14 Matching Annotations
  1. Mar 2023
    1. THis is the key case re how the scope of a complaint limits the facts you can raise opposing a defendant's msj in California. Important for Wakerling.

  2. Feb 2023
    1. Hebrew Academy of San Francisco v. Goldman42 Cal.4th 883, 887 (Cal. 2007) Copy Cite New folderView bookmarksGet alertsConnect to ClioShare link to this document

      Fuck - holds that late discovery does not toll statute for defamation.

  3. Jan 2023
    1. Blue Anarchy >> The Non-Cruiser's Guide To Central And Southern California Introduction This is a sort of 'Cruising Guide' to free anchorages along the California coast -- specifically for those of us who do not identify as cruisers. Most cruising guides are not written for us, and instead include information on where to find comfortable slips at harbor or good shopping malls on shore. This is a collection of information for those of us who refuse to pay $16 a night for a slip; for those of us who'd rather ride at anchor and then sing a shanty as we haul up the rode on our way out. Our boats are the ones that stare down the manicured yachts which strongly resemble a West Marine catalog, even as we wave with calloused hands. Anchoring is always a little nerve-wracking, but it's also rewarding. Instead of blindly sailing up a dredged channel provided by a marina, riding at anchor requires that we use the lead-line to learn the depth, that we check the bottom-type, and that we're acutely aware of the tides, current, surge, and swell. And so the art of anchoring is reminiscent of sailing in general in its capacity to make us aware of our surroundings. Included is some information on spots to anchor along the California coast from the Bay Area to San Diego. Conspicuously, all of the Channel Islands are omitted, mostly because there are too many anchorages there to write about. Consider those islands One Big Anchorage, and find a cove that looks interesting.


  4. Dec 2022
    1. §5.136            E.  Objecting to ProductionParty deponent. When the description of materials in the deposition notice is not reasonably specified and the deponent cannot identify what should be produced, or if it is otherwise objectionable (e.g., the request is unduly burdensome or seeks documents protected by the attorney-client privilege), counsel for the party or party-related deponent should serve written objections at least 3 days before the deposition as described in §5.135. CCP §§2025.410(a)–(b), 2025.440(a). The client may attend the deposition and refuse to comply with all or some of the requests for production, placing the burden on noticing counsel to move to compel production. CCP §2025.480(a). See chap 15. Or counsel may move beforehand to stay the deposition and quash the notice under CCP §2025.410(a) (see §5.137) or to seek a protective order under CCP §2025.420(a) (see §§5.139–5.141).Nonparty deponent. If the deponent is a nonparty, the procedures to be employed depend on the type of documents sought and who is objecting to production. If the documents sought are certain types of personal records, a nonparty consumer, employee, or custodian (or his or her attorney) may serve written objections without filing a motion to quash. CCP §§1985.3(g), 1985.6(f). See §§5.108–5.130. But when no such objection is made, any other party objecting to the production of records by a nonparty deponent must file a motion to quash the subpoena or a protective order; merely objecting to the production does not prevent a nonparty from producing them. CCP §1987.1.Although a nonparty served with a business records deposition subpoena can seek relief from the trial court before the date set for production, the nonparty is not required to do so and can properly raise objections for the first time at the document production. Unzipped Apparel, LLC v Bader (2007) 156 CA4th 123, 131, citing Monarch Healthcare v Superior Court (2000) 78 CA4th 1282, 1288.

      objecting to request for production included in deposition notice or subpoena


  5. Sep 2022
    1. Defendants argue that plaintiff's request for a pool lift constitutes a "modification" and not an "accommodation" under the statute because it modifies the physical property. (Mot. at 3-6.) However, defendants cite no authority to substantiate this distinction or, if this distinction does exist, to persuade the court that the distinction compels the court to dismiss this claim at this stage. In the Americans with Disabilities Act context, for example, the Ninth Circuit uses the terms "reasonable modification" and "reasonable accommodation" "interchangeably." Wong v. Regents of Univ. of California, 192 F.3d 807, 816 n.26 (9th Cir. 1999). Further, to the extent that a distinction does exist, whether a pool lift is a modification appears to be a question of fact because pool lifts do not necessarily involve physical changes to the premises. (See, e.g., Opp'n at 5 (listing examples of pool lifts) (Docket No. 13).)

      KEY - this is a distinction between FEHA and FHA- FEHA only requires them to pay for accommodations, not modifications (I think). So better to use FHA.

  6. Apr 2022
    1. he court reasoned that a future boycott based on false allegations as to the plaintiff's racist motivations for terminating employees, which apparently had been based upon their use of invalid social security numbers (id. at 1251), clearly constituted "future harm." (Id. at p. 1270.) The court concluded that if the threat of a future boycott were "used as a lever to force [the plaintiff] to submit to [the] defendants' demands that terminated employees be rehired, [the threat] would qualify as extortion." (Ibid.)

      KEY point - although civil extortion requires harm, the harm doesn't have to be capitulation to the demand - it can be some other kind of harm.

  7. Mar 2022
    1. With limited exceptions, any business that accepts and transmits funds, including cryptocurrencies, such as bitcoin, will be considered an MSB and require an MTL in each U.S. state where the business operates. Money transmitters are a part of a broader category of MSBs. So, the terms MTL and MSB are related and often used together. While registration on the federal level is relatively straightforward, the MSB legislation is not harmonized and almost all 53 states and territories have their own regulations, requirements and exceptions for money transmitter licensure. In addition, New York established a separate license for digital currency businesses, the so-called “BitLicense” – a license required to engage in any “virtual currency business activity”.

      MTL = Money Transmitter License

  8. Dec 2021
    1. The district court concluded that K.S. demonstrated her improper purpose by her “attempt to extort fees from District to which Mother was not legally entitled in exchange for Mother foregoing an appeal.” The district court stated: “In short, Mother's offer to ransom her child's IDEA appeal in exchange for money to which her non-attorney advocate was not entitled shows that the purpose of this appeal was not to vindicate the rights of her disabled child.” There is no basis in the record for this finding. First, a reading of the terms of the settlement offer reveals no attempt by K.S. to “ransom” the appeal in exchange for any improper gain. In that settlement offer, K.S. sought both the District's funding of an IEE and the attorney's fees and costs incurred by the Special Education Law Firm. Her settlement offer—clearly contingent upon her child receiving the IEE that K.S. believed C.W. deserved—cannot be characterized as an effort to improperly extort funds. Second, from the start, all K.S. sought was a proper OT recommendation for her child. When the District refused to provide the requested recommendation, she defended against the District's due process complaint, and then, prior to appealing the adverse decision, provided, through the settlement offer, an option to avoid further litigation should the District agree to fund the IEE that she sought for C.W. When the District refused to settle the dispute, K.S. appealed. The record fails to reflect the one-sided effort to “unnecessarily increase the litigation costs incurred by District until it acquiesced to lining the pockets of her non-attorney advocate” described by the district court. Nor do the July 2011 letters counsel exchanged reflect “clearly abusive litigation activity”; they were, rather, a sideshow by overzealous advocates. Aetna Life Ins., 855 F.2d at 1476. Furthermore, the district court's order shows a degree of frustration with K.S. and her counsel. (“Finally, Mother's latest salvo against this Court is entirely consistent with her strategy throughout this appeal of casting unfounded aspersions on the expertise or reasoning of others to deflect from her own shortcomings.”) District Court's Order, p. 14. To the extent that the district court's frustration with K.S. and counsel colored its legal conclusions that these claims were brought for an improper purpose, this was error. As already discussed, no evidence supports an alleged improper purpose. Instead, the record compels the conclusion that K.S. was simply attempting to “vindicate the rights of [her] disabled child.” R.P., 631 F.3d at 1127. K.S.'s steadfast determination to ensure that her child received the appropriate OT is not an improper purpose justifying an award of attorney's fees. Indeed, we have made clear that “anger is a legitimate reaction by parties who believe that their rights have been violated or ignored.” Id. at 1127.

      Good language showing that vigorous special ed advocacy is not for improper purpose

    2. The ADA intimidation claim and the § 1983 claim lack any legal foundation and “the result is obvious.” Karam, 352 F.3d at 1195. The ADA intimidation claim filed under 42 U.S.C. § 12203(b) had an outcome that was clear at the time it was filed. Section 12203(b) states: “It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. ” (emphasis added). By its own terms, protection under the ADA against intimidation does not extend to a plaintiff's attempts to exercise rights granted or protected by the IDEA—the basis of K.S.'s claim in this case. See Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir.1997) (“Because [Plaintiff's] § 1983 complaint against [Defendant] is completely barred by the terms of the statute, we find that her claim is ‘unreasonable’ and ‘meritless.’ ”).

      OH MAN - you cannot base an ADA "intimidation" claim based on exercise of IDEA rights! - is this true for retaliation claims too??

    1. If a parent prevails under the standards set forth in the IDEA and Burlington, the school board must pay for the cost of the non-public education in order to satisfy its legal obligation to provide a free appropriate education. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12 (1993). The “[r]eimbursement merely requires the school board to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [plan].” Burlington, 471 U.S. 359, 370-371 (1985)

      Reimbursements to parents

    2. It is also a long-standing position of the Internal Revenue Service that in a nonemployment context, reimbursements for expenses incurred by a taxpayer on behalf of another are not includible in the taxpayer's gross income. See for example, Rev. Rul. 79-142, 1979-1 C.B. 58; Rev. Rul. 77-280, 1977-2 C.B. 14; Rev. Rul. 67-30, 1967-1 C.B. 9; Rev. Rul. 63-77, 1963-1 C.B. 177; and Rev. Rul. 55-555, 1955-2 C.B. 20.

      Money paid for expenses paid on behalf of another (including a school board) are not taxable.

    3. OFFICE OF CHIEF COUNSEL October 06, 2008 Number: INFO 2009-0124

      IRS Guidance re reimbursements to parents for expenses under the IDEA - nontaxable - so parents do not need to declare.

  9. Nov 2021
    1. 2021 California Rules of Court Rule 7.955. Attorney's fees for services to a minor or a person with a disability(a) Reasonable attorney's fees (1)  In all cases under Code of Civil Procedure section 372 or Probate Code sections 3600-3601, unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney's fees payable from money or property paid or to be paid for the benefit of a minor or a person with a disability. (2)  The court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor or person with a disability and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made, except where the attorney and the representative of the minor or person with a disability contemplated that the attorney's fee would be affected by later events. (Subd (a) amended and lettered effective January 1, 2010; adopted as unlettered subd.)(b) Factors the court may consider in determining a reasonable attorney's fee In determining a reasonable attorney's fee, the court may consider the following nonexclusive factors: (1)  The fact that a minor or person with a disability is involved and the circumstances of that minor or person with a disability. (2)  The amount of the fee in proportion to the value of the services performed. (3)  The novelty and difficulty of the questions involved and the skill required to perform the legal services properly. (4)  The amount involved and the results obtained. (5)  The time limitations or constraints imposed by the representative of the minor or person with a disability or by the circumstances. (6)  The nature and length of the professional relationship between the attorney and the representative of the minor or person with a disability. (7)  The experience, reputation, and ability of the attorney or attorneys performing the legal services. (8)  The time and labor required. (9)  The informed consent of the representative of the minor or person with a disability to the fee. (10)  The relative sophistication of the attorney and the representative of the minor or person with a disability. (11)  The likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney's acceptance of the particular employment would preclude other employment. (12)  Whether the fee is fixed, hourly, or contingent. (13)  If the fee is contingent: (A)  The risk of loss borne by the attorney; (B)  The amount of costs advanced by the attorney; and (C)  The delay in payment of fees and reimbursement of costs paid by the attorney. (14)  Statutory requirements for representation agreements applicable to particular cases or claims. (Subd (b) adopted effective January 1, 2010.)(c) Attorney's declaration A petition requesting court approval and allowance of an attorney's fee under (a) must include a declaration from the attorney that addresses the factors listed in (b) that are applicable to the matter before the court. (Subd (c) adopted effective January 1, 2010.)(d) Preemption The Judicial Council has preempted all local rules relating to the determination of reasonable attorney's fees to be awarded from the proceeds of a compromise, settlement, or judgment under Probate Code sections 3600-3601. No trial court, or any division or branch of a trial court, may enact or enforce any local rule concerning this field, except a rule pertaining to the assignment or scheduling of a hearing on a petition or application for court approval or allowance of attorney's fees under sections 3600-3601. All local rules concerning this field are null and void unless otherwise permitted by a statute or a rule in the California Rules of Court. (Subd (d) adopted effective January 1, 2010.)Rule 7.955 amended effective January 1, 2010; adopted effective January 1, 2003; previously amended effective January 1, 2007.