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BAKER, KEENER & NAHRA, LLP

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Posted by on Mar 23, 2016 in Publications |

Court of Appeals: All Websites Must Revise Their Terms of Use

Court of Appeals: All Websites Must Revise Their Terms of Use

In a case of first impression for California appellate courts, on March 17, 2016, Brett Long v. Provide Commerce, Inc. defined what sort of website design elements would be necessary or sufficient to create an enforceable browsewrap agreement in the absence of actual notice of said agreement. For some of you that sentence might be just a bunch of technical and legal jargon that doesn’t mean much, so let’s take a step back and get everyone on the same page before diving in. If you’re already on that page, feel free to skip the next couple of sections What’s a “browsewrap agreement”? Go to a website, any website (or you could, you know, just stay on this website), and take a look at the bottom of the page. I’ll use the Google search website for our example, though, probably a page everyone is familiar with. At the bottom right of the page (or at the bottom center-ish of the page if you’re on a mobile device), you’ll see the...

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Posted by on Mar 14, 2016 in Publications |

Payment of Settlement by Defendant Makes Plaintiff the Prevailing Party

Payment of Settlement by Defendant Makes Plaintiff the Prevailing Party

Last week the California Supreme Court delivered a stern lesson to litigants about the critical importance of ensuring that every settlement agreement is carefully drafted and reviewed for the specific case it is intended to resolve. This case should serve as a reminder that a failure to constantly evaluate settlement agreements for potential ramifications can create unexpected – and unwanted – results and should deter litigants and attorneys alike from simply recycling the same old settlement agreements over and over again without reviewing and revising them. Plaintiff Prevailed By…Settling? In its opinion in Maureen DeSaulles v. Community Hospital of the Monterey Peninsula the Court found that, under Code of Civil Procedure section 1032, the plaintiff should have been deemed the prevailing party – and thus entitled to recover certain litigation costs – because the payment of settlement sums by defendant to plaintiff was a “net monetary recovery.” In so finding, the Court held that “[w]hen a defendant pays money to a plaintiff in order to settle a case, the...

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Posted by on Feb 20, 2016 in Publications |

Apple is Going to Make a Bigger Rock

Apple is Going to Make a Bigger Rock

Can God make a rock so large he can’t move it? Maybe God can’t, but I can guarantee that Apple will. Earlier this week a federal court ordered Apple to create a “backdoor” or “master key” that would allow the FBI to more easily access data on an iPhone used by one of the terrorists involved with the mass shooting in San Bernardino (that’s simplifying the task, of course, but essentially what is being asked). The order was issued after the FBI reported to the court that they were unable to access the iPhone’s data despite their best efforts. In response, Apple made it clear, in a multi-paragraph letter, that it will fight this order up to the United States Supreme Court if need be (which, incidentally, could drag this fight on for years given the recent vacancy left by Justice Scalia’s tragic death and the inevitable, lengthy battle between Congress and the President over his successor). While much has been said, and will continue to be said, as...

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Posted by on Jan 11, 2016 in Publications |

Court of Appeals reminds litigants: If there’s no duty, there’s no lawsuit

Court of Appeals reminds litigants: If there’s no duty, there’s no lawsuit

What do a haunted house, hidden explosives, and an overweight package all have in common? These are the unusual fact patterns of a trio of recent cases from the end of 2015 that are all simply twists on the same story – if there’s no duty, there’s no lawsuit. In Scott Griffin v. The Haunted Hotel, Inc., the plaintiff became frightened by an actor in a haunted house event and fell when he attempted to run away; in Mario Garcia, et al. v. Michele Holt, et al., the plaintiff landscaper was injured when he stepped on hidden explosives in a rental unit’s yard; and in Stephen Moore v. William Jessup University, the plaintiff UPS driver was injured when he lifted a box that inaccurately listed the weight. So what is duty and how does it tie all of these lawsuits together? Put simply, duty is a legal obligation to do (or not do) something for another person or entity. Some duties can be complex, like an insurance company’s duty...

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Posted by on Aug 17, 2015 in Publications |

Insurers gain new leverage against cumis counsel under the Hartford v. J.R. Marketing decision

Insurers gain new leverage against cumis counsel under the Hartford v. J.R. Marketing decision

The story so far So here’s the basic situation. The insured (J.R. Marketing) asks its insurer (Hartford) to cover its defense against a claim and to pay cumis counsel (Squire Sanders) to provide this defense. Hartford finally agrees to pay Squire Sanders after being ordered by the court to cover all “reasonable and necessary” fees incurred in the defense. Upon getting the final bill, however, Hartford claims that Squire Sanders padded its bills by charging unreasonable fees. Squire Sanders, in a tremendous show of loyalty, promptly turns around and points the finger at J.R. Marketing, claiming that J.R. Marketing should have to compensate Hartford for the overbilling and even going so far as blaming J.R. Marketing for failing to prevent the overbilling in the first place. Not surprisingly, the California Supreme Court disagreed with Squire Sanders. After a lengthy discussion, the Court concluded that if Squire Sanders has been unjustly enriched by being paid for unreasonable work, under the circumstances of this case (i.e. the trial court’s order to...

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Posted by on Aug 3, 2015 in Publications |

California Supreme Court endorses reformation of unambiguous wills based on clear expression of testator’s intent.

California Supreme Court endorses reformation of unambiguous wills based on clear expression of testator’s intent.

After a person has died and there is a conflict between an unambiguous will and his clearly expressed intent, which one wins? It depends, said the California Supreme Court in a significant decision issued earlier in this week in which the Court made two important reversals of long-standing law by holding that intent can not only win out over unambiguous writing under some circumstances, but that an unambiguous will can be reformed to reflect this intent. The decedent in this case, Irving Duke, prepared a holographic will in 1984 in which he left all of his property to his wife, with the exception of “the sum of One dollar ($1.00) and no more” to his brother. The will further stated that Mr. Duke had “intentionally omitted all other persons, whether heirs or otherwise” who were not mentioned in the will and that he intended to “specifically disinherit all persons whomsoever claiming to be.” Although Mr. Duke accounted for the circumstance in which he and his wife died at the...

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