May It Please The Court
Quote of the Day - In this business, by the time you realize you're in trouble, it's too late to save yourself. Unless you're running scared all the time, you're gone.
We Never Even had the Chance to ComplainTo challenge an ordinance in California, you have to file suit within 120 days (Gov't Code section 66022). In this case, the ordinance setting the connection fee for sewer and water was passed in 1997.
In Merced County, California, a company sought to build a 32-bed care facility, and got hit with a $45K connection fee. Quite surprised, the company paid the fee under protest, and filed a complaint seeking refund of the fees, or part of the fees one day later. The water district denied the claim, and of course a suit followed.
In the case against the water district, the court held that the company's complaint was too late. Although the court omits from the factual recitation the date the complaint was filed, I assume it was filed more than 120 days after the ordinance was filed in 1997.
It's likely, too, that the company that built the residential care facility either formed or came into the district well after 1997. This result seems particularly harsh if those circumstances are true. The law cited by the court, however, addressed and rejected that argument. The underlying case determined that the wrong that was being challenged was the ordinance, not the later impostion of fees. Consequently, the challenge was too late.
Long and short: due diligence.
Are We Killing Ourselves With Our Forks?Who really is responsible for obesity in this country? Are McDonald's and other fast-food restaurants or the people that choose what to eat and how much to exercise? They do have that one freedom - choice. One judge recently exercised that choice.
Judge Sweet threw out the most recent case against McDonald's (it's actually his second dismissal) alleging that Mickey D's burgers and fries caused the Plaintiff's obesity. Apparently the judge felt it wasn't all McDonald's fault.
It is a difficult topic - in one of the lawsuits against a fast-food company, a construction worker claimed he had no other options but fast food to eat during lunch. All fast-food choices are not bad, though.
Maybe we need to look past the other selections at fast-food restaurants of a burger, "super-size" fries and a sugar-laden soda. What do American's do when we look in the mirror, observe that for our age and height that our weight falls in the obese category? Do we suddenly lose the ability to pack or buy a low-calorie, nutritious lunch?
When is is time for each of us to take personal responsibility for our actions? Why is it the responsibility of the restaurant to provide us the choices to eat so we won't gain excessive weight? I have to be careful here, because I'm overweight. But, I'm seeing a nutritionist and exercising three times a week. As some would say, "take the burger by the horns and get control of your life." It's working for me - I've lost about 15 pounds by following that old adage: "eat less and exercise more."
Other alternative voices are out there, too. See McSpotlight's article for additional insight into this issue.
McDonald's hasn't yet posted any press releases about their recent victory, but it does note that Ronald McDonald was named as the company's Happiness Officer.
Mmmm, mmmm, Good. Oops! Wrong brand.
Perfectly Sassy Hunts Down the Treasure Law
Philippine lawyer Perfectly Sassy provides a response to my invitation to comment on my article on the treasure hunting flap below. See also her brief Comment to the article.
Agrrr, Matey, Did Ye Steal My Treasure?The Manila Sun Star reported yesterday that several American lawyers have offered their services to sue a deep-sea treasure hunter.
Over an 11-year period, American Phil Greco is alleged to have illegally removed nearly $50M of antiquities from the seas around the Philipines. His lawyer, David Concannon, disputes these allegations in a very interesting rebuttal.
Greco's salvage company, Stallion Recoveries, virtually provides an inventory of the items Greco wants to auction.
One report details his trials and tribulations, and the stakes at issue: "And now, as he goes public with what looks to be an important new find -- seven massive Chinese statues believed to come from tombs dating to the Ming Dynasty (1368-1644), recovered from a subterranean cave -- Greco also finds himself sitting in the middle of a controversy." according to this Los Angeles Times article.
A Vietnam veteran, Greco claimed in an earlier (August 6, 2003) Los Angeles Times article: "I am not a treasure hunter, archaeologist or explorer. I am a caretaker," he said. "These artifacts have their own message ... I arrange the documents for their travel. They are here [in his living room in Sherman Oaks, California]. I am very proud to be a caretaker."
The author of the latter article, Helen Gao, observed: "As he gave interviews to a stream of reporters, he sucked on a cigar and casually threw the butt into one of the many jars lining his living room."
MIPTC wonders what Philipinos thinks, and invites my latest addition to this site's blogroll, A Sassy Lawyer in Philipine Suburbia to respond and comment.
Whatever happened to Indiana Jones?
We're Winning Against the Bridge FireToday's news article says the fire I reported on yesterday near my cabin is 15% contained. Whew!. Looks like we dodged that bullet.
Thanks, guys. As the article says, "More than 850 firefighters using 37 engines, 26 tankers, 14 air tankers, five helicopters, nine bulldozers and 18 water tenders battled the blaze Sunday."
No Free Lunch for Class Action Opt-outsEver get those 8-point type, 77-page disclosures about the latest class action suit and wonder whether you should opt-in or opt-out? Now, you may want to think twice about opting-out.
In what is generally considered a boon to Class-action Plaintiff's lawyers, a Pennsylvania federal district court ruled that if you opt-out, you may have to pay the Plaintiffs' laywers anyway.
This decision is largely confined to the facts, though. After five years' work by the Plainitiffs' lawyers, several large corporations, including Coca-Cola, opted out, and elected to bring their own suits. Apparenly, the federal district judge thought they would be able to benefit from the Plaintiff's lawyers' work, so he ordered the opt-out Plaintiffs to preserve some of their recovery to pay the Plaintiffs' lawyers.
Basically, you gotta pay to play.
Wildfires Threaten California HomesIt may not be legal news yet, but it will be if an arsonist is found. A wildfire has burned 1,400 acres in the San Bernardino, California mountains, and resulted in the evacuation of some 1,500 mostly vacation homes (one of them mine).
Dubbed the Bridge Fire, local television news station NBC4 reports that the fire was only two percent contained as of 8:00 a.m. this morning. All roads leading in are closed, and we've elected to respect the firefighters and stay out of their way.
We've practiced the recommended fire safety tips, and encouraged our neighbors to do the same. But most of all, we're grateful for the soldiers who fight fires here at home.
Eureka! But Not AnymoreIn what has been a very contentious case between lawyers and the sitting judge, the Ninth Circuit (order not posted yet), removed Judge Vaughn Walker before trial.
Federal District Court Judge Walker issued an order in the case of Forest Defense v. Humboldt County and City of Eureka allowing a venue change to Eureka, after remand from the Ninth Circuit. Plaintiff's lawyers took him up on a writ, challenging the venue change. They believed they could not get a fair trial in the logging community.
What's unusual about this case is that the trial has not even occured yet, and the Ninth Circuit pulled Judge Walker from the case. That may be a first.
The case actually had been tried earlier, resulting in a 4-4 deadlock on the jury, but Judge Walker entered judgment anyway. According to Big News Network, the unsigned Order removing Walker reads: "On [the] record it appears the district court's actions reveal an appearance of an absence of impartiality sufficient to warrant reassigning this case."
The environmental lawyers for the Forest Defense Group complimented Judge Walker's experience and intelligence, but were estatic with the result.