Recovery of Copyright to Music Taken Down by a Digital Millennium Copyright Act (“DMCA”) Claim
Jan 06, 2025
OUTCOME: Taken Down Song Recovered
An online digital music website took down a piece of music published through the platform by a young blossoming musician.
The company alleged that certain material displayed on the musician's profil...e page infringed a third party's intellectual property rights. The platform threatened to terminate the musician's account if the piece of music was redisplayed. However, the musician claimed he created the piece of music on his own and without taking anyone else's work.
The attorney interviewed the musician to document and articulate how the musician created the music and knew or believed that no work from another person was used or misused. From that interview, the attorney wrote a demand letter asking the platform to restore the song to the musician's account, including the supporting documents as evidence.
Several days later and in response to the demand letter, the platform agreed to restore the song to the musician's account, thanking the musician for providing the supporting documents, and encouraging him to reach out if that or another song was flagged by the platform's moderation system.
General practice
What a Generalist Can Do: Contempt Defense of Insolvent Elderly Probate Judgment Debtor Entitled to Life Income Trust Benefit
Dec 17, 2024
OUTCOME: $350,000: Global Settlement and Mutual Release Agreement
An elderly spouse of a trust maker of a trust became a judgment debtor to the trust's successor trustee ("trustee") for over $230,000. After the elder received a separate inheritance, the court supervi...sing the Trust's administration orderepd the elder to turn over funds to help satisfy the judgment. However, after the funds were not turned over as ordered, the successor trustee had the elder charged with contempt threatening fines and jail time.
Two days later, the elder's spouse died. Under terms of the deceased spouse's trust, the elder became a trust beneficiary entitled to a net income life estate in all the deceased spouse's trust assets. The average net income of the trust's assets ranged from over $10,500 - $15,000 per month. However, because of the prior judgment against the elder, and because of questions about whether trust expenses for lawsuits against the elder related to the judgment and contempt charge, repairs and improvements needed to trust property to preserve and grow rental income from the trust's primary assets of commercial real estate, and duties to treat the interests of the elder and the other trust beneficiaries equally, the trustee did not make any distributions to the octagenarian elder.
The elder's circumstances had become dire. Crises in housing, bill-paying, health, and contempt investigations aggravated the elder's grieving of losing a loving spouse and declining of the elder's standard of living. Worsening matters further, the elder's attorney for post-judgment proceedings, other lawsuits for and against the elder related to the trust and parties to the trust, and the contempt charged against the elder, identified a conflict of interest leading to a petition to withdraw.
In the midst of withdrawal proceedings, and after no other defense counsel could be found, the court had AJ Gallivan appointed extraordinarily as new counsel, only to handle the nearly completed contempt proceedings.
Intake and triage indicated that the client elder's primary goal, besides defending against the contempt charge, was to endure and overcome the resulting insolvency and crises threatening the elder's health and housing.
Counsel discovered that a reasonable question existed as to whether the contempt charge should be treated as a civil contempt matter, rather than as criminal contempt as a review of the case file suggested. After performing significant factual and legal research, counsel advised that the elder could file for Chapter 7 bankruptcy as a strategy to stay enforcement of the judgment as well as the contempt proceedings. Furthermore, in filing bankruptcy relief, perhaps the elder could persuade the bankruptcy trustee to assist with recovery of the elder's net income life estate benefit from the trust, not only to benefit creditors of the bankruptcy estate, but also to provide for the surviving spouse elder's needs for life as the deceased spouse had intended.
The elder client agreed to file for bankruptcy relief and the attorney agreed to represent the elder for the bankruptcy with a separate agreement. The strategy successfully disincentivized the trustee judgment creditor from further pursuing the contempt charge. Perhaps the adversary wanted to avoid risks of violating bankruptcy's automatic stay that funneled into the bankruptcy case any debt recovery efforts and enforcement and other pending civil litigation regarding the elder. The contempt proceedings were dismissed, and the attorney's appointment ended. The bankruptcy trustee fortunately agreed to assist with recovering the elder's life income benefit. The strategy also persuaded all parties adverse to the elder to enter into mediation for a global settlement.
Parties were in mediation and post-mediation negotiations for over three months. Parties ultimately executed a Global Settlement and Mutual Release Agreement ("Agreement") dismissing seven probate and family law cases with one also on appeal. The probate court and bankruptcy court subsequently approved the Agreement.
Landlord or tenant
Interpleader Achieves Settlement for Residential Tenant v. Entity Landlord
Dec 03, 2024
OUTCOME: $60,000: Mediated Settlement Agreement and Release
Plaintiff tenant and leaseholder asserted contract and property rights to possess an entity landlord's residence. Client filed to interplead rents by depositing rent money with the court clerk--due to ...uncertainty about which individuals or entities owned the entity landlord named in the lease and had authoritiy to negotiate or terminate the lease. The interpleader strategy compelled the primary entities and individuals in question to mediate and settle the dispute.
Trusts
Successful Heggstad Petition to Authorize Closing the Sale of Home on Native American Land Held by Bureau of Indian Affairs
Aug 01, 2024
OUTCOME: Petition Granted; Sale of Real Estate Preserved
Successor trustees of a revocable living trust ("Trust") entered into a real estate sales contract with a buyer for a house owned by the deceased trust maker ("Trustor"). While in escrow, it was discov...ered that the house was on land titled to the Bureau of Indian Affairs ("BIA") and held in trust for and located on land reserved for a native american tribe.
While the Trustor had previously attempted to record the transfer of the house into the Trust; however, the transaction was considered unauthorized by the tribe as it was made without the consent or approval of BIA. Therefore, title to the sold house was unmarketable, threatening to prevent closing on the sale. Furthermore, BIA approval and tribe authorization to sell the house required a court order declaring that the house belonged to the Trust.
To attain the court order, the trustees engaged to file a Probate Code § 850 petition (AKA "Heggstad Petition"), asking the probate court to declare that the house belonged to the Trust.
The Heggstad Petition was filed promptly after investigating with tribal and Bureau agency staff on how they need the petition and proposed order to read in order to facilitate the tribal and federal approvals.
Once the court entered its order granting the petition, the trustees were able to assure the buyer that the required approvals and authorizations would go through in a reasonable time to make title marketable, and with the buyer agreeing on a reasonable extension of closing.
Thankfully, the sale was preserved.
The EDD rejected individual's request for Family/Medical Leave Determination due to insufficient documentation.
Individual hired attorney to appeal for a redetermination by pinpointing the document...ation needed, articulating to EDD that the documentation matched what was needed to make a favorable redetermination, and ensured that the appeal was submiteed completely, accurately, and timely.
Contracts and agreements
Refund for Impossible Contract Performance
Jun 08, 2023
OUTCOME: $6,720 refunded on demand, including attorney fees demanded
Client individual contracted with an entity for services to assist Client's elderly spouse with applying for state benefits. After Client had paid in full for the services, Client's spouse unfortunatel...y predeceased the entity's completion and submission of the application. Contract law excused performance as impossible notwithstanding the Contract's contrary terms. Client hired attorney to demand a refund of monies paid, minus a nonrefundable administrative fee, and plus attorney's fee for intervening with a demand letter to entity
