As we get closer to the end of the June and the Supreme Court’s decision on Congress’ power to force you to buy health insurance, we will see more attention focused on how the Supreme Court ought to interpret the Constitution. Here is a great example from Tim Sandefur over at Pacific Legal Foundation.
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Blogging has been nonexistent the past few years — I have accepted a teaching position at Chapman University School of Law, leading the Constitutional Jurisprudence Clinic. Through the clinic I have been very active in filing briefs at the United States Supreme Court working to convince the Court that it should use the original public meaning of the Constitution as its interpretative guide. As I have time, I will update the blog with notes about the cases and about the Center for Constitutional Jurisprudence — the nonprofit that sponsors the clinic.
Here is the chance for you to travel to the sunshine state and brush up on you appellate advocacy skills (while the rest of the family hangs out at that Magic Kingdom place). DRI (the defense side of the civil trial bar) is putting on a two-day appellate advocacy seminar. More info on the DRI site and on The (New) Legal Writer Blog.
Unfortunately, Florida travel is not in my plans at the moment – but if you attend the seminar, drop me a note and let me know what you think. I occasionally teach CLE sessions on appellate advocacy and am always interested in hearing about what works and what does not work in the seminar setting.
Where else but a judicial opinion can you find references to both Refer Madness and the Perils of Pauline in the same sentence? Today’s example comes from the decision in Engle v. Copenbarger and Copenbarger:
Cautionary tales rarely have happy endings. From the 19th Century German classic, “The Dreadful Story of Pauline and the Matches,” in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, “Reefer Madness,” the protagonist almost never does well in them. This case is no exception. We present here a cautionary tale, published, like all of its ilk, in the hope of providing a warning.
The issue in the case is whether a plaintiff who accepts a Section 998 offer in exchange for “a release and discharge of all claims” but which is otherwise silent on the question of attorney fees may nonetheless apply to the court for an award of fees and costs.
The court ruled that a plaintiff who accepts a 998 offer “is entitled to fees and costs unless they are excluded by the offer.” This, the court says, is a “bright-line rule” meant to resolve situations precisely as that before the court where there is a question as to whether the 998 offer included or excluded fees.
The lesson — make the offer very precise.
The statute of limitations in building defect cases begins to run when the Home Owners Association knows that something is wrong — not when they know there is a legal cause of action. Thus, once an HOA official sees water damage, the statute begins to run. It does not start when the HOA’s inspector returns a report identifying potential causes of the damage.
Under California Civil Code §1375, the running of the statute of limitations for defects to common interest developments (such as condominiums) is tolled for a set period of time by service of a notice to the general contractor. The purpose of the tolling is to allow the parties to come to an agreement without litigation for repair of the defects. Thereafter, the general contractor and the HOA can agree to extend the period of tolling while they work through the issues raised by the HOA.
In Landale-Cameron Court v. Ahonen, the issue before the court was whether this tolling arrangement also tolled the statute of limitations for actions against the subcontractors who had no notice of the defects or the extended tolling agreement signed by the general contractor. The court ruled that the tolling must extend to actions against the subs in order for the statutory scheme to work. “Indeed, if the statute of limitations were tolled only against the builder and not also against party contractors and subcontractors, it would wreck havoc with the obvious intent of the tolling provision to provide additional time to resolve disputes prior to filing a lawsuit.”
This ruling is important for the HOA since the court also ruled that the HOA had no cause of action for breach of contract under a third party beneficiary theory. Since the HOA was not in existence at the time of the contract, it could not be a third party beneficiary to the agreement. That left the HOA with only the negligence cause of action, and the need to rely on the tolling provision of section 1375.
As more court decisions and state statutory and administrative regulatory codes become available on-line free of charge, the challenge will be for Lexis and Westlaw to find some special editorial enhancement that will entice their paid subscribers to continue to shell out $$ every month.
Welcome to The Opening Brief — the blog of The Law Office of Anthony T. Caso. This blog is devoted to appellate decisions and issues and I hope to generate a discussion on the direction of the law in these pages – not so much whether we agree or disagree with a particular decision (after all, who wants that kind of written record when you are up for confirmation!!). Instead, I am interested in discussing the impact of the decisions on a particular area of law, where we think the law might be headed, and what arguments we might make in the next case. I am open to all viewpoints and I hope to generate a lively discussion. If there is a particular decision you would like to discuss, please send me an email and I will add it to the menu.