Post-Birth Conduct and Parentage

The rise in the number in-vitro fertilization lead California to amend its Family Code in 1988 to clarify the legal status of sperm donors for in-vitro fertilization. The Legislature enacted the Uniform Parentage Act that included what is now California’s Family Code section 7613.  This law stated that a sperm donor that provided his semen to a licensed doctor or fertility specialist or sperm bank will not be considered the child’s natural father unless he is married to the woman impregnated.  The purpose of this law was to ensure that the mother would not have to confront a paternity suit from the sperm donor and the donor would not be faced with child support payments.  Yet the law did not clarify the rights of a father who cohabitates with the mother but is not married to her when they conceive a child through in-vitro fertilization.

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In 2005, the Second District Court of Appeal held in Steven S. v. Deborah D. (2005) that a sperm donor to a licensed physician cannot legally establish parentage even if he cohabitated or had an sexual relationship with the mother.  The Court was categorical in asserting that “[t]here can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician.”  In Jason P. v. Danielle S., the Second Appellate District Court acknowledged that it should not have been so doctrinaire and remanded the case to the trial court to determine if the plaintiff could establish parentage. It further stated that a sperm donor may establish parentage through post-birth conduct.  

Jason P.’s and Danielle S.’s relationship is fairly complicated.  In 2006, Jason P. and Danielle S. began trying to conceive naturally. Although Danielle S. became pregnant in December of 2006, she was not able to take the baby to term.  The couple began trying to use fertility treatments to increase Danielle’s chances of conception.  In October 2007, Jason P. was told that the problem conceiving may be due to his low sperm count and so he had surgery to correct that.  The couple also started to look at in-vitro fertilization.  In May 2008, Danielle moved out of Jason’s home to a home nearby.  Danielle also indicated that she wanted to become a mother without Jason or any other man acting as the father.  A month after she moved, Danielle purchased an anonymous donor’s sperm from a sperm bank. In September 2008, Danielle moved back in with Jason while her home was remodeled.  In late 2008 or early 2009, Jason gave Danielle a letter indicating that he was not ready to be a father, but she can use his sperm as long as she did not reveal the source of the sperm.  Danielle decided to use Jason’s sperm and in March 2009 she was inseminated through an in-vitro fertilization process with Jason’s sperm.  On the informed consent forms, she indicated that Jason was the father.

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In December 2009, Gus was born.  Jason maintained a relationship with Gus for the next two and a half years.  Jason presented evidence at trial demonstrating that Gus referred to Jason as “dada” and that Danielle referred to Jason as “dada” in Gus’ presence.  When Jason moved to the east coast for 6 months, Danielle and Gus made several trips to see him and Jason spoke with Gus on Skype.  Jason continued his relationship with Gus until Danielle ended it when she also ended the relationship between Jason and her.

The Second Appellate District viewed Section 7613 with regards to the facts laid out above and held that it is not a complete bar to all claims of paternity, but only ones based on biological connection between father and child.  The Court stated that its opinion in Steven S. only precluded granting paternity to a man based solely on his sperm donation and the biological connection to the child.  Jason P. has based his claims of paternity on several factors, including the constitutionality of the statute and his post-birth conduct with the child.  The Court therefore held that Jason could establish his paternity if he based his claims not on his providing sperm but on other factors such as his post-birth conduct.  The Court therefore remanded the case to the trial court to determine if Jason could establish his parentage through means other than those disallowed by Section 7613.

Raging Bull’s Copyright Problems

Metro-Goldwyn Mayer produced and released “Raging Bull” in 1980.  This iconic film was directed by Martin Scorsese and features Robert De Niro as “Jake La Motta,” a boxer that destroys his family by taking the same attitude that makes him a champion home.  For this film, Robert De Niro won an Academy Award.  While “Raging Bull” was not a commercial success (only earning $24 million off of an $18 million budget), it was critically acclaimed and continues to be thought as one of Martin Scorsese and Robert De Niro’s best films.  Yet recently, there has been a dispute over whether the copyright is owned by Frank Petrella, the author of two screenplays and a book about Jake La Motta, or MGM.

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Today, the U.S. Supreme Court in Petrella v. Metro-Goldwyn-Mayer, Inc. et al. ruled on a critical issue concerning the law of copyright which will allow Frank Petrella’s daughter to continue her suit for copyright infringement of “Raging Bull.”  In 1963, Frank Petrella in collaboration with Jake La Motta wrote a screenplay portraying the life of Jake La Motta.  He would later go on to write a book and another screenplay, but the 1963 screenplay is the focus this suit.  The copyright to the 1963 screenplay listed Frank Petrella as the sole author, but stated that Jake La Motta worked in collaboration on the screenplay.  In 1976, Frank Petrella and Jake La Motta assigned their rights to the copyrighted works mentioned above to Chartoff-Winkler Productions, Inc.  United Artists, a subsidiary of Metro-Goldwyn-Mayer, purchased the motion picture rights to the book and both screenplays.  The parties declared that the rights agreed to in the contract were “exclusive and forever, including all periods of copyright, renewals and extensions thereof.”

In 1981, Frank Petrella died while all the copyrights discussed above were still in the initial period of the copyright.  Under copyright law prior to 1978, a copyright-holder has an initial period of 28 years during which s/he can hold onto the copyright and an additional period of 67 years if the copyright-holder renews the copyright.  Here, Paula Petrella, upon learning of the decision in Stewart v. Abend (1990) that held that a copyright-holder’s heirs inherit the right to renew the copyright, met with a Top Los Angeles Lawyer to renew the copyright that she inherited to the 1963 screenplay.  In 1991, Paula Petrella renewed the copyright.  In 1998, she informed MGM that Paula Petrell has a copyright to the 1963 screenplay and that “Raging Bull” infringed on her copyright.  In 2009, Paula Petrella sued MGM for copyright infringement.  The District Court dismissed the suit based on the theory of laches (that Paula Petrella unreasonably delayed her suit) and the Ninth Circuit affirmed its decision.

The Court took this case to determine if the theory of laches should be applied in copyright cases and if this doctrine required that this suit be dismissed.  Laches is a theory of legal equity that holds that if a plaintiff has unreasonably delayed filing a suit, then s/he is barred from pursuing the suit.  Generally, this legal theory applies to causes of action that do not have statute of limitations.  Copyright law is unique in that the law was enacted prior to the creation of a federal statute of limitations for it.  Therefore, courts applied different state statute of limitations and sometimes allowed the theory of laches to be used.  Then in 1957, the Congress created a three-year statute of limitations.  The statute of limitations limited the plaintiff to a recovery of income from the copyrighted material for the past three years.

Here, the Court determined that the doctrine of laches should not be applied to copyright infringement actions that request a relief only for the period within the statute of limitations.  First, the Court focuses on the fact that the doctrine of laches is not supposed to be applied to laws that have a statute of limitations. Next, the Court refutes the arguments that MGM makes in favor of allowing laches to be used to dismiss copyright infringement actions.  MGM claims that a defendant should be able to use the doctrine of laches to dismiss any legal action even if there is a statute of limitations.  The Court rejects this argument because it would sometimes bar a suit even if the lawsuit is filed within the statute of limitations, which would make the judicial branch overrule a decision by Congress to give the plaintiff the whole period of the statute of limitations.  MGM also argues that preventing a defendant from using the theory of laches allows a copyright-holder to sit on his/her claims until the infringer starts making money off of the copyright infringement.  The Court sees no problem with copyright-holders waiting to pursue an infringement suit. Instead it states that requiring copyright-holders to try every minor infringement in order to not lose their claims would lead to hundreds of more cases that are unnecessary because the infringement is minor.  Finally, MGM argues that delaying copyright suits can lead to a loss of evidence that defendants would need to combat liability.  The Court is sympathetic to this concern of MGM’s, but notes that the copyright registration is so complete that there is little need for any evidence other than that from the U.S. Copyright Office.  Therefore, the Court reverses the trial court dismissal of this case and remands it for trial.

The U.S. Supreme Court in Petrella has clarified that the theory of laches is not a complete bar to a suit based on copyright right infringement.  The Court states that three-year statute of limitations limits the plaintiff’s recovery only to the income from the copyrighted material for the past three years. Therefore, Paula Petrella is limited to the income from 2006 until her suit started, but her suit is not barred due to any delay.  Continue to come to LA Jewish Lawyer blog for the latest legal news.  Please call our toll-free number (855) 977-1212 for a FREE CONSULTATION about your legal matter from one of our network of attorneys.

Whistleblowers at the Pleading Stage

There has been a sharp increase in the number of whistleblowers since the beginning of the new millenium.  A whistleblower is a person who releases unauthorized information to a regulator or the public showing that the company or government agency the person works for is doing something wrong.  Prior to 2000, the number of whistleblowers in a decade only exceeded thirteen people in the 1990’s.  Since 2000, there have been over 70 people who have been whistleblowers.  One of the reasons for the increased number of whistleblowers is because of Whistleblower protection laws that have been enacted by both the federal and state governments.  In Webb-Weber v. Community Action for Human Services, the NYCourt of Appeals reviews the Whistle-blower Protection statute and how it protects whistleblowers at the initial stage of their lawsuit.  For a FREE CONSULTATION on how a lawyer from our network can help you, please call Los Angeles Lawyers at (855) 977-1212.

NeY’s Labor Law § 740 (2), known as the “whistleblower statute”, protects people who reveal a violation of “law, regulation or rule” committed by his/her company or agency to a regulator or public agency.  In Webb-Weber, the chief operating officer of a not-for-profit company that provides services for mentally and physically disabled persons informed the Office of Mental Retardation and Developmental Disabilities and the City fire department of several issues that threatened the safety of the residents of the facility.  These included fire safety violations, falsifications of patient prescription and treatment records, mistreatment of residents, as well as deficiencies in patient care and the facility.  In September 2009, she was fired in retaliation for her revelation of the wrongdoing mentioned above, according to Webb-Weber.  

Shortly after she was fired, Wendy Webb-Weber (“plaintiff”) sued Community Action and its CEO David Bond for violating Labor Law § 740 (2) among other claims.  Community Action and Bond (“defendants”) moved immediately dismiss all the claims including the whistleblower claim.  The defendants’ motion to dismiss was predicated upon Webb-Weber’s failure to identify the “law, regulation or rule” that Community Action allegedly violated.  The plaintiff filed a cross-motion to request that she be allowed to amend her complaint.  The Supreme Court granted the plaintiff’s cross-motion.  The Appellate Division of the Supreme Court reversed the NYSupreme Court and dismissed the plaintiff’s whistleblower lawsuit.  The Court of Appeals agreed to hear the case.

The issue that the Court of Appeals decided was whether a plaintiff needs to identify the “law, regulation or rule” that the defendants supposedly violated in her complaint in order to continue with her lawsuit.  The Court of Appeals ruled that she did not have to do so.  The Court said that the statute requires the plaintiff to specify the “activity, policy or practice” that she reported to regulators, but does not require that she identify the statute.  The plaintiff will need to demonstrate the “law, regulation or rule” that was violated in order to recover damages on her lawsuit, but she does not need to identify them in her complaint.  The Court of Appeals reversed the Appellate Division decision and denied the motion to dismiss by Community Action and Bond.

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Legislative Prayer in the 21st Century

The relationship between religion and the government in the United States is a complicated one.  The First Amendment states that “Congress shall make no law respecting an establishment of religion. . .”  Many have interpreted this this to mean that there must be a separation of religion and government in all aspects. Yet there are several instances where religion may intrude on government, such as putting “In God We Trust” on money or prayers before legislative sessions.  On last Monday, the U.S. Supreme Court decided a controversial case involving legislative prayer.  For information about the latest legal developments, please continue to visit our blog. If you have a legal issue, please call our toll-free number (855) 977-1212 for a FREE CONSULTATION.

The Supreme Court issued an opinion in Town of Greece v. Galloway that held that the Town’s practice of inviting local community religious or laypeople to give a Capitol Buildingprayer before their monthly session was constitutional.  The majority opinion said that it was following the precedent from Marsh v. Chambers (1983) where the Supreme Court upheld legislative prayer as it was practiced in the Nebraska legislature.  But both of the dissenting opinions dispute that.  The controversy of the case is illustrated by the fact that the decision was five to four and that five different justices wrote opinions in this case.  One of the few points of agreement between the justices was that this was a “fact-sensitive” case.

In 1999, the Town of Greece replaced the moment of silence prior to their monthly town council meetings with a prayer by a resident religious leader or layperson. The town found these prayer-givers by looking through a Community Guide developed by the Greece Chamber of Commerce for local religious institutions. Town of Greece employees then called the institutions and invited the minister to give a prayer before the Town Council meeting.  Eventually, the Town employees developed a list of those who previously gave prayers and used that list to invite future prayer givers.  The Community Guide only listed Christian churches since these were the only religious institutions that were located in the town limits, except for a Buddhist temple that is in the town limits but has a Rochester address.  Several Jewish temples serve Jewish residents of the Town of Greece, but are located just outside of the city limits.  This set of events led to the prayers before the Town Council meetings of Greece being almost exclusively Christian since 1999.

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From 1999 to 2008, all the speakers who lead a prayer before the Town Council meeting were exclusively Christian.  Moreover, the prayers given by these Christian religious leaders were sectarian in nature rather than being inclusive of other faith traditions.  The Christian prayers before the Town Council would invoke Jesus Christ, the Holy Spirit and the Father and would also otherwise mention Christian themes.  After the plaintiffs in this case complained in 2008, the Town Council had four non-Christian speakers conduct the prayer before the Council meeting.  The Town invited the Chairman of the local Baha’i Congregation on its own initiative and then invited two Jewish laypeople and a Wiccan priestess after they inquired about participating.  Since those four non-Christian prayer-givers, there have been no other non-Christians conducting the prayer before the Town Council meetings. The Town and its employees say that they are open to having people of any faith participate in the prayer-giving and would allow anyone who asked to give a prayer to do so.

The majority opinion by Justice Anthony Kennedy and the two concurrences by Justices Clarence Thomas and Samuel Alito held that the prayer before the Council meeting was constitutional and the town needed to do no more to prevent a First Amendment violation.  Also, the Court held that the invocations did not coerce participation by non-adherents.  The plaintiffs in the suit asked the Court to require that a “nonsectarian” prayer be given.  Therefore, Justice Kennedy first reviewed the role of prayer at legislative sessions throughout U.S. history.  He found, as the Marsh Court found, that there is an unbroken tradition from the First Congress of inviting clergy to give prayers before legislative sessions.  Justice Kennedy also found that while some institutions like Congress request that speakers be aware of different faiths in their audience the history of legislative prayers from the beginning of the country to today is full of sectarian references.  The Court therefore rejected the plaintiffs’ assertion that a legislative prayer must be “nonsectarian” or “inclusive and ecumenical.”

In addition, the plaintiffs argued that the Town must be more diverse in the religion of the speakers at the invocation.  As mentioned above, the Town has had only 4 non-Christian prayer-givers at the invocation before the monthly Town Council meeting.  The plaintiffs felt that this indicated that the legislative prayer before the Town Council meeting impermissibly promoted Christianity in violation of the Constitution’s Establishment Clause.   The Court felt that the Town did not need to do more to promote a more diverse group of speakers.  The majority opinion explained that if the Town were to become more discerning in who are its speakers then it could lead to impermissible actions in order to maintain a religious balancing.  The Court said that requiring the Town to have more diverse speakers could lead to an entanglement that the Establishment Clause was designed to avoid.

Lastly, the Court held that the Town of Greece’s invocation did not force participation by non-adherents. The Court looked at Marsh and saw that in that case the legislative prayer’s audience were the representatives in the legislature. The Court stated in Marsh that the public are not participants, but only observers and that the legislative prayers before Congress or the state legislatures are “an internal act” of the legislature.  Therefore, the Court stated that the non-adherents at the Council meeting could not be forced to participate in the invocation because the invocation is not for the public, but for the members of the Town Council.

This case also had two dissents.  The principal dissent was by Justice Elena Kagan. In her dissent, Justice Kagan disputes several points in the majority opinion, but primarily she attacks the Court’s assertion that the Town needed to do no more to expand diversity of the speakers.  Justice Kagan also attacks the validity of the claim that the invocation is not directed at the public of the Town Council meetings.  

First, Justice Kagan asserts that the Establishment Clause requires the Town to ensure greater diversity in the speakers.  Justice Kagan does not dispute that a local community like the Town of Greece may conduct a legislative prayer, but she holds that the Town’s current practice violates the Establishment Clause.  Justice Kagan finds that the failure to include a greater number of speakers from different faith traditions to be a violation of the Establishment Clause because the Town is impermissibly promoting Christianity.  Moreover, the primarily Christian speakers combined with a target audience that includes the public increases the significance of the violation, according to Justice Kagan.

Justice Kagan disputes the majority’s assertion that the target audience of the invocation prior to the Town Council monthly meeting includes only the Town Council members.  Justice Kagan, unlike the majority, describes how the Town Council meeting invocations proceed.  In her description, Justice Kagan points out that the religious speaker will ask all to pray without telling people they do not have to participate.  In addition, the speaker is facing the public with the members of the Town Council seated behind him/her and that there is likely less than 20 people seated in the publicly available chairs.  Finally, Justice Kagan notes that these Town Council’s have both legislative and adjudicative functions.  

The description Justice Kagan provides in her dissent demonstrates many ways in which the Town Council invocations and the legislative prayers in the Nebraska legislature differ.  The most important though that she notes is that the audience is different.  In Marsh, the religious speaker addressed the members of the legislature and the public were in a gallery one level above the floor and were not allowed to participate in the legislative proceedings.  Here, the religious speaker addresses the public with the members of the Town Council to his/her back and the public are encouraged to participate in both the legislative and the adjudicative functions of the Town Council.  Justice Kagan finds these factual distinctions highly relevant and indicative that the audience of the Town of Greece invocations is actually the public and not the Council members.  In Justice Kagan’s opinion, this completely changes the analysis and therefore further demonstrates that the Town of Greece’s prayers violate the Establishment Clause.

Thus, despite vigorous opposition from the dissents, the Court ruled that the Town of Greece’s legislative prayer did not violate the Establishment Clause.  According to the majority, a legislature will only need to require that the prayer will be solemn and respectful in tone, which is a constraint that will derive from the nature of the proceeding.  For Free Accident Lawyer Consultation please call our toll-free number (855) 977-1212 no cost for you.


Can’t Foreclose Without Loan Documents

While news reports state that the number of foreclosures is falling in 2014, many courts are still dealing with the mortgage crisis that rocked this nation six years ago.  Many sources have told about some of the unprofessional practices of mortgage servicers and owners in the wake of the mortgage crisis when these companies foreclosed on or tried to foreclose on hundreds of thousands of borrowers.  Some of these practices have included such actions as robo-signing or the forging of loan documents.  The reason for those unlawful practices are made clear in recent opinion from the Florida First District Court of Appeal.  Hunter v. Aurora Loan Services, NO. 1D12-6071 (Fla. 1st DCA filed April 25, 2014). Continue to visit our blog for the most recent information about Real Estate law. Please contact us at (855) 977-1212 if you would like to speak with an Experienced Real Estate Lawyer about your legal issue.

In 2007, Lehman Brothers allegedly purchased from MortgageIT a mortgage and promissory note made to Lewis B. Hunter, Jr. On April 3, 2007, Aurora Loan Services, which is a subsidiary of Lehman Brothers and handles their loan services, initiated a foreclosure lawsuit against Mr. Hunter.  Florida is a judicial foreclosure state, which means that a mortgage holder must file a lawsuit in order to foreclose on a borrower who has defaulted on his/her loan.  The major issue in the case was proving that Aurora Loan Services had the right to foreclose because it owned and held the mortgage and the promissory note from MortgageIT.  

At trial, evidence demonstrated that MortgageIT was the original owner of the loan and assigned it to Aurora.  Yet the only document that demonstrated that MortgageIT assigned the mortgage and the note to Aurora or its parent company is a “Corporate Assignment of Mortgage”, executed on June 11, 2007 (two months after Aurora filed for foreclosure) and recorded on January 8, 2008.  A person does not have the right to file for foreclosure unless they own the mortgage and the note.  To demonstrate that they had the right to file for foreclosure on April 3, 2007, Aurora produced two computer-generated documents: an “Account Balance Report”, which stated that Aurora paid in full on 12/20/2006 and a “consolidated notes log”, which indicated that the mortgage and note were sent to Aurora on April 18, 2007.  These documents are hearsay evidence, but Aurora asserted that they were admissible under a hearsay exception for Business Records.  The trial court accepted these documents and what they purported to state.  The trial court found for Aurora and granted them the foreclosure.  Mr. Hunter appealed to Florida’s First District Court of Appeal.

The First District looked at the documents that Aurora produced to prove that they had the right to file for foreclosure to see if they did in fact meet the Business Records exception.  The Business Records exception to the hearsay rule states that a document that is hearsay can be admitted as long as it was made at the time of the event, is normally created in the course of typical business activity and that it is the practice of that business to keep the record.  Furthermore, the document must be made by or with information from a person with knowledge of the event.  In this case, Roger Martin, an employee of Rushmore Loan Management Service and previous employee of Lehman Brothers from 2004-2007, testified as to the authenticity of Aurora’s documents.  Mr. Martin testified that the documents that Aurora produced are those normally kept by mortgage servicers, but he did not have personal knowledge of the information in the documents.  Furthermore, Mr. Martin could not demonstrate that these documents were produced by MortgageIT.  The First District Court of Appeal held that Mr. Martin’s testimony was not sufficient to allow the hearsay records to be admitted into evidence because his testimony could not establish that the documents were produced by MortgageIT or that he had personal knowledge of the documents.  Since the “Account Balance Report” and the “consolidated log notes” were the only documents that showed that Aurora had the right to foreclose, the First District reversed the trial court decision and overturned the foreclosure.

The First District’s decision in this case is one of many cases in the advent of the mortgage crisis in 2008 that shows that mortgage holders are engaged in irregularities.  Therefore, if you are facing foreclosure, make sure that the entity trying to foreclose on you actually owns the mortgage and note. Continue to visit our blog for the most recent information about Real Estate law.  Please contact us at (855) 977-1212 if you would like to speak with an Experienced Real Estate Lawyer about your legal issue.