the trial court's sustaining of a demurrer without leave to amend is affirmed, where: 1) the plaintiffs granted a nominee beneficiary authority to assign when they signed the deed of trust; 2) judicially noticed documents established a chain of title in which the beneficiary assigned its interest to the lender's successor, which assigned its interest to the defendant; 3) there was no error in sustaining the demurrer as to the cause of action for violation of Civil Code section 2932.5, since that section is inapplicable to deeds of trust.

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