Posted on January 30, 2009 by Tami Cowden

Nevada Supreme Court issues First Six Opinions for 2009

The first batch of opinions from the Nevada Supreme Court for 2009 includes three cases focusing on changes in the state’s DUI law, with the state coming out the loser in all three. Other cases involved workers’ compensation, the multistate tobacco settlement, and statutes of limitations.

 

In Stromberg v. Dist. Ct., the Court held that NRS 484.37941, which allows a defendant charged with a 3d offense DUI to plea guilty but, upon successful completion of treatment, receive a judgment for a 2d offense DUI, applies retroactively to offenses committed before the statutes effective date, allowing a defendant plead guilty after the effective date and apply for treatment. The Court also held that statute does not unconstitutionally infringe upon the executive power.

In Savage v. Dist. Ct., the Court held that NRS 484.37941 does not require counties to create treatment programs, but the court does have the authority to order the Department of Parole and Probation to supervise offenders in a treatment program pursuant to NRS 484.37941. The court again the rejected the state’s claim that NRS 484.37941 allows the judicial branch to invade Executive powers.

 

In State, Dep't of Motor Vehicles v. Terracin, a consolidated appeal, the Court held that NRS 483.460 unambiguously bases a period of mandatory suspension of a driver’s license following conviction for DUI upon the section of NRS 483.460 under which the conviction occurred. In each of these consolidated cases, the licensee had previously been convicted of a DUI offense, but nevertheless, had been convicted as first time DUI offenders. The DMV suspension of their licenses for 1 year, as  multiple DUI offenders, was no consistent with the plain language of the statute.

 

In Stalk v. Mushkin, the Court held that claims for claims for intentional interference with prospective business advantage and intentional interference with contractual relations involved claims for injury to personal property and are therefore governed by the three-year statute of limitations in NRS 11.190(3)(c). A claim for a breach of fiduciary duty arising from an attorney-client relationship is a claim for attorney malpractice, and therefore governed by the four year (or two year after discovery) limitations period in NRS 11.207(1).

 

In Attorney General v. Dist. Ct. (Philip Morris),  The Court determined that the Master Settlement Agreement (MSA) in the tobacco settlement requires arbitration of the state’s pursuit of a declaratory judgment that it had diligently enforced its  “qualifying statute” (requiring tobacco companies to join or pay into the MSA fund).  

 

In Garcia v. Scolari's Food & Drug, the Court held that an attorney’s deliberate strategy to withhold certain evidence from the hearing officer in an corkers’ compensation claim does not warrant a remand during a judicial review to allow the evidence to be submitted.
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Posted on February 26, 2008 by Tami Cowden

Jury must decide if securities fraud plaintiff placed on inquiry notice

In Betz v. Trainer Wortham, the Ninth Circuit made small amendments to the previous opinion, in which the three panel court had held that a jury must decide whether a securities fraud plaintiff was put on inquiry notice of fraud long enough before she filed suit for the statute of limitations to have run. With such amendments, the motion for en banc rehearing is denied. Judge Kozinski writes a stinging dissent from that denial, noting that the Court places itself in “left field again”—that is, alone among all the appellate circuits—by requiring a jury to determine whether the investor was placed on inquiry notice where the facts are undisputed.  Noting here that the investor claims she had been promised zero risk on her investment, yet understood statements showing a decrease in her principal, Kozinski argues that as a matter of law, she was placed on sufficient inquiry notice to start the running of the statute.

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Posted on May 14, 2007 by Tami Cowden

New standard to determine running of statute of limitations on securities fraud claims.

 

In Betz v Trainer Wortham & Co, Inc.,  the Ninth Circuit reversed the district court’s finding that the federal securities fraud claims were time barred. The district court had granted summary judgment because the plaintiff was aware of the depleting value of her portfolio, contrary to promises she had been made, more than two years before the filing of her complaint. The Court held that because the plaintiff was promised she would be taken care, she could not be aware of the scienter element of securities fraud until the defendants admitted to her that they would do nothing to recover her losses.  

The Court also adopted the Tenth Circuit’s “inquiry-plus-reasonable-diligence” standard to determine when a security fraud claim accrues for purposes of the statute of limitations. Under this standard, the statute begins running when the plaintiff had sufficient suspicion of fraud to investigate further, and with such investigation, should have discovered the facts constituting fraud. Here, because the, concerns of the plaintiff, a naïve investor, were lulled by the defendants’ assurances, the Court rejected the argument that plaintiff’s declining account balances should have put her on inquiry notice. Because a reasonable jury could conclude that the plaintiff’s delay was not unreasonable, summary judgment should not have been granted. 

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Posted on May 4, 2007 by Tami Cowden

Different Sections of a Web Site Still a Single Web site for Purposes of Publication

In Cantella v. Van De Kamp, the Ninth Circuit  affirmed the dismissal of civil rights claims against the State Bar of California and several of its officers on statute of limitations grounds. The appellant, who conceded in pleadings that he had been investigated by disciplinary authorities forty-seven times and sanctioned 26 times in the period between 1989 and 1998, entered into an agreement in 1999 in which an eighteen month suspension was stayed, and a thirty day suspension was stayed. An account of the sanction was published in the bar’s print and online journals in February 2000. After 2003, the attorney search function of the state bar’s web site allowed an attorney’s public disciplinary record to be displayed. In 2004, opposing counsel in one of appellant’s cases discovered the disciplinary account through the search function, and cited it in a motion in that case.  In July, 2005, appellant sued both opposing counsel and the bar defendants, claims various constitutional violations. The Court reiterated that a single publication can give rise to only one cause of action.

The Court, citing Oja v. Army Corps of Engineers, 440 F.3d 1128 (9th Cir. 2006),  held that the claims against the state bar arose upon the initial publication of the disciplinary account; the purported subsequent republication was located at the same website as the initial website publication, albeit, at a different section of that website. Because California’s then-existing one year statute of limitations for personal injury claims applied to this action, the appellant’s claims were time barred.

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