Barry Ted Moskowitz

In this case, plaintiffs Leeds, L.P. and Fourth Investment, L.P. filed quiet-title actions seeking to remove federal tax liens from two properties, asserting that the liens arising from Susanne and Don Ballantyne's unpaid tax liabilities for tax years including 1985 and 1986 did not attach because the entities were independent owners rather than nominees or alter egos. The United States maintained that the liens attached at the time of assessment and remained valid. After a trial involving extensive evidence of the Ballantynes' use of over a dozen controlled entities and trusts to hold assets and frustrate IRS collection efforts, the court found that these entities lacked independent business activity, were owned and directed by the Ballantynes or their close associates, and served primarily to shield assets through non-arm's-length transfers without full relinquishment of control or benefit. The court therefore concluded that the properties remained subject to the tax liens as nominees of the Ballantynes.

taxespropertyfederal power

In Hamby v. Power Toyota Irvine, the plaintiff filed an ex parte application seeking permission to conduct discovery on whether an arbitration clause and class action waiver in a contract were unconscionable, along with a continuance of the hearing on the defendant's motion to compel arbitration. The court granted the application, allowing limited discovery relevant to unconscionability and removing the motion to compel from the calendar for later rescheduling. The reasoning relied on California Civil Code section 1670.5(b) and cases such as Coneff v. AT&T Corp. recognizing a right to discovery on this issue, while noting that the Supreme Court's decision in AT&T Mobility LLC v. Concepcion bars reliance on the Discover Bank rule but does not eliminate unconscionability as a defense to arbitration. Magistrate Judge Skomal was assigned to determine the scope and schedule of discovery.

procedure

This case involves a dispute over a $21 million loan agreement secured by a preferred ship's mortgage on a yacht, where the lender paid only the first installment and the borrowers filed state court claims for usury and breach of contract while the lender pursued federal claims for breach and foreclosure. The defendants moved to stay the federal action under the Colorado River abstention doctrine due to the parallel state proceeding. The court granted the stay, finding the actions substantially similar and balancing factors including the risk of piecemeal litigation, the predominance of state law issues, and the adequacy of the state forum. It determined that abstention promoted wise judicial administration without unduly prejudicing the parties, while noting the state court's ability to resolve the core contract issues expeditiously.

procedurebusiness & regulatoryproperty

In United States v. Deleon-Torres, the defendant was indicted under 8 U.S.C. § 1326 for being a deported alien found in the United States and moved to dismiss the indictment by collaterally attacking his 2007 deportation order. He argued that the immigration judge failed to advise him of possible eligibility for adjustment of status, a § 212(h) waiver, or voluntary departure, rendering the proceedings fundamentally unfair. The district court denied the motion, finding that the defendant could not show prejudice because his multiple prior convictions—including aggravated felonies for drug sales, theft, and domestic violence—made him ineligible for any of the claimed forms of relief. Under Ninth Circuit precedent, a defendant must demonstrate a plausible ground for relief to establish prejudice from an immigration judge’s failure to inform, and no such ground existed here. The court therefore concluded that the 2007 removal order was valid and could serve as the basis for the criminal charge.

immigrationcriminal law

In United States v. Stacy, the defendant was charged with federal offenses including conspiracy and manufacturing marijuana, possession with intent to distribute, and possessing a firearm in furtherance of drug trafficking after operating a medical marijuana collective in California and selling marijuana to an undercover officer. The defendant sought to present defenses such as entrapment by estoppel and public authority, arguing reliance on California medical marijuana laws, statements by then-candidate Obama, and federal enforcement policies. The court denied the defendant's motion to present these defenses and granted the government's motions in limine to preclude entrapment, advice of counsel, medical marijuana, medical necessity, and public authority defenses. The core reasoning was that entrapment by estoppel requires an affirmative statement from a federal official or authorized agent that the conduct was legal under federal law, and no such assurance was shown; compliance with state law or general policy statements did not suffice to establish reasonable reliance.

criminal lawfederal powerhealthcare

The case involves plaintiff James Scott, a federal protective officer and criminal investigator employed by the Federal Protective Service, who experienced multiple work-related injuries and medical conditions including adjustment disorder, sinusitis, and repetitive motion injuries to his arm and shoulder. After submitting workers' compensation claims and medical documentation with work restrictions, his supervisor revoked his authority to carry a firearm and required fitness-for-duty medical examinations, releases for medical records, and other inquiries as conditions for restoring his law enforcement credentials and allowing him to attend training. Scott sued under the Rehabilitation Act, alleging that these actions constituted improper disability-related medical examinations and inquiries. The court granted in part and denied in part both parties' summary judgment motions, finding that some requirements were permissible when job-related and consistent with business necessity while others raised triable issues regarding compliance with statutory limits on such inquiries.

labor & employmentcivil rights

The case involved a plaintiff who alleged that defendants violated the California Rosenthal Fair Debt Collection Practices Act by mailing two billing statements to him after he had retained counsel to address his consumer debts. The plaintiff claimed these communications breached provisions of the Act that incorporate federal Fair Debt Collection Practices Act rules prohibiting contact with represented debtors. The court granted the defendant's motion for judgment on the pleadings and dismissed the complaint without prejudice. It reasoned that the state statute expressly exempts statements of account from the communication ban, and this exception should be applied consistently to the incorporated federal provisions to avoid internal inconsistency in the law.

business & regulatoryprocedure

In United States v. Stacy, the defendant was indicted on federal charges of conspiracy to manufacture and distribute marijuana, manufacturing marijuana plants, and possessing a firearm in furtherance of a drug-trafficking crime after operating a medical marijuana collective in California that he claimed complied with state law. He moved to dismiss the indictment, arguing violations of the Tenth Amendment through federal commandeering of state officials, due process, and conflict with Department of Justice policy on medical marijuana. The court denied all motions, holding that the defendant lacked standing to raise the Tenth Amendment claim, that no commandeering occurred because federal authorities independently investigated and prosecuted based on evidence of commercial activity, and that internal DOJ guidance created no enforceable rights or binding policy precluding prosecution. The court further found no due process violation from any alleged change in enforcement priorities.

criminal lawfederal power

The case involved a California prisoner's federal habeas petition under 28 U.S.C. § 2254 challenging his convictions for sexual battery, forcible oral copulation, kidnapping, robbery, and related counts, along with a 40-years-to-life sentence. The petitioner argued that one count of forcible oral copulation committed in Ventura County was improperly tried in San Diego County under a retroactively applied venue statute (Penal Code § 784.7), that the statute was unconstitutional, that prosecution was barred by the statute of limitations, and that there was insufficient evidence on an attempted copulation count. The district court adopted the magistrate's recommendations in part, granted habeas relief in part by issuing a conditional writ requiring resentencing or release on the Ventura County count due to an ex post facto violation from the retroactive venue change, denied relief on the remaining claims, and issued a certificate of appealability.

criminal lawprocedure

This case is a federal habeas corpus proceeding challenging a death sentence for multiple murders and related crimes, where the court had granted an evidentiary hearing on claims of ineffective assistance of counsel and prosecutorial misconduct. The court considered a motion to compel non-party Eric Hart, author of an unpublished investigative book on the case, to produce drafts of his manuscript in response to a subpoena duces tecum. The court granted the motion in part and denied it in part, ordering Hart to produce portions of the current manuscript addressing specific topics relevant to the hearing, such as certain witnesses and a detective's alleged actions. The core reasoning was that Hart could invoke the qualified journalist's privilege, but he had waived it through prior voluntary disclosure of the manuscript to petitioner's counsel, making it unfair to withhold the material from the other side; production was limited to relevant sections to balance interests in free information flow and editorial privacy.

criminal lawprocedurefree speech

This case involves a proposed class action by patients who underwent hyperopic LASIK or PRK procedures using a Nidek EC-5000 Excimer Laser that lacked FDA premarket approval for those uses, after the device had been modified with unauthorized hardware and software. Plaintiffs alleged violations of California's Human Subjects in Medical Experimentation Act, Consumer Legal Remedies Act, Unfair Competition Law (based on FDCA violations and related state laws), and civil conspiracy, seeking damages and injunctive relief without claiming personal injuries. The court granted the defendants' motions to dismiss, denied the motion to strike as moot, and granted in part and denied in part leave to amend. It held that there was no federal-question jurisdiction because the FDCA prohibits private enforcement actions under 21 U.S.C. § 337(a), that the state-law claims were preempted or otherwise required the court to resolve FDCA issues reserved for the FDA, and that certain claims were also barred by the statute of limitations.

healthcarebusiness & regulatoryprocedure

In Sorenson v. Big Lots Stores, Inc., Big Lots filed a declaratory judgment action in the Southern District of Ohio regarding a patent dispute but failed to serve the complaint promptly as required by Federal Rule of Civil Procedure 4(m). Sorenson, as trustee, then filed a patent infringement lawsuit in the Southern District of California, after which Big Lots moved to transfer venue of the California case to Ohio under the first-to-file rule. The court denied the motion, holding that Big Lots had not diligently prosecuted the Ohio action—having delayed service for months until prompted by an order to show cause—and that considerations of judicial economy favored retaining the case in California, where over thirty related cases involving the same patent were already pending before the court.

procedure

The case involved a dispute between Shaw Mortgage Corporation, operator of two seasonal retail stores, and Peerless Insurance Company over the scope of business income loss coverage under a commercial property insurance policy after a December 2005 fire destroyed the insured premises and contents. Plaintiff sought additional payments beyond the amounts already disbursed through the September 2006 grand reopening plus 30 days of extended coverage, arguing that benefits should continue until operations returned to normal volume within the policy's 15-month maximum. The court denied both parties' cross-motions for partial summary judgment, holding that the policy limited coverage to the "period of restoration" (ending on repair/replacement of covered property or resumption at a new permanent location) and that no estoppel or broader interpretation applied, but material factual disputes existed regarding exactly when that period ended given the destruction of inventory, marketing materials, and other items.

business & regulatoryproperty

In Martinez v. Allstate Indemnity Company, the plaintiff sued the defendant insurance company in California state court, and the defendant removed the case to federal district court asserting diversity jurisdiction under 28 U.S.C. § 1332. The plaintiff moved to remand, arguing that complete diversity was lacking because the defendant's principal place of business was in California, the same state as the plaintiff. The court denied the motion to remand without prejudice, holding that the place of operations test did not show substantial predominance of business activity in any single state, so the nerve center test applied and located the defendant's principal place of business in Illinois where its executive and administrative functions were based. As a result, the parties were diverse and federal jurisdiction existed, though the plaintiff could conduct discovery and renew the motion.

procedure

The case involved owners of trademarks and copyrights in children's characters including Barney, Bob the Builder, and Thomas the Tank Engine suing a costume seller for manufacturing and selling adult-sized versions of those characters. The court granted summary judgment in part on the federal and California trademark claims, holding the defendant liable for infringing the word marks and issuing a permanent injunction against their use in costume advertising or sales, based on evidence of the defendant's sales and use of the marks. The court denied summary judgment on the copyright claim, finding objective similarities in elements such as color, features, and accessories but concluding that whether the total concept and feel was substantially similar presented a triable issue for the jury under the intrinsic test. The decision addressed both prior settlement and new infringement evidence from investigator purchases.

propertyprocedurebusiness & regulatory

The case concerned a timeshare owner who received collection demands from Continental Central Credit, Inc. on behalf of a homeowners association for assessments and fees, after which she disputed the debt and alleged that the added collection fees were arbitrary and unreasonable. She sued under the federal Fair Debt Collection Practices Act and California's Robbins-Rosenthal Fair Debt Collection Practices Act, claiming violations from the fees and from collection notices that failed to clearly advise her of her verification and dispute rights. The court denied the motion to dismiss, finding that the complaint adequately alleged the fees were not authorized by agreement or law under 15 U.S.C. § 1692f(1) and California Civil Code § 1671, and that a follow-up notice overshadowed the required disclosures in violation of § 1692g. The court also concluded the state act could apply depending on the nature of the underlying assessments, deferring further factual questions to later stages.

business & regulatoryprocedure

The case arose from a dispute between Enea TekSci and former employees Hilderman and Baghai after Hilderman's 2004 severance agreement, which included confidentiality and six-month non-compete provisions, and the 2005 formation of a competing firm, HighRely, that hired Baghai and another ex-employee and secured work from Enea customers Boeing and Hospira. Plaintiffs sued for declaratory relief, breach of contract, interference with contract and prospective advantage, and unfair competition, alleging Enea falsely claimed Hilderman was bound by a non-compete; Enea countersued for breach of loyalty, trade-secret misappropriation, aiding and abetting, and related claims based on alleged forwarding of customer leads and confidential information. The court granted in part and denied in part Enea's summary-judgment motion on the complaint and Counterdefendants' first partial-summary-judgment motion, denied Counterdefendants' second motion, and granted Enea judgment on Baghai's second and third counterclaims. It held the non-compete unenforceable under California law, dismissed the breach-of-contract claim against Hilderman for lack of consideration, found insufficient evidence that DO-178B materials were misappropriated but allowed the pricing-information claim to proceed, and ruled that Baghai's counterclaims failed as a matter of law.

business & regulatorylabor & employmentprocedure

The case involved plaintiff Carl Hoffman, who alleged that defendant Impact Confections misappropriated his confidential ideas and designs for NASCAR-themed novelty gum and candy products called 'Pit Crew Chew' after the parties signed a non-disclosure agreement, leading to claims including trade secret misappropriation, breach of contract, copyright infringement of tire-and-wheel packaging artwork, intentional interference with economic relations, and unfair business practices. The court granted the defendant's unopposed motion for summary judgment on all ten claims. It reasoned that there was no evidence of misappropriation of protectable trade secrets or confidential information, the defendant's 'Champion Chew' product packaging was not substantially similar to the plaintiff's copyrighted two-dimensional artwork, and the remaining claims were derivative or failed due to the plaintiff's lack of any evidence or computation of damages as required by federal rules.

business & regulatorypropertyproceduretorts & liability

The case involved the All Mission Indian Housing Authority, a federally funded entity organized by member Indian tribes, filing an unlawful detainer action in federal court to evict tenants from a subsidized home on tribal land due to nonpayment of rent and to recover damages. The court dismissed the action for lack of subject matter jurisdiction under 28 U.S.C. §§ 1331, 1337, and 1362. It reasoned that landlord-tenant disputes are generally matters of state law and do not present a federal question merely because the landlord is an Indian housing authority using federal funds under NAHASDA or because the land rights derive from federally recognized tribes. The opinion noted that NAHASDA does not create a federal cause of action for evictions or establish federal court jurisdiction, and that tribal courts could provide an appropriate forum consistent with tribal sovereignty.

federal powerpropertyprocedure

The case involves a patent infringement lawsuit filed by Randall Robinson against Advanced Decoy Research, Inc., George Brint, and Panic Mouse, Inc., alleging infringement of U.S. Patent No. 4,930,448 for an animal toy featuring a motorized mechanism that rotates an object around a stationary base. The court held a Markman hearing to construe disputed claim terms as a matter of law. Relying on intrinsic evidence from the patent claims, specification, and prosecution history, supplemented by dictionary definitions where appropriate, the court interpreted terms including "base," "member," "freely," "projection," "connection," and "elongate" according to their ordinary meaning to a person of skill in the art at the time of the invention.

propertyprocedure