Business Law

Health and Safety Code § 1418.8 requires an interdisciplinary team (IDT) to make healthcare decisions for “unbefriended” nursing home residents who lack capacity to make those decisions. A nursing home resident, a taxpayer, and the California Advocates for Nursing Home Reform petitioned for a writ of mandate against the Director of the Department of Public Health (Department) challenging the constitutionality of section 1418.8. The superior court granted the petition, ruling that section 1418.8 was unconstitutional because it (1) facially violated due process by failing to require notice to a resident of a physician’s determination that the resident lacks capacity, has no surrogate decisionmaker, needs a recommended medical intervention, and has a right to judicial review; (2) violated due process when applied to authorize an IDT to make decisions about administering antipsychotic medication; and (3) violated the patient’s privacy rights regarding end of life withdrawal of care decisions. The court entered judgment and prohibited enforcement of section 1418.8 to the extent it conflicted with those rulings. Both parties appealed. Read more

Summary: The Fifth Circuit has held that two agricultural purchase money security interests were unperfected because the secured creditors' financing statements listed both the debtor's correct name and its DBA, thus making it impossible for the Secretary of State's standard search logic to pick up the filings. Further, the contractual choice of law clauses contained in the parties' invoices did not control the issue of lien perfection. [Fishback Nursery, Inc., vs. PNC Bank, N.A., 2019 Westlaw 1548823 (5th Cir.).] Read more

When a client requests the preparation of a purchase or sale agreement for limited liability company (LLC) interests, counsel should always gather additional information prior to the preparation of such an agreement to obtain a complete picture of the exchange. Read more

Summary: A California appellate court has held that a fraudulent transfer claim attacking a collusive stipulated judgment between a judgment debtor and his brother is not subject to the litigation privilege. [Chen vs. Berenjian, 2019 Westlaw 1397592 (Cal.App.).] Read more

The Health Law Committee of the CLA’s Business Law Section is partnering with other nonprofits on an Oct. 26 event aimed at informing seniors and low-income individuals about the importance of advanced healthcare directives. Read more

July 12, 2019 the U.S. Environmental Protection Agency (“EPA”) sent its rule to repeal the 2015 Waters of the U.S. (“WOTUS”) Rule to the White House Office of Management and Budget (“OMB”) for interagency review. OMB reviews are limited to 90 days with no minimum period for review. The final rule is the first step in the two-step repeal-and-replace process undertaken by the Trump administration. Once the White House interagency review is complete, EPA can formally repeal the 2015 WOTUS Rule and move forward with finalizing its replacement rule. Read more

Recent California legislation addresses issues arising from two well publicized emerging technologies, bitcoin and blockchain. The more recent, Assembly Bill (“AB”) 1489 governs regulatory and substantive law in respect of virtual currency or bitcoin. AB 2658, enacted late last year, creates a committee to study and report on the use of blockchain, bitcoin’s underlying technology, in various contexts and transactions. Both these bills recognize the importance of harmonizing existing law with actual practice utilizing new and emerging technologies. Read more

Summary: A district court in California has held that a state statute invalidating contractual penalty provisions was inapplicable to a default interest rate clause contained in loan documents. [East West Bank vs. Altadena Lincoln Crossing, LLC, 2019 Westlaw 1057044 (C.D. Cal.).] Read more

Summary: A California appellate court has held that a judgment creditor conducting an examination of a judgment debtor may obtain a subpoena duces tecum directing the debtor's bank to produce evidence, even though no examination of the bank itself had been ordered. [Shrewsbury Management, Inc. vs. Superior Court, 2019 Westlaw 1109754 (Cal. App.).] Read more

Summary: A California appellate court has held that a purchaser of conditional sales contracts was liable for the debts of two defaulting vehicle dealerships because the senior inventory lender retained the vehicles’ title certificates. [Ron Miller Enterprises, Inc., vs. Lobel Financial Corp., Inc., 2019 Westlaw 1199523 (Cal.App.).] Read more