George P. Schiavelli

In this case, plaintiff De Walshe sued defendant Togo's Eateries after the defendant withheld consent to transfer his Togo's franchise to buyers who failed the company's English Language Proficiency Assessment (ELPA), alleging breach of the franchise agreement's prohibition on unreasonably withholding consent, breach of the implied covenant of good faith and fair dealing, and violation of California's Unruh Civil Rights Act. The court granted the defendant's motion for summary judgment on all claims. It held that the contract permitted the defendant to require franchisees to demonstrate English proficiency for training and operations, that the ELPA was a reasonable means to assess this, and that the plaintiff lacked standing under the Unruh Act because the buyers testified they were not discriminated against and the plaintiff was not himself aggrieved. The court also rejected arguments that the Rider imposing the ELPA was invalid or that the test was improperly administered.

business & regulatorycivil rightsprocedure

This case was a class action lawsuit brought against Countrywide Home Loans alleging that the company violated federal and state laws by charging consumers marked-up fees for third-party mortgage services like tax and flood certifications without performing additional work. The plaintiffs claimed these practices breached section 8(b) of RESPA, Regulation X, California Financial Code section 50505, and supported claims under California's Unfair Competition Law (unlawful prong), breach of contract, and fraud. The court granted the motion to dismiss the unlawful UCL claim, holding that RESPA section 8(b) prohibits only kickbacks or fee-splitting arrangements and does not ban mark-ups or overcharges, as confirmed by the statute's plain language, legislative history against price controls, and the majority view among circuits. Because dismissal of the federal claim eliminated jurisdiction, the court remanded the remaining claims to state court.

business & regulatoryprocedure

This case involved Palm Desert National Bank seeking coverage under a financial institution bond from Federal Insurance Company for approximately $1.5 million in losses caused by theft of vault cash by an armored services company, Tri-State, which had been entrusted to transport and load cash into ATMs. The court denied the bank's motion for partial summary judgment and granted the insurer's motion for summary judgment on all claims, including breach of contract and bad faith. The reasoning centered on the bond's coverage for losses "in transit," which the court interpreted as requiring the cash to be in an armored vehicle or during loading/unloading; here the thefts occurred inside Tri-State's office while cash was being sorted, stored, and processed, and the court found this fell outside the policy's scope based on the undisputed facts and contract language.

business & regulatory

This case involves a federal habeas corpus petition filed by Troy Allen challenging his 2000 California state convictions for two counts of pimping and his resulting sentence of 54 years to life under the Three Strikes law based on four prior serious felony convictions. The district court adopted the magistrate judge's report and recommendation, denying the petition with prejudice after reviewing state court records and petitioner's objections. The court determined that the state appellate and supreme courts' affirmance of the convictions and sentence did not involve unreasonable applications of clearly established federal law, including claims regarding cruel and unusual punishment under the Eighth Amendment, double jeopardy, jury instructions, and search validity. Core reasoning centered on the proportionality of the sentence given the nature of pimping offenses and petitioner's extensive criminal history, as well as deference to state findings under AEDPA standards.

criminal lawfederal power

The case involved a plaintiff's motion to remand an insurance dispute to state court, claiming lack of diversity jurisdiction because the defendant insurer's principal place of business was in California. The court denied the motion to remand, concluding that diversity jurisdiction existed and the amount in controversy exceeded $75,000. It applied the Ninth Circuit's place of operations test, finding a substantial predominance of the defendant's business activities in Oregon based on the concentration of employees, real property, and other assets there. The court also determined that the plaintiff's claims for breach of contract and bad faith could support an award of future policy benefits as compensatory damages, pushing the total beyond the jurisdictional threshold.

proceduretorts & liability