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The California Court of Appeal, Fourth Appellate District, recently distinguished Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872 ("Jolley"), ruling the defendant bank owed no duty to the borrowers in considering their loan modification request on the basis that Jolley involved a construction loan with ongoing disbursements made throughout the construction period, whereas the present action involved a home mortgage loan, and also, unlike the California UDAP claim in Jolley, the borrowers failed to properly allege "dual tracking" where a bank pursues foreclosure while also engaging in loan modification discussions.
In so ruling, the Court of Appeal held: (1) the borrowers failed to plead fraud with sufficient particularity because the borrowers failed to identify the bank's representative that made the alleged false statement; (2) that the borrowers failed to state a claim under the California UDAP statute because they did not properly an unfair business practice; and (3) the borrowers failed to state a claim for negligent misrepresentation because the bank did not owe a duty.
A copy of the opinion is available at: http://www.courts.ca.gov/opinions/documents/D061449.PDF.
The Plaintiffs and appellants (the "borrowers") financed the purchase of their residence with a promissory note and deed of trust. The borrowers later refinanced the home, and later began loan modification negotiations. In January 2009, the trustee recorded a notice of default and election to sell under the deed of trust. The loan was transferred to the defendant and appellee bank (the "bank") in October 2009, and the borrowers resumed loan modification negotiations with it.
Subsequently, the bank sent the borrowers a letter informing them that preliminary review indicated they may not be eligible for the Home Affordable Modification Program ("HAMP"), but it had been directed to place their mortgage in a "Trial Period Plan." The borrowers and the bank continued to discuss a potential modification. The bank later informed the borrowers by letter it would not adjust the terms of their mortgage.
One of the borrowers allegedly called the bank to reopen the modification process and allegedly spoke with a person in its customer service department. The employee supposedly told the borrower that her loan had been transferred to the foreclosure department, there was no scheduled trustee's sale date, and the modification would be reopened if the borrowers submitted documents showing additional income. At a later date, the borrower was allegedly told she had been preapproved for a loan modification but would need to submit another package.
Several days later, a member of the bank's "home preservation" team allegedly contacted the borrowers. The borrowers supposedly explained that they had more income than what was represented in the bank's letter. Allegedly at the bank's representative's direction, the borrowers submitted additional documents needed to process their request. The bank's representative supposedly told the borrowers their loan modification was "under review." The next day, the bank sold the borrowers' home at a trustee's sale.
The borrowers spoke again with the bank's representative, who informed them their home had been sold at the trustee's sale two days earlier. The borrowers told a bank representative that they never received prior notice that the bank would be selling the home, who responded that notice should have been sent.
Subsequently, the bank offered the borrowers a special forbearance agreement that they could accept by signing and returning the letter with the first of several payments. That agreement required the borrowers to make payments during a trial period, and the bank would review the outstanding amounts for a loan modification. The borrowers were unable to comply with the terms of the forbearance agreement because their home had already been sold. The bank's representative continued to tell the borrowers that their loan modification was under review.
After the trustee's sale, the borrowers sued the bank for fraud, negligent misrepresentation, and "unlawful business practices" under the California Unfair Competition Law ("UCL"). The bank eventually moved for summary judgment, submitting portions of one of the borrower's deposition in which she acknowledged she and her husband stopped making mortgage payments in order to obtain a loan modification, and she understood the loan was in default. She admitted receiving a letter from the bank informing her that if the loan was not cured, the home was subject to a foreclosure sale. She also admitted receiving the notice of trustee's sale.
After the bank filed its summary judgment motion, the borrowers moved for leave to amend the complaint. Specifically, the borrowers sought to include the allegation that one of the borrowers called a bank agent and representative, who told her the loan had recently been transferred from the modification department to the foreclosure department and that there was no trustee sale pending. The borrowers maintained the unidentified representative's statement was reflected in the borrower's deposition, which contained a typographical error on the page where she recounted the conversation.
The court granted the borrowers leave to amend. The amended pleading added an allegation that the borrower called the bank's Customer Service department to re-open the modification process based on additional income that had not been taken into consideration. During that telephone call, the employee supposedly told the borrower that: her loan had been transferred to the foreclosure department; there was no trustee's sale date scheduled for the property; if the borrower submitted additional documents showing additional income that the modification would be re-opened. Thereafter the borrower was told that she had been pre-approved for a loan modification; that she needed to submit another loan modification package and that a loan 'negotiator' would be contacting her shortly.
The borrower alleged those representations were false, and the true facts were that the trustee's sale date for the property had been scheduled to take place and that regardless of whether or not the borrowers submitted additional financial documents, the modification process would not be re-opened and the trustee's sale would proceed as scheduled. The borrowers further alleged that the bank "had no intention of providing [the borrowers] verbal or written notice regarding the date that the trustee's sale of [the borrowers'] house would take place"; they were ignorant of the falsity of the representations, and in reliance on them, they were induced not to take any other action to reinstate their loan or to forestall the foreclosure and protect the substantial amount of equity they had in the property. They alleged they were induced to provide the various loan modification packages, and as a result of their inaction the property was foreclosed upon and sold at the trustee's sale, causing them damage.
The bank again demurred (i.e., moved to dismiss), which the trial court sustained. The trial court concluded that the borrowers failed to plead what misrepresentation was made, other than a misrepresentation by an unidentified employee that was not a part of the foreclosure department and failed to plead that the bank ratified or authorized the statement by the unnamed employee. The court further ruled the borrowers did not plead facts to establish the elements of intent to induce reliance, justifiable reliance, causation or damages. Finally, the court ruled the borrowers did not plead facts to support liability under the UCL.
The borrowers did not timely amend, and the trial court dismissed the second amended complaint with prejudice. Thereafter, the court entered a judgment of dismissal in the bank's favor. The borrowers appealed.
The Court of Appeal classified the borrowers' misrepresentation claims as based on the single telephone conversation occurring in March of 2010. Because these allegations failed to identify the bank employee, they were deficient; they simply lacked the required specifics as to the name of the person at the bank who spoke and his or her authority to speak.
In reaching this conclusion, the Court of Appeal distinguished cases in which courts have found plaintiffs met their fraud pleading burden because the identity of a person or persons making the misrepresentations was a matter uniquely within the defendant's knowledge. (E.g., West v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at p. 793; Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) According to the Court of Appeal, the borrowers provided no information allowing it to conclude that the bank will necessarily have superior knowledge of that person's identity or authority to speak, and therefore, no way for the bank to dispute the claim. Accordingly, the Court of Appeal affirmed the trial court's ruling.
Next the Court of Appeal analyzed the borrowers' UCL claim. As you may recall, a UCL plaintiff must allege that the defendant committed a business act or practice that is fraudulent, unlawful, or unfair. (See Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) The borrowers first addressed their UCL claim in supplemental briefing, contending they have sufficiently alleged that the bank committed a business practice—"dual tracking"—that is unfair. They pointed to Jolley, supra, 213 Cal.App.4th 872, as authority that this business practice supports a cause of action for unfair business practices under the UCL.
The Court of Appeal here decline to follow Jolley. It was not persuaded that the allegations reflected that the bank engaged in dual tracking. The operative pleading alleged that the bank had notified the borrowers that it would not modify their loan. Moreover, the Court of Appeal stated that the pleading was entirely uncertain as to the identity of the person with whom the borrower spoke, and his or her authority to make purported representations concerning the status of the borrowers' loan and alleged preapproval. At the time of the alleged foreclosure, the borrowers were told their loan modification was "under review." These allegations and facts did not show that the bank's process resulted in a " 'foreclosure even when a borrower has been approved for a loan modification.' " (Jolley, supra, 213 Cal.App.4th at p. 904, fn. 20).
Here, the Court of Appeals held that the borrowers' operative complaint failed to state a claim under the unfairness prong of the UCL because they could not allege the bank's alleged dual tracking, when it occurred in 2010, offended a public policy tethered to any underlying constitutional, statutory or regulatory provision. (Durell v. Sharp Healthcare, supra, 183 Cal.App.4th at p. 1366.) Accordingly, the Court of Appeal held that the trial court properly sustained the bank's demurrer to that cause of action without leave to amend.
However, the Court of Appeal reminded that, "as a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as mere lender of money." (Nymark, supra, 231 Cal.App.3d at p. 1096; see also Wagner v. Benson (1980) 101 Cal.App.3d 27, 34-35; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206).
The Court of Appeal concluded that the handling of loan modification negotiations or servicing is a typical lending activity that precluded imposition of a duty of due care.
Accordingly, the Court of Appeal affirmed the trial court's ruling.

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UNITED STATES of America, Plaintiff–Appellee v. Gabriel ANDRES, Defendant–Appellant.
Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges. Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee. Margaret Loraine Schmucker (Court–Appointed), Austin, TX, for Defendant–Appellant.
Defendant—Appellant Gabriel Andres (“Andres”) appeals his conviction and sentence for conspiracy to possess with intent to distribute more than five kilograms of cocaine. Andres contends that the district court erred in denying his motion to suppress evidence and in applying a two-point sentencing enhancement for use of a minor to commit his crime. For the following reasons, we AFFIRM the judgment of the district court.
The factual background is based on testimony presented at the suppression hearing before the district court. In 2009, U.S. Immigration and Customs Enforcement, in conjunction with the Drug Enforcement Administration, was conducting an investigation into the drug trafficking activities of Albert Figueroa Nava (“Figueroa”) in Laredo, Texas, and elsewhere. Agents1 utilized physical surveillance as well as Title III wiretaps, and had already seized several hundred kilograms of cocaine and several million dollars of drug proceeds by December 2009. Based on their surveillance, agents believed that on December 11, 2009, Figueroa and Christino Dominguez (“Dominguez”) loaded approximately twenty kilograms of cocaine into a secret compartment in a red pickup truck and parked the truck on a public street in front of a Holiday Inn in Laredo, with a car carrier trailer attached to it. Agents installed a GPS device on the underside of the truck while it was parked. On December 12, 2009, agents observed Dominguez meeting with Andres near the truck, and Andres subsequently driving the truck away. For various reasons, agents believed the truck would be driven to Chicago. The agents preferred to let the truck leave Laredo without seizing it to avoid jeopardizing the ongoing investigation and to discover who would be receiving it.
The agents ceased physical surveillance of the truck around 10:00 p.m. on December 12, 2009. However, around 4:00 a.m. on December 13, 2009, the GPS system notified agents that the truck had begun to move. Agents contacted the nearby border patrol checkpoint to request that the truck not be searched, and continued to monitor the truck's location by GPS. When it became clear that the truck was heading for Chicago on I–55, agents contacted the Illinois State Police. The agents preferred that the drugs in the truck be discovered in a traffic stop, which would make it unnecessary to reveal the existence of the federal investigation. Agents informed Illinois State Police Sergeant Jamal Simington (“Simington”) that a credible confidential informant (“CI”) would soon be contacting him with information about a vehicle traveling to Chicago, but did not say anything about the Laredo investigation. The CI, assisted by agents, placed a call to Simington and described the truck, explaining that it contained narcotics and was heading for Chicago. The CI called Simington several more times to provide updated information on the truck's location, as revealed by the GPS surveillance.
Brody approached Andres, who was driving the truck, and requested his driver's license, registration, and insurance. Brody returned to his car and ran a check on Andres' license. Brody determined that Andres had a valid license, a clean driving record, and no outstanding warrants, and decided to issue a written warning for the traffic offenses. Brody wrote a warning ticket and returned to the truck to speak with Andres. Brody asked Andres to get out of the truck so that he could talk to Andres about the taillight problem. Andres inspected the electrical connection between the truck and the trailer. Brody told Andres that he would give him a warning ticket and handed him a clipboard to sign the ticket.
While Andres was signing the ticket, Brody asked him where he was coming from. Andres replied that he was coming from Joliet, where he had dropped off a car. However, Brody knew that Simington had spotted the truck south of Joliet, and that Andres would not have had time to stop in Joliet. Brody also observed at this point that Andres began to fidget and move his feet and arms around, which Brody interpreted as nervousness. Brody asked Andres who was in the truck with him. Andres responded that it was his stepdaughter, but he did not know her last name. Brody then patted down Andres, checked inside his jacket for weapons, and went to talk to the passenger, Noemi Gutierrez (“Gutierrez”). She stated that she and Andres had come from Joliet, where they had dropped off a van on Ruby Street.
Brody returned to speak to Andres and asked him if he had any drugs in the truck. Andres denied that he did, and said “go ahead and check.” Brody asked permission to search for drugs with his dog, and Andres consented. The dog alerted to the presence of drugs within about thirty seconds. Officers ultimately found over twenty kilograms of cocaine in a hidden compartment in the truck.
Before the district court, Andres moved to suppress the drug evidence, arguing that Brody did not initially have probable cause to stop the truck and that the duration and scope of the stop were not justified by the alleged traffic offenses. The district court denied this motion in an oral ruling following the suppression hearing. Andres then waived his right to jury trial and consented to a bench trial based on stipulated facts in order to preserve his right to appeal the suppression issue. The district court found Andres guilty of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.
The presentence report recommended a two-level sentencing enhancement pursuant to U.S.S.G. § 3B1.4, “Using a Minor to Commit a Crime,” because Andres and Gutierrez had brought Gutierrez's four-year-old daughter on the drive to Chicago “to make the appearance of a family who was traveling and thus to avoid the detection of the narcotics that were being concealed in the vehicle.” Andres filed an objection to this enhancement. The district court overruled the objection, finding that Andres and Gutierrez brought along Gutierrez's daughter to “giv[e] the impression that this was a family outing.” The district court sentenced Andres to 135 months of imprisonment followed by five years of supervised release. Andres filed a timely notice of appeal.
Andres argues that the drug evidence should be suppressed because it was obtained through an unreasonable search that violated the Fourth Amendment. He argues that the initial traffic stop by Brody was not justified because it was “based on pretext rather than any actual offense.” He further argues that even if the stop was initially justified, Brody's continued questioning and dog search were not reasonably related to the circumstances warranting the stop. Finally, he argues that the warrantless use of a GPS device to track his movements for several days constitutes an unreasonable search or seizure.
“In reviewing a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo.” United States v. Lopez–Moreno, 420 F.3d 420, 429 (5th Cir.2005) (citation omitted). “In reviewing findings of fact, we view the evidence in the light most favorable to the party prevailing below, which in this case is the Government.” Id. (citation omitted).
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. This protection extends to vehicle stops and temporary detainment of a vehicle's occupants. United States v. Shabazz, 993 F.2d 431, 434 (5th Cir.1993). We analyze the constitutionality of a traffic stop using the two-step inquiry set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Macias, 658 F.3d 509, 517 (5th Cir.2011). First we determine whether the stop was justified at its inception. Id. If the initial stop was justified, we determine “whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.” Id.
“For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle.” Lopez–Moreno, 420 F.3d at 430. Brody testified that he stopped Andres because the taillights on the truck's trailer were flickering and because the truck and trailer were swaying back and forth within the lane. Andres does not contend that improper lighting and improper lane usage are not in fact traffic violations; rather, he argues that, contrary to Brody's testimony, he did not commit these violations. Andres points out that the video evidence, which begins when Andres is already pulled over and shows him driving slowly from the shoulder of the freeway onto a ramp, reveals no lighting problems or swerving. However, this does not establish that the swerving and lighting problems were not present prior to the stop, when Andres was traveling at highway speed. The district court credited Brody's testimony concerning the traffic violations, and the video and other evidence does not show that this factual finding was clearly erroneous. Accordingly, the stop was justified at its inception based on observed traffic violations.
A traffic stop “must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.” United States v. Brigham, 382 F.3d 500, 507 (5th Cir.2004) (en banc). “If the officer develops reasonable suspicion of additional criminal activity during his investigation of the circumstances that originally caused the stop, he may further detain [the] occupants [of the vehicle] for a reasonable time while appropriately attempting to dispel this reasonable suspicion.” United States v. Pack, 612 F.3d 341, 350 (5th Cir.2010).
Andres argues that his “detention impermissibly exceeded its original scope when Sergeant Brody detained him longer than necessary to issue a written warning and then questioned him about matters wholly unrelated to the purpose of a routine traffic stop.” This court has emphasized that police questioning, even about matters unrelated to a traffic stop, does not violate the Fourth Amendment absent some nonconsensual restraint on one's liberty. Brigham, 382 F.3d at 508. Accordingly, the question is only whether Andres was detained for longer than necessary to deal with the initial traffic violations, and if so, whether additional reasonable suspicion of wrongdoing developed during the time that Brody was legitimately addressing the traffic violations. The government understandably does not contend that the entire stop, including the continued interrogation of Andres and his passenger and the dog search, was justified by the initial traffic violations. Rather, the government argues that Andres' untruthful answers and nervousness, the anonymous tip stating that the truck was carrying drugs, and other factors created additional reasonable suspicion justifying the continued detention.
Andres contends that after Brody checked his driving and criminal records and wrote a warning ticket, Brody should have immediately obtained his signature on the ticket and let him go. Instead, Brody asked Andres to walk to the back of the trailer to look at the lights that were previously flickering and the wiring that might have been loose. After briefly discussing the lights and wiring, Brody handed Andres the warning ticket to sign and immediately asked him where he was coming from. Andres responded that he had come from Joliet. However, Brody knew that Simington had spotted Andres coming from south of Joliet, and that given the amount of time that had passed since Simington spotted Andres, Andres would not have had time to make a stop in Joliet. The government argues that this initial question, which revealed to Brody that Andres was lying and thereby created further suspicion, took place while Andres was signing the warning ticket and did not extend the duration of the stop. The district court found that the initial question and answer occurred “as the legitimate stop [was] still in progress,” and that Andres' further responses and nervousness created additional suspicion. The district court concluded that these facts provided Brody with a legitimate basis to continue the stop.
We do not find it unreasonable that an officer who has stopped a driver based on code violations and safety concerns involving a trailer would ask the driver to exit the vehicle to look at the trailer and discuss the problems. Furthermore, we agree that Brody's question asking where Andres was driving from occurred before Brody had finished dealing with the traffic offenses and did not extend the scope or duration of the stop. Andres' untruthful answer created further suspicion justifying continued detention, and his subsequent answers created even further suspicion. Based on this reasonable suspicion, Brody continued to investigate, ultimately requesting and receiving permission to search the truck. Because Brody's continued search and seizure beyond the scope of the initial traffic stop were justified by additional reasonable suspicion, the district court did not err in concluding that the scope of the stop was reasonable.
In United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012), the Supreme Court held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ ” Although Jones did not reach the issue of whether warrantless GPS searches are unreasonable, “[w]arrantless searches are per se unreasonable under the Fourth Amendment, subject to a few specific exceptions.” United States v. Mata, 517 F.3d 279, 284 (5th Cir.2008) (citing Coolidge v. New Hampshire, 403 U.S. 443, 474–75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Andres argues that the warrantless placement and use of the GPS device to monitor the truck he was driving violated the Fourth Amendment. Andres further argues that because this illegal GPS search directly led to the discovery of the drugs in his truck, the drugs must be suppressed under the “fruit of the poisonous tree” doctrine. See, e.g., United States v. Hernandez, 670 F.3d 616, 620 (5th Cir.2012).
Because Andres did not argue before the district court that the GPS search was unconstitutional, we review his argument only for plain error. See United States v. Baker, 538 F.3d 324, 328–29 (5th Cir.2008). To demonstrate plain error, an appellant must show an error that is clear or obvious and that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If the appellant makes such a showing, this court has the discretion to remedy the error, but should do so only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. “[W]here the law is unsettled at the time of trial but settled by the time of appeal, the ‘plainness' of the error should be judged by the law at the time of appeal.” United States v. Escalante–Reyes, 689 F.3d 415, 423 (5th Cir.2012) (en banc).
We need not decide whether warrantless GPS searches are per se unreasonable. Furthermore, we need not decide whether the agents in this case acted without a warrant or whether the drug evidence is derived from the GPS search. Even assuming that a Fourth Amendment violation occurred and that suppression would otherwise be appropriate, the evidence should not be suppressed in this case because the officers acted in reasonable reliance on circuit precedent.
“[S]earches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2423–24, 180 L.Ed.2d 285 (2011). In December 2009, it was objectively reasonable for agents operating within the Fifth Circuit to believe that warrantless GPS tracking was permissible under circuit precedent. In United States v. Michael, 645 F.2d 252, 257 (5th Cir.1981) (en banc), this court held that “reasonable suspicion is adequate to support warrantless beeper installation” on a suspect's vehicle parked in a public place. Although the precise technological capabilities of the beeper were not explained in the opinion, the court described it as an “electronic tracking device.” Id. at 254. The dissent was concerned that the beeper would “enable[ ] [police] to maintain continuous electronic surveillance over [a person's] movements twenty-four hours per day continuously and indefinitely.” Id. at 260 (Tate, J., dissenting). Despite any possible technological differences between a 1981 “beeper” and the GPS device used in this case, the functionality is sufficiently similar that the agents' reliance on Michael to install a GPS device on the truck, in light of the reasonable suspicion of drug trafficking, was objectively reasonable. Because we find that the district court did not err in refusing to suppress the drug evidence, we do not reach the remaining plain error factors.
“We review the district court's factual findings for clear error and its interpretation and application of the Guidelines de novo.” United States v. Molina, 469 F.3d 408, 413 (5th Cir.2006) (quotation and citation omitted). The district court concluded that the § 3B1.4 enhancement was justified because Andres and Gutierrez brought Gutierrez's daughter on the drive to avoid suspicion by appearing to be on a “family outing.” Andres does not appear to challenge any factual finding by the district court; rather, he argues that because Gutierrez's daughter was “already in the vehicle” when he received it, he did not take any affirmative action to involve her in the offense. As Andres notes, the mere presence of a minor at the scene of a crime is insufficient to support an enhancement based on § 3B1.4; a defendant must “take some affirmative action to involve the minor in the offense.” United States v. Mata, 624 F.3d 170, 176 (5th Cir.2010). Even assuming that Gutierrez's daughter was already in the truck when Andres received it, the district court did not err in concluding that Andres' choosing to drive a truck containing over twenty kilograms of cocaine and a four-year-old girl from Laredo to Chicago constitutes an “affirmative act” involving a minor in the offense. Accordingly, the district court did not err in applying the § 3B1.4 enhancement.

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The article is prepared for practical traumatologists. Three main conditions required for the natural process of bone healing with the forming of periosteal bone regenerate are identified and substantiated by the authors. They are following: the presence of intact area with periosteum and muscle that were peeled off the fragments; the forming of fibrin-blood clot near the fragments; the presence of internal intention of fibrin-cell blastema on the stage of proliferation and differentiation of mesenchyme cells. These conditions should be taken into consideration while choosing the methods of reduction of tibia fragments, method of their fixation and regimen of functional activity of injured extremity. Moreover, before choosing the fixation method the grade of fragments fixity in periosteum-muscle envelope should be analyzed. The author proposed the classification of fixity, based on the severity of initial displacement according to radiographic findings: I grade — initial displacement of tibia fragments does not exceed 1/3 of its cross-section; II grade - initial displacement of fragments exceeds 1/3 of its cross-section, but does not exceed the bounds of cross-section, fibula is damaged approximately on the same level, periosteum-muscle envelope is damaged on ½ approximately; III grade – displacement of tibia and fibula exceed their cross-section with shortening, severe damage of periosteum and muscles. The techniques of functional treatment of acute fractures using plaster bandage and original external fixator are described in details.
Borovik I. N. Internal tensions and movements in the biomechanical construction “femur fragments – apparatus of external fixation” under loadindand their influence on the shape of bone callous. / I. N.Borovik, А. К.Popsuishapka // Annals of traumatology and orthopaedics. — 2009. — № 1–2. — P. 29–32.
Litvishko V. A. Internal tensions in the construction “fracture fragments- apparatus of external fixation” and “bone fragments- bone plate” at the treatment of diaphyseal fractures. Why does construction loose? / V. А. Litvishko, А. К. Popsuishapka, I. N.Borovik // Trauma. — 2012. — V. 13, № 1. — P. 120–123.
Oksimets V.. М. Cell-tissue technologies at the treatment of bone regeneration process infringement and bone tissue defect: theoretical justification and possibilities of its clinical application (experimental – clinical study): manuscript of doctor of medical sciences: 14.01.21 / V. М. Oksimets. — Donetsk, 2014. — 338 p.
Perculiarities of fibrin- blood clot formation, its structure mechanical properties and its importance for bone regeneration after fracture. / А. К. Popsuishapka, V. А. Litvishko, N. А. Ashukina, Z. N. Danischuk // Orthopaedics, Traumatology and Prosthetics. — 2013. — № 4. — P. 5–12, doi: http://dx.doi.org/10.15674/0030-5987201345-12.
Popsuishapka А. К. The role of fibrin clot and its mechanical tensions in the process of primary formation of bone callous after fracture. / А. К. Popsuishapka, V. А. Litvishko, N. А. Ashukina, О. А. Podgaiskaya // Orthopaedics, Traumatology and Prosthetics. — 2010. — № 3. — P. 22–27, doi: http://dx.doi.org/10.15674/0030-59872010322-27.
Popsuishapka А. К. Functional treatment of diaphyseal fractures (clinical and experimental justification): manuscript of doctor of medical sciences: 14.00.22 / А. К. Popsuishapka. — Kharkov, 1991. — 271 p.
Popsuishapka А. К. The frequency of nonunions at isolated diaphyseal fractures. / А. К. Popsuishapka, О. Е. Uzhigova, V. А. Litvishko // Orthopaedics, Traumatology and Prosthetics. — 2013. — № 1. — P. 39–43, doi: http://dx.doi.org/10.15674/0030-59872013139-43.
Popsuishapka О. К. Clinical and morphological stages of bone fragments union after fracture. / A. К. Popsuishapka, V. А. Litvishko, N. А. Ashukina / Orthopaedics, Traumatology and Prosthetics. — 2015. — № 1. — P. 12–20, doi: http://dx.doi.org/10.15674/0030-59872015112-20.
The certificate about the state registration № 10276/211 «Rod devices for bone fragments union at the treatment of extremities fractures » ТE.U 33.1-35700506-001:2011. According to the order of State Medical Inspection, Ministry of Health Protection of Ukraine 15.03.2011 р.
Digital resource. — Access: http://www.studfiles.ru/preview/1658825/page:4/.

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Rielly, Robin L. Kamikazes, Corsairs, and Picket Ships. Okinawa, 1945. Photo available. Philadelphia. Casemate. 2008. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Ries, Karl. The Luftwaffe. A Photographic Record. 1919-1945. Blue Ridge. Aero. 1987. 4to. Hard cover. First edition. Illustrated. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Rings, Werner. Life with the Enemy. Collaboration and Resistance in Hitler's Europe. 1939-1945. Garden City. Doubleday. 1982. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Risjord, Norman. Thomas Jefferson. Madison. Madison House. 1994. Octavo. Hard cover. First edition. Illustrated. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Robbins, Charles. Last of His Kind. An Informal Portrait of Harry S. Truman. New York. William Morrow. 1979. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Robert, E. Lee. Recollections and Letters of General Robert E. Lee. New York. Smithmark. 1995. Octavo. Hard cover. First edition thus. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Roberts, Cokie. Founding Mothers. The Women Who Raised Our Nation. New York. William Morrow. 2004. Octavo. Hard cover. First edition. Fine copy in fine dust jacket (in mylar).
Roberts, Wess. Leadership Secrets of Attila the Hun. New York. Warner. 1987. Octavo. Hard cover. Fine copy (owner blind stamp) in fine dust jacket (in mylar).

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(1) Except as provided in subsections (2) and (3) of this section, performance audits done under the terms of the Legislative Performance Audit Act shall be conducted in accordance with the generally accepted government auditing standards for performance audits contained in the Government Auditing Standards (2011 Revision), published by the Comptroller General of the United States, Government Accountability Office.
(2) Standards requiring continuing education for employees of the office shall be met as practicable based on the availability of training funds.
(3) The frequency of the required external quality control review shall be determined by the committee.
(4) At the beginning of each biennial legislative session, the Legislative Auditor shall create a plan for meeting such standards and provide the plan to the chairperson of the Legislative Performance Audit Committee.
Source:Laws 2003, LB 607, § 8; Laws 2004, LB 1118, § 2; Laws 2006, LB 588, § 4; Laws 2008, LB822, § 2; Laws 2013, LB40, § 2; Laws 2017, LB210, § 1.

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Contracts related to real estate transactions often have arbitration provisions included, requiring the parties to submit their disputes to an arbitrator rather than the court. Some standard forms, such as the CAR forms, have optional arbitration provisions that apply if accepted by all parties. Commercial Brokerages often require binding arbitration in the representation agreements. The argument for arbitration is that it is faster and cheaper. This may be true in low-dollar transactions, but otherwise, I believe it is a myth. Also, arbitrator decisions are not appealable, even if erroneous. I’ve written before about alternatives to arbitration, namely judicial reference and general reference, which allow hearings by a referee and oversight by the court. However, in a recent decision, a contract required binding arbitration under AAA rules (with a panel of 3 arbitrators) and the large brokerage was well on its way to bankrupting the plaintiff due to the cost of the proceeding. The court rescued the plaintiff, finding that if they could not afford the arbitration, the matter could be heard by the court.
In Weiler v. Marcus & Millichap Real Estate Investment Services Inc., the plaintiffs hired Marcus & Millichap to advise them regarding a 1031 exchange of their Las Vegas Properties for a commercial property in Texas with a Red Robin restaurant, supposedly worth $4.1 million. They claim that M&M represented that this was a solid income producing property, and that the tenant was required to pay the property taxes. Shortly after the deal closed the tenant became delinquent in rent and property taxes. The plaintiffs lost money and eventually sold the property for $2.1 million less than they had paid.
The plaintiffs filed suit, but their contract with M&M required binding arbitration through the American Arbitration Association (AAA). M&M had the court order the case to arbitration. The court retained jurisdiction for monitoring the arbitration.
Judicial reference, unlike arbitration, works within the court system. A lawsuit is filed, and the judge appoints a referee to assist in the case, or decide it on their own. Parties can agree, in their contracts, that disputes are to be determined by a general judicial reference. This means the entire dispute is to be resolved by a referee. An advantage of judicial reference over other forms of dispute resolution (read ‘binding arbitration’) is that a referee’s decision is treated like a judge’s decision for purposes of appeal. On the other hand, an arbitrator’s decision cannot be appealed for errors of fact or law, as I have railed about several times in this blog. But as some parties found out in a 2011 decision, a judicial reference provision is not a guaranty that the dispute will be decided by a referee, and parties interested in reference should consult with a Sacramento business and real estate attorney as to what is possible. In this case the California Supreme Court concluded that a judge could decline to appoint a referee if there is a possibility of conflicting rulings on a common issue of law or fact.
In Tarrant Bell Property, LLC v. The Superior Court, 120 residents of a mobile home park in Alameda County sued the park owners complaining that they had not maintained the common areas of the park and subjected residents to substandard living conditions. Of those residents, 100 residents’ leases had a provision that provided that disputes were to be resolved, first, by arbitration, or should the arbitration provision be found to be unenforceable, by general judicial reference. Key here is that the remaining 20 residents, 17% of the total, had leases that did not require arbitration and reference.
The plaintiffs asked the judge to order arbitration or reference, the park owners opposed either. The trail court judge refused to order arbitration or reference. The opinion does not describe why the court denied arbitration, but focuses instead on denial of reference.
Parties can provide in their contracts that any dispute be resolved by “general reference.” A general reference directs a referee to try all issues in the action. The hearing is conducted under the rules of evidence applicable to judicial proceedings. In a general reference, the referee prepares a statement of decision that stands as the decision of the court and is reviewable as if the court had rendered it. This results in a trial by a referee and not by a court or jury. “Judicial reference,” on the other hand, differs in that in that it involves sending a pending trial court action to a referee for hearing, determination and a report back to the court. The BIG DIFFERENCE between reference and arbitration is that a judgment obtained by reference can be appealed, but an arbitrator’s may not be appealed, regardless of how flawed it is. Sacramento real estate and business attorneys know that all the CAR forms have arbitration provisions, which are usually initialed by the parties without truly understanding them. I have railed before about how arbitrators are not held accountable for erroneous rulings.
The general referee’s statement of decision “stands as the decision of the court,” and once the statement of decision is final and filed by the referee, judgment must be entered thereon “in the same manner as if the action had been tried by the court.” After judgment is entered, the losing party may make post-trial motions for a new trial, and/or to vacate the judgment. The judgment entered on the general referee’s statement of decision may be appealed like any other judgment.
In a recent decision the court enforced a general reference provision that did not include an explicit waiver of a jury trial. In O’Donoghue v. Superior Court (Performing Arts LLC), a developer obtained a $20 million dollar construction loan for condos at 973 Market Street in San Francisco. Several individuals signed personal guarantees for the loan; the guaranty instrument had a general reference provision. Default occurred, a lawsuit filed, and the court enforced the reference, appointing a referee. The reference provision did not include a jury waiver; the guarantors appealed.
California Construction Contracts and Arbitration – When the Issue is whether the contractor was unlicensed, Courts Can Throw Away the Arbitrator’s Decision.
I have written several times about the finality of Arbitration decisions, and haw they cannot be overturned even if the Arbitrator did not follow the law, or ignored the facts. Also discussed here has been the plight of the unlicensed contractor, and how he is not entitled to be paid, and has the give the money back, no matter how much work he did or how much he spent on the project. In both cases, parties should be sure to understand their situation, and may want to consult with a Sacramento and Yolo real estate and construction attorney. Both issues came together recently in a case were the arbitrator did not require the unlicensed contractor to disgorge his compensation. The court said the Arbitration Award was invalid.
In Mouris Ahdout v. Majid Hekmatjah et.al., A Family Limited Partnership and Braum were the sole members and owners of a LLC. They formed the LLC to develop and sell a condominium project on property the had owned. The LLC Operating Agreement specified that the LLC would enter an agreement with BIDI (Braum Investment & Development, Inc.), general contractor, to execute contracts and purchase orders to develop the project. Braum, member of the LLC, owned BIDI. Braum was also designated the manager of the LLC. BIDI did not have a Class B Contractor’s License, required under California law to build a commercial building.
The LLC operating agreement also said that BIDI was not to get any fees for acting as general contractor. However, the profit-sharing allocations under the Operating Agreement gave Braum an additional 25 percent allocation, so BIDI was actually getting paid for acting as general contractor.
Most California residential real estate contracts (such as the C.A.R. form) have an arbitration provision providing for optional binding arbitration. If the parties all initial it, it becomes a requirement of contract. In arbitration the parties agree to have a supposedly unbiased third person decide the dispute. Arbitrator’s errors and mistakes cannot be reviewed by a court, so the parties are stuck with it. In a recent decision concerning beach front property in Venice, California, a judge refused to force the buyer to arbitrate their claim.
In Lindemann v. Hume, Lee was building a $3 million dollar residence and a trust was the buyer. The trust’s beneficiary, actor Nicholas Cage, moved into the house, and immediately had problems with water intrusion and flooding. Cage told his agent to sell the place. The got an offer, and gave the buyer a disclosure stating that there was a problem with the drainage that the builder was addressing. Cage’s people hired an engineer, who reported that there was no quick fix , and any owner would need to accept the risk associated with the drainage. The buyers backed out.
A California court recently ruled that a Developer of a condominium project, who was sued for construction defects by the homeowner’s association, could not force the association into arbitration. Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc. Cal . Court of Appeal, Second District, No. B225086. This line of decisions may result in experienced Yolo and Sacramento Real Estate lawyers to advise developer clients to hold on to at least one unit in their projects.
In this case the CC&R’s (Covenants Conditions and Restrictions) contained a mandatory arbitration provision between the developers and the association or unit owners be submitted to binding arbitration. In any common interest development, the developer prepares the original CC&Rs, and usually requires arbitration. As is usually the case, here the developer’s goal was to sell the units. It had sold them all, and no longer owned an interest in the development. Eventually the Homeowners Association filed this lawsuit for construction defects related to the roofs, stucco, and many other problems.
The arbitration provision in the CC&Rs stated that it was governed by the Federal Arbitration Act, which covers contracts. The FAA was selected because it makes arbitration provisions irrevocable, and drastically limits the court’s ability to fix errors of the arbitrator.
A condominium developer in Southern California got sued by the Association for construction defects. The developer filed a motion to compel arbitration under the provisions of the CC&Rs. The court said no!
Recorded CC&Rs are made binding in disputes between owners, or owners and the association, because of their shared interest in the common interest development. CC&Rs are equitable servitudes which bind the owners and association. CC&Rs are not a contract between the developer and the owners association. There was no opportunity for “actual notice and meaningful reflection.” The association springs into existence on the sale of the first lot of the project. Maybe there is an argument that there is a meeting of the minds between the developer & the first buyer; but the rest of the buyer have no choice but to accept the CC&Rs.
So rarely do we see courts refuse to enforce unbargained for arbitration provisions (such as here) that it is an event worth celebrating.
Buyers bought a home in Southern California using the standard CAR purchase agreement, in which they initialed the requirement to arbitrate any disputes. Before they moved into the home, they learned it had extensive structural damage which was not disclosed. The buyers sued their broker, claiming that they knew about the damage. The brokers moved the lawsuit to arbitration, as the purchase Contract allowed them to do- big mistake for the broker.
The Arbitrator awarded the Buyer damages based on the benefit of the bargain” measure, which is applicable to damages not arising from a contract. The Brokers sought to set aside the award, claiming he should have used the “out of pocket” measure of damages (Civil Code 3343).
The Broker argued that the Arbitration provision requires the arbitrator to render an award in accordance with California substantive law; thus, this departs from the general rule of non-reviewability of arbitration awards. However, the court disagreed. Citing DirectTV, a provision requiring arbitrators to apply the law leaves open the possibility that they may apply it incorrectly.

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