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Contracts

[11/20] Hukic v. Aurora Loan Serv.
In plaintiff's suit against defendants claiming breach of contract, tortious interference, and violation of the Fair Credit Reporting Act, arising from a six-figure mortgage he obtained at an interest rate of 10.65% where he was to make monthly payments as well as taxes, insurance premiums and other charges and fees, summary judgment in defendants' favor and dismissal of plaintiff's claims for defamation and intentional infliction of emotional distress is affirmed because plaintiff did not comply with the terms of his agreement that required him to submit proof of payment.

[11/20] Curia v. Nelson
In parties' dispute over the terms of a stock purchase agreement entered into in 1989 and several modification of the agreement over the next decade involving a small number of shares in two automobile dealerships and whether the contract also gave plaintiff option to purchase remaining shares, summary judgment in plaintiff's favor is reversed as extrinsic evidence is required to clarify what the parties meant because the contract as modified is reasonably susceptible to both parties' interpretation and is therefore ambiguous regarding the survival of the options.

[11/20] PPG Indus., Incorp. v. Int'l Chem. Workers Union Council of the United Food and Commercial Workers
District court's order vacating an arbitrator's award in favor of a union on the ground that the arbitrator exceeded his authority by adding a term to the underlying contract is reversed and remanded as, even if the arbitrator erred, he acted within the scope of his authority under the contract.

[11/19] Dealer Computer Servs. Inc. v. Old Colony Motors Inc.
In an action under 9 U.S.C. section 4 to compel defendant to pay a deposit in the underlying arbitration between the parties, an order requiring defendant to pay is reversed where the issue of whether defendant should be required to pay was a procedural issue left to the discretion of the arbitrators.

[11/19] Martco Ltd. Pshp. v. Wellons Inc.
In an action against an insurer seeking coverage for an underlying lawsuit regarding defects in a heating system installed by plaintiff, summary judgment for defendant is reversed where: 1) defendant had a duty to defend the underlying suit in light of the language of the policy and the allegations of the underlying complaint; and 2) the "work product" exclusion in the policy did not preclude recovery.

[11/19] Hoffman v. Smithwoods RV Park, LLC
In plaintiff's suit against the defendant-Mobile Park for refusing to permit the installation of a new mobile home in its mobile home park to replace an older one that plaintiff had inherited, trial court's dismissal of plaintiff's suit is affirmed where: 1) the complaint fails to state a cause of action for statutory violation; 2) the complaint fails to state a tort cause of action for interference with contract; 3) the complaint fails to state a contract cause of action; and 4) the trial court did not abuse its discretion in denying leave to amend.

[11/19] Davis v. Ford Motor Credit Co.
In plaintiff's action against the Ford Motor Credit Company (Ford) claiming that Ford's billing practices under a retail installment sales contract in charging late fees is prohibited by the Rees-Levering Motor Vehicle Sales and Finance Act, and actionable under Unfair Competition Law and the Consumers Legal Remedies Act, dismissal of the suit is affirmed where: 1) Ford's conduct of charging successive late fees for successive late payments does not violate Civil Code section 2982(k)'s prohibition on charging more than one late fee per delinquent installment; 2) plaintiff cannot allege Ford's billing practice is an unfair business practice within the meaning of UCL because the alleged injury is one plaintiff reasonably could have avoided; and 3) although Ford was the prevailing party, it cannot recover its attorney's fees pursuant to the Rees-Levering's reciprocal attorney's fees provision because the alleged Rees-Levering violation was merely a predicate to the UCL claims, and a prevailing defendant cannot recover attorney's fees under the UCL.

[11/19] Dowell v. Pacesetter, Inc.
In plaintiffs' suit against the defendant to enjoin it from enforcing noncompete and nonsolicitation clauses in employment agreements used in California, trial court's ruling that the clauses were facially void under Business and Professions Code section 16600 and that their use violated California's Unfair Competition Law and that defendant's unclean hands defense and its cross-complaint for unfair competition failed as a matter of law is affirmed where: 1) the trial court properly determined that the clauses were void as a matter of law, that no defense applied and that the cross-complaint failed to state a cause of action; and 2) trial court did not abuse its discretion in denying a permanent injunction and costs

[11/17] Epic Communications, Inc. v. Richwave Tech., Inc.
In an action by a Taiwanese corporation and its California subsidiary seeking damages for misappropriation of intellectual property involving a Design Services Agreement of a silicon-germanium power amplifier for use in wireless networking devices, trial court's order quashing service of summons is reversed where: 1) a refusal by California courts to exercise jurisdiction cannot be justified by the mere fact that a claim arising from California contacts is prosecuted by a nonresident; and 2) subjecting the defendant to local jurisdiction comports with fair play and substantial justice as, here the two Taiwanese defendants engaged in conduct in California, and caused effects in California, that made it readily foreseeable that they would be haled into court here in the event of a dispute of the present type.

[11/17] Alabama Aircraft Indus., Inc. v. US
In plaintiff's post-award bid protest case against the Department of the Air Force (agency) for awarding a billion-dollar-plus contract to Boeing for long-term maintenance on the Air Force's fleet of KC-135 Stratotanker aircraft, judgment in favor of plaintiff is reversed and the injunction against proceeding with the contract awarded to Boeing is vacated as the agency's price-realism analysis based on the set work package was not arbitrary and capricious, and the trial court's contrary determination was not within the court's scope of review under the APA standard.

[11/16] Corey Airport Servs., Inc. v. DeCosta
In an action by an advertising display company claiming that defendants conspired to ensure that a competing bidder on a municipal project would be awarded the contract, even though acceptance of plaintiff's bid would have been in the best interest of the city, denial of summary judgment based on qualified immunity is reversed where the Supreme Court's broad statement that the unequal application of facially neutral law with the intent to discriminate may violate the Equal Protection Clause, in and of itself, did not offer defendants fair warning that their treatment of plaintiff was unconstitutional.

[11/13] Kim Seng Co. v. Great Am. Ins. Co. of New York
In a dispute over whether plaintiff's insurer had a duty to defend and indemnify plaintiff in a trademark infringement action under an "advertising injury" policy, summary judgment for insurance company is affirmed as the prior publication exclusion in the policy bars coverage for trademark infringement in this case.

[11/13] Kovach v. Zurich American Ins. Co.
In plaintiff's ERISA suit against an insurance company for denying his claim for dismemberment benefits arising from a drunk-driving motorcycle accident, summary judgment for defendant-plan administrator is reversed and remanded for entry of judgment in favor of the plaintiffs where: 1) defendant's decision to deny benefits to the plaintiffs was contrary to the everyday meaning of the word "accidental" as it would be understood by a typical policyholder, and was based almost entirely on a body of largely distinguishable district court cases; 2) plaintiff's injuries were not "highly likely to occur" as a result of his intoxication, in contrast to the injuries that were highly likely to occur under the facts in Lennon; 3) defendant's interpretation of the Plan's provisions amounts to an additional, unwritten exclusion for all drunk-driving injuries, which is not permitted under even the most deferential standard of review; and 4) defendant's denial of coverage based on plaintiff's injuries being non-accidental was unreasonable, arbitrary and capricious.

[11/13] Hawknet, Ltd. v. Overseas Shipping Agencies
In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

[11/12] Berry & Murphy, P.C. v. Carolina Cas. Ins. Co.
In an action for insurance coverage for a malpractice lawsuit, summary judgment for defendant is affirmed where: 1) the alleged acts of malpractice in a letter sent to the malpractice defendant and the lawsuit were "connected by an inevitable or predictable interrelation or sequence of events" for purposes of the policy; 2) the insurance policy treated as one claim all "related wrongful acts"; and 3) because defendant had no legally cognizable duty to defend or indemnify a claim, plaintiffs' bad faith claim could not survive.

[11/12] South Bay Boston Mgmt., Inc. v. Unite Here, Local 26
District court's grant of defendant-union's motion to compel arbitration and denial of plaintiff's petition for declaratory judgment is affirmed where: 1) the Union neutrality agreement at issue was not void ab initio; and 2) the arbitration clause of the agreement remained in effect.

[11/12] Wilson v. CIA
In a First Amendment action claiming that the CIA was required to allow former employee Valerie Plame Wilson to publish a memoir about her tenure at the agency, summary judgment for defendants is affirmed where: 1) plaintiff, and not the agency, permitted the classified information at issue to be revealed to the public; and 2) further, the public disclosure did not deprive the information of classified status, and the agency demonstrated good reason for adhering to its classification decision. A former CIA agent cannot use her own unauthorized disclosure of classified information to challenge the CIA's ability to maintain the information as classified.

[11/10] McFadin v. Gerber
In an action for breach of a sales representative agreement, dismissal of the action for lack of personal jurisdiction is affirmed in part where one defendant's mere act of contracting with a resident of the forum state did not establish minimum contacts. However, the order is reversed in part where other defendants sufficiently directed the sale of the merchandise at issue into Texas such that they could reasonably anticipate being haled into court there.

[11/10] Safety Nat'l. Cas. Corp. v. Certain Underwriters at Lloyd's
In an appeal from the denial of a motion to compel arbitration of a contractual dispute among insurers, the order is reversed where the McCarran?Ferguson Act does not authorize state law to reverse-preempt the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or its implementing legislation.

[11/10] Payless ShoeSource, Inc. v. Travelers Cos., Inc.
In an action against an insurer for coverage of a settlement in a wage and hour lawsuit, summary judgment for defendant is affirmed where, by operation of the plain terms of the agreement, plaintiff had no claim for coverage against defendant.

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