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Illinois Official Reports Appellate Court

Illinois Official Reports Appellate Court

¶ 33 In any event, if we were to address the claimant’s constitutional argument, we would reject it. The equal protection clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) requires the government to “treat similarly situated individuals in a similar manner.” (Internal quotation marks omitted.) Byrd v. Hamer, 408 Ill. App. 3d 467, 490 (2011). It does not preclude the State from enacting legislation that draws distinctions between different categories of people, but it does “prohibit the government from according different treatment to persons who have been placed by a statute into different classes on the basis of criteria wholly unrelated to the purpose of the legislation.” Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 322 (1996). In reviewing a claim that a statute violates equal protection, the court applies different levels of scrutiny depending on the nature of the statutory classification involved. Id. at 322-23. Classifications based on race, national origin, sex, or illegitimacy, and classifications affecting fundamental rights receive heightened scrutiny. Id. at 323. In all other cases, the court employs only a “rational basis review.” Id. As the claimant correctly notes, rational basis review applies in this case.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

“It is appellant’s ‘burden on appeal to affirmatively challenge the trial court’s evidentiary rulings, and demonstrate the court’s error.’” (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.) The appellant may not simply argue the trial court erred in excluding a particular piece of evidence. Instead, the appellant must identify each evidentiary ruling he or she challenges, and provide reasoned argument and citations to authority to demonstrate the ruling was erroneous. The failure to do so results in a forfeiture of any challenge to the evidentiary rulings. “‘We are not required to search the record to ascertain whether it contains support for [the appellant’s] contentions.’” (Ibid.)
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

We find none of these contentions persuasive and affirm the judgment. Assuming, as Turchik contends, that his claims arose under federal patent laws – and thus were subject to exclusive federal jurisdiction – we cannot provide him any relief. The federal courts are a wholly separate system, and we have no authority to review the propriety of the remand order issued by the federal district court. Moreover, we cannot fault our own trial court for failing to resolve claims over which it lacked jurisdiction. Perhaps more to the point, our trial court has no power to compel the federal court to exercise its own jurisdiction. And nor do we.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

In order to resolve this problem, the trial court considered the Tweten will, which was created in 1991, along with the testimonies of Leonard, the attorneys, and financial advisors responsible for drafting the Trust. This extrinsic evidence provided clear and unambiguous evidence of the intent of the Twetens. According to both McCutchen and Hahn, it was consistent with the wishes of the Twetens that “when the first spouse died they wanted to have all of the assets available to the surviving spouse.” Hahn was aware of the absence of an FET for 2010, but failed to fully explain to the Twetens what such absence meant because he thought the chance of there being no FET in 2010 was “so remote that it was almost inconceivable.” While Hahn informed the Twetens they may need to revisit the Trust in the future, he did not explain why. He further testified that the computer program he used, Pro doc, did not contain a “savings clause” option in the event of no FET; rather, Pro doc added it in 2009. Hahn’s testimony alone establishes drafting errors that resulted in the Trust not accomplishing what the Twetens intended. (Ike, supra, 61 Cal.App.4th at pp. 67-68.) Nonetheless, further evidence of the intent of the Twetens was presented through their 1991 will, the Amendment, Leonard’s
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

affirmatively advised a contractor to collect $15,000 from a job on which he was working even though he himself owed the laborers and material suppliers, and then stop work on the project. The contractor followed the advice and within about a month filed for bankruptcy. (Id. at p. 1505.) But there was a big problem with the attorney’s advice. A California Penal Code section makes a contractor’s diversion of funds from completing a job a felony. (Ibid., citing Pen. Code, § 484b.) When the contractor was subsequently prosecuted for having acted on the bankruptcy attorney’s direct advice, the contractor sued the bankruptcy attorney for legal malpractice. While the contractor did have an expert testify at trial against the bankruptcy attorney, that expert was not expert in bankruptcy, and could only testify about attorneys in general. (Id. at p. 1506.) The case ended in a nonsuit in favor of the defendant. In reversing the judgment, the appellate court said that the bankruptcy attorney’s malpractice was so clear no expert was needed. The court in fact used the “so clear” phrase twice in two successive paragraphs: once in quoting from Wilkinson v. Rives, supra, 116 Cal.App.3d at pages 647-648, and once in delivering its holding (that time without quotation marks). (Goebel, supra, 214
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Illinois Official Reports

Illinois Official Reports

¶ 22 The construction of an insurance policy and the determination of contractual rights involve questions of law that are properly addressed in a summary judgment procedure. Certain Underwriters at Lloyd’s, London v. Central Mutual Insurance Co., 2014 IL App (1st) 133145, ¶ 7. That is particularly true where, as here, the parties agree that no factual disputes are present, and thus the only question is who is entitled to judgment as a matter of law. See Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 399 (2010). Both a circuit court’s grant of summary judgment and the construction of an insurance policy are reviewed de novo. Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 360 (2006).
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ILLINOIS OFFICIAL REPORTS

ILLINOIS OFFICIAL REPORTS

school bus operated by the local school districts. Northbrook, 194 Ill. 2d at 97. The insurer of the school districts sought a declaration that it had no duty to defend against the underlying lawsuits filed as a result of the accident. Id. at 98. Based on the motor vehicle exclusion in the applicable policy, the supreme court determined that the insurer had no duty to defend because the allegations in the underlying complaints failed to state facts that brought the cases within or potentially within the policy coverage. Id. at 98-99. The supreme court stated that the allegations against the school districts–namely, that they poorly planned bus routes and failed to warn bus drivers of potential hazards along those routes–were only “rephrasings” of the fact that the injuries arose out of the school districts’ use of the motor vehicle and not independent of any negligent operation of the bus. Id. at 99.
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ILLINOIS OFFICIAL REPORTS

ILLINOIS OFFICIAL REPORTS

¶ 18 The effect of care, custody, and control was more clearly stated in Papesh v. Matesevac, 223 Ill. App. 3d 189, 192 (1991), where the court held that a mother, who was technically the legal owner of a dog, was not liable for a dog bite. The mother had purchased the dog for her son who was in the residential custody of his father and no longer lived in the mother’s home. The plaintiff argued that the mother was liable as an owner by virtue of the parent- child relationship, but the court rejected that argument, stating that the Act “contemplates some level of care, control, or custody.” Id. The court further stated:
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Illinois Official Reports

Illinois Official Reports

¶ 21 Defendants argue, however, that Illinois common law has defined “insurance producer” as an “insurance broker.” Defendants cite United General Title Insurance Co. v. AmeriTitle, Inc., 365 Ill. App. 3d 142, 152 (2006), overruled on other grounds by Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461 (2008), for the statement that “[i]n Illinois, ‘insurance producer’ is used synonymously with the term ‘insurance broker.’ ” United General did not, however, construe the term “insurance producer” within the context of section 2-2201. Additionally, United General did not state that the definition of “insurance producer” is limited to insurance brokers and excludes insurance agents. While our appellate court has used the terms “broker” and “producer” interchangeably and has held section 2-2201 imposes a statutory duty on insurance brokers (see Garrick v. Mesirow Financial Holdings, Inc., 2013 IL App (1st) 122228, ¶¶ 31, 35), we have not found any express holding that insurance agents cannot also be included within the term “insurance producer.”
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

responses to inquiries about coverage from selling agent].) Instead, this is a case in which plaintiff formed inaccurate and unrealistic expectations about the contents of the Policy, then apparently failed to read the Policy to see whether these conjectures had any basis. “As the Supreme Court stated in Sarchett v. Blue Shield of California (1987) 43 Cal.3d 1, 15 . . . , a court ‘must hold the insured bound by clear and conspicuous provisions in the policy even if evidence suggests that the insured did not read or

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO E057073

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO E057073

In its statement of decision, the court stated that it had “carefully considered the arguments of [Kathy and Charlynn] pertaining to the limited capacity of one holding a life estate to encumber real property,” but rejected the argument because it “ignores the specific terms of the trust, which empower the surviving trustor to invade the principal (thus, the fee simple interest) of assets in the decedent’s sub-trust for health, support and maintenance. . . . Reasonable minds can differ as to the correct scope of health, support and maintenance, but there exists no intractable principle of real property law, pertaining to life estates or otherwise, that precludes the court from construing and applying the provisions of the trust.”
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO E OPINION

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO E OPINION

Under Insurance Code section 2071, subdivision (a), each party must select “a competent and disinterested appraiser,” who then jointly select a competent and disinterested umpire. 11 After AMCO selected DeLise as its appraiser, the Reids filed a petition in superior court to have him disqualified. 12 In that petition, the Reids alleged, among other things, that DeLise was not impartial and, therefore, should be disqualified as AMCO’s appraiser because of his past and current relationship with AMCO and its attorney, Cannon & Nelms. The Reids, as previously noted, dismissed the petition to disqualify DeLise without prejudice and proceeded with the appraisal.
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE B182072

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE B182072

“[S]ection 425.16 requires that a [trial] court engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) We review the trial court’s decision de novo. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN B247927

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN B247927

Keyes filed a demurrer to Biro’s complaint, arguing all of the claims, with the exception of the claims for providing false information to the small claims court and obstructing justice, were barred by res judicata. Keyes argued that Biro’s claims for medical malpractice, breach of contract, falsifying medical records, and providing false information to the Medical Board should be dismissed because they sought redress for the same injury and stemmed from the same conduct giving rise to his small claims action, and they were fully litigated to final judgment before the small claims court. Keyes also argued all of the claims, with the exception of the medical malpractice claim, were not sufficiently pled to state causes of action. 1
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Moreover, we decline to follow Colton and Cho because they relied on Taus without explaining why Oasis did not apply. Colton failed to even acknowledge Oasis (Colton, supra, 206 Cal.App.4th at pp. 773-774) and Cho explained it did not read Oasis as broadly as the decisions that concluded Oasis implicitly overruled Taus (Cho, supra, 219 Cal.App.4th at p. 527). Cho explained it allowed the trial court to strike part of the cause of action because otherwise a plaintiff could tactically limit the reach of the anti-SLAPP statute by deliberately pleading a mixed cause of action. (Ibid.) This reasoning is at odds with the purpose of the anti-SLAPP statute and the Oasis holding. The statute is designed to prevent plaintiffs from filing meritless claims to chill protected speech. Once the complainant has shown the cause of action has merit, the rationale for quickly disposing of meritless claims no longer applies. As Oasis notes, a probability of prevailing on any part of a cause of action will defeat an anti-SLAPP attack. (Oasis, supra, 51 Cal.4th at p. 820.) Cho’s concern over tactical pleading undermining the reach
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

As explained in Mittenhuber v. City of Redondo Beach, supra, 142 Cal.App.3d at page 6, section 830.4 was a codification of Perry v. City of Santa Monica (1955) 130 Cal.App.2d 370 at page 372, in which the Court of Appeal, stressing that “a city is not an insurer of the safety of travelers,” held that the defendant had no duty to erect stop signs even at an allegedly blind intersection. Although on its face this proposition may seem somewhat surprising, it has been consistently recognized and upheld. (See City of South Lake Tahoe v. Superior Court (1998) 62 Cal.App.4th 971, 978 [there having been no duty to erect a stop sign, there could be no liability for the failure to replace it after it was knocked down]; Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1195 [no liability when city-installed traffic signals became inoperative due to power failure;
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

On June 25, 2013, the demurrer to the Complaint was heard. The trial court ruled that the causes of action of fraud, intentional tort, defamation, intentional infliction of emotional distress, and negligence all did not state facts sufficient to constitute a cause of action against Tarbell and Francis. The trial court advised Lepe that he needed to allege in more detail what Tarbell and Francis did wrong and to address the statute of

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

"Review of an order granting or denying a motion to strike under section 425.16 is de novo." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) This court considers " 'the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.' " (Ibid., citing § 425.16, subd. (b)(2).) The court does not weigh or compare the evidence, but rather accepts as true the evidence favorable to the plaintiff while evaluating the defendant's evidence " 'only to determine if it has defeated that submitted by the plaintiff as a matter of law.' " (Soukup, at p. 269, fn. 3.) The appellate court employs the same procedure as the trial court in determining how the motion should have been decided. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1651-1652.)
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Illinois Official Reports

Illinois Official Reports

suggesting the phrase “[e]ach such bond” in the third paragraph applies only to bonds which already have payment bond provisions contained therein. Plaintiff asserts that “the import of section 1 of the Bond Act is to deem the stated language added only after it has been established that payment bonds were obtained pursuant to that section.” It is self-evident, however, that if a bond already has a provision for payment to subcontractors it would be unnecessary to deem the payment language contained in paragraph three into that bond. Plaintiff’s suggested interpretation would render the language contained in paragraph three that “[e]ach such bond is deemed to contain the following provisions whether such [payment or completion] provisions are inserted in such bond or not” meaningless or redundant. See People v. Jones, 223 Ill. 2d 569, 594 (2006) (this court has an obligation to avoid a construction of a statute which would render a part of it redundant or superfluous and instead must presume that each part of the statute has meaning).
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Illinois Official Reports

Illinois Official Reports

¶ 1 This appeal involves an insurance coverage dispute between plaintiff, Mt. Hawley Insurance Company (Mt. Hawley), and defendant, Certain Underwriters at Lloyd’s, London (Underwriters). Mt. Hawley brought a declaratory judgment action against Underwriters, seeking a declaration that Underwriters owed a duty to defend and indemnify certain parties named as defendants in a personal injury suit, as additional insureds under a commercial general liability (CGL) policy issued by Underwriters. Cross-motions for summary judgment were subsequently filed by the parties. The circuit court entered summary judgment in favor of Mt. Hawley, finding that, as a matter of law, Underwriters was estopped from raising a policy defense to coverage after it refused to defend its additional insureds under a reservation of rights or to seek a declaratory judgment on coverage. On appeal, Underwriters argues that the circuit court erred in its ruling, because under the vicarious liability doctrine, liability cannot be imposed on Underwriters for its additional insureds, where the named insured was found not liable and awarded summary judgment in the underlying negligence suit. Underwriters also contends that its vicarious liability defense is not a “policy defense” for purposes of the estoppel doctrine in this case. For the following reasons, we affirm.
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