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LAW OFFICES OF PATRICK H. DWYER
JUSTICE UNDER THE LAW NO ONE ABOVE THE LAW
APPELLATE DECISIONS AND BRIEFS Published Opinions 1. Successful Appeal in Leonard v. Superior Court. (2015) 237 Cal.App.4th 34.  Petition for Mandmamus was filed in Third District Court of Appeal to correct case classification.  Petition was denied. Petition for Review with the California Supreme Court was filed and an Order To Show Cause was issued to the Third District Court of Appeal.  The Court of Appeal then issued this decision granting all relief sought by Petitioner Leonard: download.pdf 2. Sucessful Appeal in Crummett v. Miller (1997) 53 Cal.App.4th 897: download.pdf This case involved the boundaries of a mining claim. 3. Successful Appeal in Mueller v. IRS (1991) US Tax Court, Docket No. 532-89S: download.pdf This case involved the taxpayers’ filing of a ministerial exemption for social security.  The IRS had not lost an appeal over this exemption until this case. Pending Appeals 1. Pending Appeal in the The California Court of Appeal, Third Appellate District This is an appeal of a summary judgment.  The case revolves around the fiduciary duty of majority shareholders to minority shareholders in a close corporation with subchapter S status.   Although this duty has earlier roots in California law, it was most clearly enunciated by the California Supreme Court in Jones v. H. F. Ahmanson & Co. (1969) 1 Cal. 3d 93.   The legal issues involce fiduciary duty, conflicts of interest, bylaws, and the business judgment rule, in particular, the interplay of the fiduciary duty rule and the business judgment rule. Daus v. Howser, et al (2017), Opening Brief: download.pdf 2. Pending Appeal in the California Court of Appeal, Third Appellate District This is an appeal of a granting of an Anti-SLAPP motion.   The central issue is whether the motion was timely filed, but the case also involves whether the litigation privilege, Civil Code §47(b), bars tort claims arising out of the unauthorized use of ptatient health information (”PHI”) under HIPAA by a debt collection agency. Leonard v. Retailer’s Credit Association of Grass Valley, Inc. (2016), Opening Brief: download.pdf, Reply Brief: download.pdf. Unpublished Opinions 1. Unpublished Opinion-- Successful Petittion for Mandamus in Sacramento Superior Court This was a Petition for Mandamus to overturn the Decision of the Board of Administrative Appeals for the California Public Employees Retirement System ("CalPERS").  The case involved the question of when an employee must file an application for permanent disability.  Thorman v. CalPERS (2016), Decision: download.pdf; Opening Brief: download.pdf, Reply Brief: download.pdf 2. Unpublished -- Denial of Petition for Certiorari n the U.S. Supreme Court. This is a 42 U.S.C. 1893 Civil Rights Action.  The subject is whether, under the due process clause, collateral estoppel may be applied if there has not been exhaustion or waiver of the right to appeal the original decision. Pellerin v. Nevada County (2013), Opening Brief: download.pdf, Reply Brief: download.pdf; Petition for Certiorari has been filed and is pending: download.pdf. The Ninth Circuit denied the appeal.  A petition for re-hearing was filed and denied: download.pdf The Petition for Rehearing was denied.  The U.S. Supremen Court denied the petition. 3. Unpublished -- Denial of Petition for Review in California Supreme Court. Southwell v. Helzberg, et al (2015) (Marin County Superior Court), Petition For Mandamus: download.pdf; Petition For Review: download.pdf. The Marin Superior Court, unlike the Yuba County Superior Court (see below), allowed the pleading of emotional distress damages.  However, the other issues (breach of contract and breach of fiduciary duty) were decided against Petitioner.   In addition, the right to amend the complaint to allege new, but not inconsistent facts, is before the court. Southwell v. Thomas (2014) (Yuba County Superior Court), Petition For Review: download.pdf. The primary issue was the availability of emotional distress damages due to negligence and/or reckless disregard of a client matter by an attorney. Ancilliary issues included the pleading of breach of contract and breach of fiduciary duty against an attorney. This Petition was denied. 4. Unpublished Opinion -- Unsuccessful appeal to California Court of Appeal,Third Appellate District Daus v. Moore (2014), Opening Brief: download.pdf Reply Brief: download.pdf The decision the Court of Appeal ignored California law in the area of fraud by concealment: download.pdf. A Petition For Rehearing was filed and denied: download.pdf.  A Petition for Review was filed and denied: download.pdf. 5. Unpublished Opinion -- Successful appeal in California Superior Court for Nevada County, Appellate Division RCA v. Leonard (2013), Opening Brief: download.pdf Reply to Opposition: download.pdf Petition For Certiorari To U.S. Supreme Court: download.pdf Petition For Review To California Supreme Court: download.pdf 6. Unpublished Opinion -- Successful appeal in California Court of Appeal, Third Appellate District McMenemy v. Colonial First Lending Group, Inc. (2013), Opening Brief: download.pdf   Reply Brief: download.pdf     Decision:  download.pdf 7. Unpublished Opinion -- Unsuccessful appeal of Denial Of Petition For Factual Innocence in California Court of Appeal, Third Appellate District People v. Pellerin (2013), Opening Brief: download.pdf,  Reply to Opposition: download.pdf 8. Unpublished Opinion -- Unseccessful Petition for Transfer to California Court of Appeal, Third Appellate District People v. Sinkey (2013), Petition For Transfer: download.pdf 9. Unpublished Opinion -- Successful Petition for Writ of Mandamus for Motion To Recuse Nevada County District Attorneys Office in the California Court of Appeal, Third Appellate District People v. Pellerin (2011), Petition: download.pdf   CA Attorney General Opposition to Petition: download.pdf   Reply to Opposition: download.pdf Alternate Writ of Mandamus Issued by California Court of Appeal, Third Appellate District: download .pdf 11. Unpublished Opinion -- Successful appeal in California Court of Appeal, Third Appellate District Kaput v. Hastert (2010) Opening Brief: download.pdf 12. Unpublished Opinion -- Successful appeal in California Court of Appeal, Third Appellate District Terry v. Levens (2005) Opening Brief: download.pdf Petition for Certiori CA Supreme Court (2005), cert. denied: download.pdf
10. Unpublished Opinion -- Successful Petition for Writ Of Mandamus for Right To Evidentiary Hearing Prior To Preliminary Hearing in the California Court of Appeal, Third Appellate District People v. Pellerin (2011), Petition: download.pdf Reply to Opposition for Mandamus Re Evidentiary Hearing: download.pdf Palma Letter issued directing Superior Court to reverse its ruling: download .pdf
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Appellate Decisions and Briefs