SUCCESSES

Wendy Mateo prevails against Darren Chaker

On October 4, 2012, the California Court of Appeals, Fourth District, Division One, affirmed the dismissal of the complaint of Darren Chaker AKA Darren Del Nero AKA Darrin Delnero on the grounds of his claims arising from the exercise of Ms. Mateo's right to comment on a matter of public interest. The Court of Appeal also ordered the decision published. The slip opinion is here, and also may be reviewed on the Court of Appeal's website here.

Anice Plikaytis prevails against Debra Roth!

Congratulations to Anice Plikaytis in her successful defense of the meritless claim by Debra Roth! The Jury, in their eminent wisdom, denied Debra Roth?s claims and found that Debra Roth had received $662,559.55 from Anice Plikaytis. A copy of the verdict can be review here: Verdict 5/25/2012

San Diego Jury finds Dan Holsenback's client Ron Courtois liable; Judge Denton awards punitive damages.

On December 6, 2007, a San Diego Superior Court jury found that Ron Courtois (bottom of page 30, shirtless) violated fiduciary duties that he owed to inventor and electrical engineer Jesper Steensgaard. The jury awarded compensatory damages in the amount of $20,000, and found that Ron Courtois committed his actions with the malice, oppression, or fraud, as a prerequisite to an award of punitive damages. Courtois and Steensgaard agreed that San Diego Superior Court Judge Steven R. Denton would hear the claim for punitive damages at a later time. Judge Denton heard the punitive damages portion of the trial and has awarded an additional $10,000 in punitive damages against Ron Courtois. The statement of decision is located here. Remaining in the suit for determination are the claims for dissolution of a limited liability company (iCoustics LLC), injunctive relief for misappropriation of trade secrets, and for unfair competition remedies. A copy of the verdict is located here: Courtois v. Steensgaard verdict. Ron Courtois was represented by the law firm of Holsenback Taylor, by J. Daniel Holsenback, the attorney that initiated the case against Jesper Steensgaard, and then later dismissed the prosecution of his complaint in the case before trial. This is a photo of Professor Steensgaard and his attorney Scott McMillan after receiving the verdict:

Jesper Steensgaard and Scott McMillan

Bivens v. Sanford, L.P., et al.

In a case against Sanford, L.P. (the maker of Sharpie pens) The McMillan Law Firm obtained a reversal of the trial court's dismissal of Bivens v. Sanford, L.P., et al. The Sanford case concerned the alleged violations of California's unfair competiton and false advertising law. Specifically, Bivens claimed on behalf of the general public that Sanford allegedly manufactured packages of Sharpie pens containing less than the number of pens stated on the packages. These defectively packaged pens were then allegedly sold to unsuspecting consumers by Costco Wholesale, Inc. and Newell Operating Company in violation of California law. While the parties litigated the case at the trial court level, the California legislature passed Proposition 64, which had the effect of hamstringing Bivens by making him ineligible to sue on behalf of the general public. With the ammunition provided by Prop. 64, Sanford's attorneys argued that the case should be dismissed. The McMillan Law Firm argued against the dismissal of the case, asserting that Biven's should be given the opportunity to amend his complaint to substitute another plaintiff in his place. The trial court, however, agreed with Sanford and denied the Firm's request to amend, thus bringing an untimely end to Bivens' mission to vindicate the rights of consumers. In its characteristically relentless pursuit of justice, however, the Firm appealed the trial courts decision and won. Read the decision

Kanj v. Viejas Band of Kumeyaay Indians

The McMillan Law Firm's work in the administrative law arena is exemplified by its representation of Jamal Kanj in Kanj v. Viejas Band of Kumeyaay Indians. Kanj sued the Viejas Band of Kumeyaay Indians for violating his rights as a "whistle blower" under the federal Water Prevention Pollution Control Act (Clean Water Act). Viejas then moved for summary decision and claimed that the tribal sovereign immunity of the Viejas Band of Kumeyaay Indians made it immune from suit. The McMillan Law Firm opposed Viejas' motion and won. Viejas then appealed to the Administrative Review Board. The Firm opposed Viejas motion and won a second time, thus securing Kanj's right to sue Viejas and establishing a precedent in the process. Order of Remand

Lytwyn v. Fry's Electronics, Inc.

In Lytwyn v. Fry's Richard Lytwyn, The McMillan Law Firm's client, sued Fry's Electronics for allegedly selling him a used CD-ROM writer that Fry's represented as new. Lytwyn moved for summary adjudication of his claims that Fry's had violated Business and Professions Code section 17531 and that Fry's conduct also violated Business and Professions Code section 17200. Fry's moved to have Lytwyn enjoined from prosecuting his case pending an appeal of another case involving a wholesaler. The trial court granted Fry's motion, thus enjoining further action in the case. The McMillan Law Firm, however, appealed the trial court's decision and secured a reversal of the trial court's order. Decision (depublished pending California Supreme Court's grant of review; review later dismissed)

Kennedy v. Blanchard (In re Blanchard)

In Kennedy v. Blanchard (In re Blanchard), Scott McMillan acted as a special litigation counsel for Chapter 7 Bankruptcy Trustee, James L. Kennedy, in prosecution of an action to avoid transfers of assets to defraud creditors.  After six years of litigation, McMillan recovered sufficient funds, in excess of $5 million, to fund a bankruptcy estate that had been closed as after a determination of no assets.  All creditor claims were fully paid, with interest retroactive to 1995.

“The adversary [case] has been pending since 1999. There are numerous examples on the docket that show debtor’s failure to cooperate with the discovery process which ultimately resulted in the Court granting the default judgment against him. It is only through McMillan’s diligence and persistence that he obtained a judgment and collected assets that will result in the debtor’s creditors . . .  being paid 100%, plus interest, on their claims.” (Memorandum Decision, p. 9).

      — Hon. John J. Hargrove, United States Bankruptcy Court Judge, Southern District of California

Memorandum Decision of December 12, 2005.  Order  of September 20, 2006

Thomas v. Fry's Electronics, Inc.

The McMillan Law Firm represented website operator Steve Thomas in the United States District Court case Steve Thomas v. Fry's Electronics Inc., which involved Thomas' rights to operate his "gripe" website concerning Fry's Electronics, Inc., and its business practices. The Firm prevailed on Thomas' appeal regarding the applicability of California's anti-Strategic Lawsuit Against Public Purpose (anti-SLAPP) motions to strike in cases filed in Federal Courts. The Firm's success resulted in a published ruling by the United States Court of Appeals for the Ninth Circuit. Ninth Circuit's Opinion

Bivens v. Gallery Corp.

The Bivens v. Gallery Corporation case represented a continuing effort by The McMillan Law Firm to vindicate the rights of California’s citizens to be free from misleading advertising techniques that are prohibited under section 17504 of the California Business and Professions Code.  Although the case was unsuccessful, the California Supreme Court ordered that the Court of Appeals decision, which was adverse to the Firm’s client, be de-published.  Because the case is de-published it cannot be cited as a precedent in other cases.

The crux of Bivens v. Gallery Corporation concerned Webster Bivens who sued Gallery Corp. on behalf of the general public pursuant to sections 17204 and 17535 of the California Business and Professions Code.  Bivens argued that Gallery Corp. misled the public by advertising and then refusing to sell single twin mattresses or box springs at the advertised unit price of $48.  Although the California Court of Appeal found in favor of Gallery Corp., the Supreme Court of California granted Biven’s Petition for Review.

Court of Appeal Decision
Petition for Review Granted (review later dismissed)