FedEx Lawsuits Filed in I-5 Bus Crash

15057433_sLawsuits continue to mount against FedEx in the I-5 bus crash that killed ten people.  The accident involved a collision between a FedEx tractor trailer and a charter bus carrying students to Humboldt State University. The parents of Mattison Haywood, a school chaperone killed in the crash, become the latest family to file a wrongful death lawsuit against the cargo carrier.

 

The Haywood suit was filed in Los Angeles Superior Court on July 14, 2014.  This suit joins recent lawsuits against FedEx and Silverado Stages, the charter bus company.  The family of Ismael Jimenez, 18, who also died in the crash attempting to save his classmates, has filed a lawsuit, alleging wrongful death, along with the families of Jennifer Bonilla who was killed on impact, and Miles Hall, who was severely injured in the crash.

 

The April 10 crash occurred on I-5 near Orland, when a FedEx tractor trailer allegedly crossed the median and crashed head-on into a bus containing a group of prospective students on a chartered visit to Humboldt State University.

 

According to the National Transportation Safety Board preliminary report, after the FedEx tractor trailer crossed the median, it struck a Nissan Altima, and then collided with the bus, which caused both vehicles to roll off the freeway and burst into flames.  The drivers of both the tractor trailer and the bus were killed on impact.  Eight additional passengers were killed, and occupants of the Nissan and the charter bus received varying degrees of injuries.

 

The tractor trailer originated at the FedEx facility in Sacramento.  The driver had left Sacramento thatmorning, delivered two trailers and picked up two more at a facility in Weeds, California, and was southbound on I-5 en route back to Sacramento.  The bus originated in Los Angeles, and was northbound on I-5 en route to the Humboldt State campus in Arcata.

 

This accident resulted in the tragic loss of life of young students, teachers, and two drivers.  And while this accident gained national coverage, it unfortunately is only one of hundreds of accidents that happen on California roadways each day.

 

If you have been injured in an auto accident, or have lost a loved one as the result of someone else’s negligence, you need a tough, smart attorney on your side.  Dennis M. Wilson has been representing California families and individuals throughout the Sacramento area for more than 40 years in family law, litigation, and personal injury matters.  Visit the Wilson Law Firm online or call us at (916) 608-8891 for a free consultation today.

Supreme Court Rules in Frankie Valli Divorce

divorce lawyer SacramentoThe California Supreme Court has ruled in the Frankie Valli divorce case. Valli, a popular singer in the 1960s, and his wife Randy have been battling it out over the assets from their marriage for more than a decade.

 

The court unanimously ruled that a $3.75 million insurance policy, purchased with funds from a joint bank account, was community property.

 

Randy and Frankie Valli were divorced in 2004, after more than 20 years of marriage.  Frankie purchased the life insurance policy in Randy’s name, after he experienced heart problems.  During the divorce, Frankie claimed he was entitled to half of the insurance policy, while Randy argued that because it was in her name, it belonged to her exclusively.  The Los Angeles Superior Court agreed with Frankie, but on appeal, the court ruled that the entirety of the policy belonged to Randy.  The California Superior Court overruled that appellate court decision, finding that the insurance policy was, in fact, community property, and that both spouses were entitled to half.   The court clarified that where one spouse wants to relinquish assets to the other, it can only do so in writing, and that merely listing one spouse’s name on the asset is insufficient.

 

The ruling strengthens California’s community property laws, which gives both spouses equal ownership of all assets acquired during the marriage.  The state’s highest court overturned various lower court decisions that allowed divorcing husbands and wives to claim ownership of any assets acquired in one spouse’s name.  The state’s high court made it clear that, in California, anything purchased from a joint bank account during the term of the marriage, regardless of which spouse’s name is on the asset, is community property unless one spouse indicates, in writing, that he or she relinquishes the asset.

 

[Writer: please note that the real issue was whether a term life insurance policy is community property.  Historically term policies were treated as separate property because the policy would terminate unless a premium payment was made, and those premium payments were made after separation from one party’s post-separation separate income.  The Vali court discussed the circumstances in which there is a community interest to be valued, and that discussion is the major contribution to community property law.  The article should deal with that issue.

 

If you are considering a divorce, or have questions about marital assets, you need a tough, smart attorney on your side.  Dennis M. Wilson has been representing California families and individuals throughout the Sacramento area for more than 40 years in family law, litigation, and personal injury matters.  He is certified by the California State Bar as a Family Law Specialist, and has expertise in divorce and  dissolution of civil unions. Visit the Wilson Law Firm online or call us at (916) 608-8891 for a free consultation today.

Local Kayaker Injured in San Joaquin River Accident

Sacramento personal injury lawyerA Sacramento kayaker has survived a serious kayaking accident on the San Joaquin River in Madera County.  According to local news reports, the Madera County Sheriff’s Office reported that the kayaker was on an expedition with a group of four other kayakers when his boat was sucked into a pool at the base of Balloon Dome.  Reports indicate that the boater was unable to free his feet from the boat, which severely injured his lower legs as the boat was pulled under twice.

 

In his own account of the accident, the kayaker reports that the front of the boat became pinned underwater in some rocks, and the only way he was able to save himself from inevitable drowning was to attempt to exit the boat against the current, even though his legs were trapped below the knees. Eventually he was able to free himself from the boat and swim to safety.

 

Although the accident happened on a remote stretch of river in the High Sierra, new emergency technology likely saved the kayaker’s life.  Luckily after the boater was able to free himself from the boat, the group activated an emergency distress signal.

 

According to the Madera County Sheriff’s Office, the kayakers used a satellite-based GPS system known as a “spot alarm,” which when activated gave an exact location to law enforcement agents.  Using a rescue helicopter, emergency responders from CHP were able to locate the boater very quickly, based on coordinates that were being beamed by the spot alarm.   The boater was rescued by the CHP’s H-40 Air Operations Crew, hoisted into a helicopter, and flown directly to Community Regional Medical Center in Fresno within a few hours of the accident.

 

The boater dislocated both knees, severed tendons, and broke one of his legs. He will require extensive surgery, but will survive the accident.

 

The Madera County Sheriff commended the boaters for planning ahead and bringing the emergency device with them on the river trip.

 

Not all accidents end quite so well.  If you have been injured in an accident, or have lost a loved one in an accident, you need a tough, smart attorney on your side.  Dennis M. Wilson has been representing California families and individuals throughout the Sacramento area for more than 40 years in family law, litigation, and personal injury matters.  Visit the Wilson Law Firm online or call us at (916) 608-8891 for a free consultation today.

Removed Board Director Avoids Anti-SLAPP Sanctions

Folsom California business litigation attorney A member of the board of directors of a non-profit corporation, Dan Murphy Foundation, managed to avoid anti-SLAPP (define “anti-SLAPP”) sanctions in response to his complaint for declaratory relief and alleging wrongful removal of him as a director.  James Donovan argued he was wrongfully removed as a director of the Foundation after he raised concerns about the Foundation’s financial oversight and governance. The Defendants in the case responded to Donovan’s case by filing an anti-SLAPP counterclaim alleging that the voting by the members of the Board constituted a protected activity.

 

Section 425.16 of the anti-SLAPP statute protects any “`act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.'” The Defendants in the case took the position that, because the Foundation was a non-profit corporation which was authorized by California law, the act of voting by the board members constituted the exercise of free speech. Donovan countered that the votes he demanded in his role as board member represented exercise of his duties as a concerned director.

 

At the trial level, the court did strike Donovan’s complaint and issued anti-SLAPP sanctions against him. On appeal, the court of appeals reviewed prior cases which illustrate the contours between what are protected activities as implicating constitutional rights and what constitutes the lawful exercise of duties by a corporate director.  The appellate court noted that the mere act of voting, however, is insufficient to demonstrate that conduct challenged in a cause of action arose from protected activity.  Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183, fn. 3 [118 Cal.Rptr.2d 330. Likewise in Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318 [135 Cal.Rptr.2d 903, the court held(?) that  defendants were not sued for their conduct in exercising their constitutional rights, but to compel their compliance with the provisions of the rent control law. According to the court of appeals in Donovan v. Dan Murphy Foundation, 204 Cal. App. 4th 1500 (Ct. App.2nd. App. Div. 2014) a board may have a statutory right to remove a director, but the exercise of that right is not necessarily an exercise of a free speech or petitioning right.

 

The California court of appeals reversed the decision of the lower court. This means that Donovan will not be subject to sanctions and his complaint will not be struck. The reversal, however, does not render any decision on the merits of Donovan’s claims concerning unlawful removal and entitlement to declaratory relief. But it does clarify the types of cases which implicate protected activities and which actually constitute legitimate causes of action which can be brought in California cases without subjecting oneself to sanctions and dismissal.

 

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 .represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson

Revised Uniform Limited Liability Company Act Brings Some Changes to How LLCs Function in California

Folsom California business litigation lawyer Last year the California Legislature passed new legislation revising the state’s laws governing limited liability companies. The new framework, known as RULLCA (California Revised Uniform Limited Liability Company Act), replaces the former statutory scheme and includes some significant changes which people forming limited liability companies need to recognize.

 

As with the previous scheme, limited liability companies (LLCs) may have both managers and members. But, in order for an LLC to constitute a manager-led LLC, both the Articles of Organization forming the LLC and the Operating Agreement setting the rules for the LLC must state that the LLC intends to have managers. Under the law as it existed prior to January 1, 2014, it was only necessary for such a statement to be included in the Articles of Organization.

 

Furthermore, some actions which managers can take on behalf of an LLC are now limited. These include: (1) a sale, lease or exchange of all or substantially all of the assets of the company and (2) any action outside the “ordinary course” of the company’s business. However, if the Operating Agreement contains language which gives managers the power to sell, lease, or exchange the company’s assets, then this limitation does not apply. Otherwise, such actions would entail the unanimous consent of all members. Accordingly, the Operating Agreement under RULLCA needs to be drafted with great attention to whether it is desirable to vest such authority in a manager or not. If the manager is not given such authority, a single member could wield significant veto power over these decisions affecting the company.

 

The new Act also delves more deeply in to what constitutes the fiduciary duties of members and managers of a LLC. These duties include the duty of loyalty, the duty of care, and “any other fiduciary duty.” RULLCA does give LLCs the chance to modify the duty of loyalty by expressly defining it in the LLC’s Operating Agreement.

 

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson

Perils of Pro Se Representation Undermine Recovery in CERCLA Case

California business litigation attorneyIn the federal courts, corporations cannot bring a civil action without representation by legal counsel. In addition, suspended corporations – or corporations not in “good standing with the California Secretary of State’s office” – cannot sue in a California court, according to California Revenue & Tax Code section 23301 and California Corporations Code section 2205.   These prohibitions, as well as the pro se litigant’s apparent inability to prepare a proper legal pleading caused a plaintiff, Omo Fagbohugbe, to, at least temporarily, lose his lawsuit against a few defendants he sued in an effort to recover sums he allegedly incurred for environmental cleanup work.

 

The plaintiff originally sued without a lawyer, both as an individual and also on behalf of Dave Drilling Environmental Engineering, Inc. (DDEE), three defendants for violations of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act), nuisance, trespass, waste and declaratory relief. The claims raised by DDEE were dismissed for two reasons: (1) as a suspended corporation under California law, DDEE lacks the capacity to prosecute a lawsuit in a California court and (2) the corporation, even if it were “active” under applicable law, would need to be represented by counsel in federal court. The District Court in Omo Fagbohugbe v. Caltrans, Case No. 13-cv-03801-WHO (USDC N.D. CA. 2014) refused to permit the corporation to sue the named defendants.

 

It did, however, consider the claims brought individually against three defendants: a dry cleaning operator, its(?) insurance company, and an adjacent property owner. With regard to each of these defendants, however, the Plaintiff failed to explain each of the claims he was raising with the specificity required by the District Court.   The remaining defendants in the case filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). In order to survive such a motion, the plaintiff must make a claim that is facially plausible. To meet that standard the plaintiff must plead facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” As the recitations made by the Plaintiff failed to meet this standard, the District Court dismissed most of the claims against the insurance company, Firemen’s Fund, although it did give the Plaintiff an opportunity to amend its Complaint – for a second time – relating to the remaining claims. Furthermore, the Plaintiff was given an opportunity to serve two other defendants – not yet part of the case – by a particular date set by the court.

 

In general, the case serves as a cautionary tale for individuals who believe they can successfully file civil actions without the aid of representation. It is likely the costs the individual plaintiff incurred by his flawed prosecution of the case far exceed any benefits he may have gained from the effort.

 

The Wilson Law Firm, a Professional Corporation, at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 handles wrongful death cases for the families or representatives of deceased individuals.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson

Supreme Court Rules for Private Landowner against Federal Government after Railroad Abandons Right of Way

California business litigation lawyer In the 1860’s and 70’s the federal government pursued a national policy to encourage the construction of railroads across the continent as a way to encourage commerce and enhance national security. Initial public acts gave direct land grants and subsidies to railroad companies but many citizens opposed these preferences to those interests and believed it conflicted with homestead legislation seeking to facilitate citizens’ development of lands out west   So in 1875 Congress passed the General Railroad Right-of-Way Act of 1875 (“the 1875 Act “) which granted railroad companies rights of way on federal lands to place and maintain railroad tracks and, if necessary, place railroad stations adjacent to the rights of way. A recent decision by the Supreme Court addressed what happens to such a right of way when the federal government sells some of its property to a private landowner and the railroad company holding the right of way has abandoned its interest in the right of way.

In 1976 the United States patented – or conveyed – an 83-acre parcel of land to Melvin and Lulu Brandt. The patent gave fee simple title of the land to the Brandts “subject to those rights for railroad purposes as have been granted to the Laramie Hahn’s Peak & Pacific Railway Company, its successors or assigns.” This particular right of way, like others, was granted pursuant to the 1875 Act.  The right of way is 66 miles long and 200 feet wide, and it meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border. In total, it covers ten acres of the parcel bought by the Brandts.

In 1987 the Union Pacific Railroad sold the right of way to the Wyoming and Colorado Railroad which decided in 1996 to abandon the right of way. By 2004 the railroad company had literally torn up the tracks and completed its abandonment of the right of way. Two years later, the United States sought to quiet title to that parcel. While some of the other landowners in the area did not make an objection to the attempt of the federal government to recover the property encompassed by the rights of way, Marvin Brandt contested the effort contending the abandoned right of way represented the termination of a use of an easement by the railroad not a reversion of that ten-acre parcel to the United States.

By a 8-1 margin, the United States Supreme Court agreed with the Brandts and overturned two lower court decisions in favor of the United States. In  Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257, 188 L. Ed. 2d 272 (2014) [2014 BL 64054], the high court held the right of way was an easement that was terminated by the railroad’s abandonment, leaving Brandt’s land unburdened. It relied on earlier precedent established in Great Northern R. Co. v. United States, 315 U. S. 262,that the 1875 Act “clearly grants only an easement” not some reversionary interest which would put the property back in the hands of the federal government once the railroad company abandons the right of way.

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson or visit its website at http://wilsonlawfirmca.com