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This article, by State & Local Tax Practice Group partner Timothy P. Noonan, was originally published in the October 22, 2007 State Tax Notes. Reprinted with permission.
Litigating tax cases and handling audits usually are the more exciting aspects of practice for the state and local tax (SALT) practitioner. But an important and often overlooked aspect of tax practice involves tax compliance. Obviously, when there is an audit or ongoing litigation, there is a clear problem to solve and particular ways to go about solving it. But what happens when there are no audits? What if there are lingering issues in one or several states that historically have been just swept under the carpet?
The seasoned state and local tax practitioner has to know not only how to litigate a tax case, but how to manage individual and multistate tax compliance issues, which are often just as important, even if not always as exciting. Few taxpayers fail to appreciate the complexity of tax compliance in each of those states and the thousands of localities within them that also impose various types of taxes. The taxpayers that don't deal with the complexity usually run away screaming or just stick their heads in the sand.
But now that state tax departments are becoming smarter and more aggressive, many of those companies are starting to reexamine their state tax compliance, or the lack thereof, and are looking for ways to identify and resolve multistate issues. Before discussing different practical methods and strategies that often can be used, however, it's important to first lay the groundwork, discussing the most important legal issue often involved with multistate tax compliance, that of nexus.
Usually helping to identify a company's potential multistate tax issues starts with questions about nexus. Obviously, not every corporation that engages in business activities in the United States is subject to every state's tax jurisdiction. A state's ability to impose its tax obligations on an out-of-state corporation -- whether those obligations be for corporate, sales, franchise, or other taxes -- is limited by the U.S. Constitution and may be further limited by federal and state laws. The nature and frequency of contacts that an out-of-state corporation must establish in a state before the corporation may be subject to that state's taxing jurisdiction generally is referred to as nexus. Literally, the term "nexus" means connection. For state tax purposes, the term nexus is used to indicate that the connection between an out-of-state corporation and the taxing state is sufficient to allow the state to impose tax collection responsibilities over that corporation.
Where does it come from? The principal provision that limits states' jurisdictional powers to impose tax responsibilities on an out-of-state corporation is the commerce clause of the U.S. Constitution. The commerce clause provides: "Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."1 Though phrased as a grant of regulatory power to Congress, the clause has long been seen as a limitation on state regulatory powers, as well.2 That interpretation denies states the power to unjustifiably discriminate against or burden the interstate flow of articles of commerce. In Complete Auto Transit v. Brady, 430 U.S. 274 (1977), the Supreme Court enunciated the modern four-prong commerce clause test that is used to determine whether a state tax is constitutional. The first prong of this test requires that a state tax must be applied to an activity that has a substantial nexus with the taxing state.
Nexus issues come up both in the sales tax and income tax contexts, and generally the rules are similar. In the sales tax area, liability tax collection is premised on nexus. As most practitioners know, the U.S. Supreme Court's decision in Quill set the bright-line test in reaffirming that the commerce clause prohibits a state from imposing sales or use tax compliance responsibilities on an out-of-state corporation if that corporation has no physical presence within the taxing state.3 New York's Court of Appeals also has indicated that while physical presence is required, it need not be more than the "slightest presence."4 Similarly, other Supreme Court cases indicate that the type of physical presence necessary to create sales tax nexus may be as slight as a temporary presence in the state of the corporation's property or personnel, and that any contact with the taxing state beyond the mails or common carrier may give rise to sufficient nexus. In Felt and Tarrant Co. v. Gallagher, 306 U.S. 62 (1939), two soliciting sales agents and a rental office in the state created sufficient nexus. In Standard Steel Co. v. Washington Revenue Dept., 419 U.S. 560 (1975), one resident employee operating out of his home in the taxing state created sufficient physical presence. In National Geographic, 430 U.S. 551 (1977), two business offices unrelated to the taxpayer's sales activities within the state created sufficient physical presence. The list goes on and on.
States have taken their cue from the Court, and have been equally aggressive in asserting the existence of nexus. In Orvis the occasional in-state solicitation by out-of-state traveling salesmen created sufficient physical presence. An administrative law judge in New York's Division of Tax Appeals recently came to the same conclusion, holding that semiannual customer visits were enough to create nexus for an out-of-state tobacco supplier.5 California held in Sales Tax Counsel Ruling 220.0015 that occasional visits by employees to attend trade shows created sufficient physical presence. And a Texas policy letter ruling (9911897C) holds that one independent contractor answering customer e-mail from her home is enough to create sufficient physical presence.
As mentioned, the nexus rules applicable to state corporate income taxes are similar, although they are not entirely clear because the U.S. Supreme Court has not specifically ruled in that area. Some states have found that a corporation's mere purposeful exploitation of a state's market for services and the presence of intangible property in a state are enough to satisfy the U.S. Constitution's limitations on a state's jurisdiction to impose income taxes. The now infamous Geoffrey case and its relatives are examples of that other test.6 And as most practitioners know, federal law (Public Law 86-272) provides some additional protections to sellers of tangible personal property -- but only for corporate income-based taxes.
But even after nexus is determined, and before decisions are made about compliance, questions have to be asked about whether and to what extent a company even has a tax liability. Usually, practitioners generally should be concerned with responsibility for four separate tax types: payroll tax (including employee responsibility for individual income tax), corporate income tax, corporate franchise tax, and sales taxes. Not all states impose every tax type, and not every company will have responsibility for all taxes.
For instance, international companies often make the mistake of assuming that their protection from federal-based taxes under some form of treaty involving the United States and other countries also protects them from state-based taxes. None of those treaties, however, include states as parties. No state has a treaty regarding taxes in place with a foreign country. That said, special rules may apply in some states that would exempt a federally exempt company (or employee) from state taxes. That is, if a company's employees are not subject to U.S. federal tax, it is possible that they would be similarly exempt from state taxes. That is because most of the states use federal adjusted gross income as the starting point for the determination of personal income taxes. Thus, if an employee is exempt from federal taxes and therefore has no federal taxable income or AGI, he or she similarly would have no state taxable income by virtue of the state's computational rules. The same analysis could apply in the corporate income tax context. States that use federal taxable income as their starting point could provide protection for companies that have no federal taxable income due to a treaty.
But the point is, even with nexus, there are ways for companies to avoid compliance with tax obligations in 50 states. It just takes some looking to find out.
So that is why the state and local practitioner is often such a "happy" sight to taxpayers inquiring about multistate tax obligations. Often, because so many states take such an aggressive position regarding nexus and taxability issues, we SALT practitioners are often bearers of bad tidings. Nonetheless, we can at least offer some hope, and I hope add some value, in the compliance process. There are a variety of ways, some discussed below, for companies to quickly and safely address multistate tax concerns while keeping themselves solvent and out of the newspapers.
Some companies consider "prospective" compliance the best option. That obviously is sufficient to ensure compliance in the future, but it leaves open the possibility of investigations or audits for previous periods. That can especially be a problem, given that questions on the registration forms the company will have to fill out in the state ask "why are you registering?" and/or "how long have you been here?" Those questions can be difficult to answer if there are past issues.
Other companies often consider, particularly in the international cross-border context, the creation of a new legal entity, generally formed in the United States, to handle all U.S. operations on a going-forward basis. The idea behind that compliance strategy is to engage in business in a new, untainted entity, with the obvious goal of avoiding issues in earlier years that may exist with the old company. Here again, that approach is sufficient to address going-forward concerns, and it also makes it a lot easier to fill out that initial registration form. But it still leaves the company open to audits and investigations for previous years' taxes.
And if the previous years' tax liability is extremely significant or if the company's noncompliance spans more than just a few tax years, many companies consider participating in state "voluntary disclosure" programs. Those programs allow taxpayers to voluntarily come forward and enter into compliance with a state's taxing provisions without fear of civil or criminal penalties or excessive lookback periods. Generally, states will allow taxpayers to pay three years' worth of taxes plus interest only, and will limit any audits or investigations to this three-year period. Moreover, companies can work with the Multistate Tax Commission, which has a program designed to assist taxpayers with voluntary disclosures in several states. We have found the MTC to be an amazing resource and quite efficient in handling complex disclosures in many states.
Finally, through the Streamlined Sales Tax Project, many states are offering amnesty to taxpayers that are willing to participate in the project on a going-forward basis. Although that amnesty is available only in participating states and participation could create other issues and problems that have to be considered for particular taxpayers, the benefit of the amnesty program is that it requires compliance only on a going-forward basis. Participating taxpayers are absolved of all previous years' tax responsibility, at least for sales tax purposes.
Sometimes companies need more help with potential audits than they do with existing battles. Being able to identify those problems and, more importantly, knowing how to resolve them, is an important skill and one needed for those who practice in the state tax area.
1 U.S. Constitution, article 1, section 8, clause 3.
2 See e.g., Oklahoma Tax Commission v. Jefferson Lines, Inc., 514 U.S. 175 (1995).
3 See Quill Corp. v. North Dakota, 514 U.S. 298 (1992).
4 See Orvis Co., Inc. v. Tax Appeals Tribunal, 86 N.Y.2d 165 (1995).
6 See, e.g., Geoffrey, Inc. v. South Carolina Tax Commission, 437 S.E.2d 13, cert. denied, 114 S. Ct. 550 (1993).

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The Commission released its annual report on transparency for the year 2008.
You can read the document - COM(2009) 331 final - here.
It makes interesting reading. One would get the impression from reading the judgments of the Court of First Instance that the Commission refuses access to documents. That of course would be a false impression as only refusals are challenged. It appears from the 2008 report that the total number of applications for public access (5197) has increased by over a thousand in one year. The number of positive responses granting access has also increased in 2008: 82.68% of the responses were positive (as compared to 72.71 % in 2007).
As in 2007, roughly a third of the requests came from academics.
We noted last year's report is available here.
The EU's Office of Publications has set up a neat, web-based, directory of EU legislation in preparation.
You can consult it at the link here.
The only thing is that it does not seem to be kept up to date on a daily basis. But still, it is much better than nothing, which was the situation before.
The Commission as recently made public its report on transparency in 2007. You can download the document - COM (2008) 630 final - here.
The report is a valuable overview of all the activities of the Commission in the field of freedom of information and of its activities in applying Regulation 1049/2001. A summary of the pending court cases is provided.
What is striking is the increase in number of requests for documents which in 2007 totalled 4196 (up from 3841 in 2006), of which 72% received an initial response granting the full access to the documents requested. 273 confirmatory requests were made in 2007, and in 15% of those cases (in which access to the documents was denied, obviously) full access was granted (up from 8.57% in 2006 !).
About a third of the requests are made by academics.
For the previous report, covering 2006, see here.
Hot on the heels of the judgment of the Court of Justice in Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council (noted here) in which the Court held that greater access to documents should be granted if they relate to the legislative activities of the institutions, the Court of First Instance recently held in Case T-403/05 MyTravel Group v. Commission that a more extensive interpretation of the exceptions to public access to documents is justified if the documents concerned their administrative activities.
By the same token, the Court of First Instance held that public access granted under Regulation No 1049/2001 was not tantamount to a form of discovery: The fact that the applicant requesting the documents needed them to support a claim in damages against the Commission did not confer any greater interest or right to obtain the documents under Regulation No 1049/2001.
The judgment is quite interesting too because the Court of First Instance interprets the exception concerning the preservation of the "decision making process" under Article 4(3), second subparagraph and the protection of "court proceedings and legal advice" under Article 4(2), second indent of Regulation 1049/2001 for the first time in relation to documents drafted for internal use in the context of an administrative procedure.
This is the story. In 2002 the Court of First Instance forcefully annulled the Commission's decision prohibiting a merger in Case T-342/99 Airtours v. Commission. Following that judgment the Commission established an internal working group to examine whether an appeal against the judgment was appropriate and to review the implications of the judgment for the administrative merger procedures or other competition procedures. An internal report was drawn up. In June 2003 Airtours (renamed My Travel) brought an action for damages in Case T-212/03 against the Commission to obtain compensation for the loss it claimed to have suffered as a result of the initial prohibition decision (more about that judgment in a later post). To support its action for damages, My Travel requested access to the report of the Working Group and other internal documents under Regulation 1049/2001. The Commission granted full or partial access to some working papers but refused access to report of the Working Group and the remainder of the documents requested.
The Commission's refusal under Regulation 1049/2001 was based on the exceptions of the protection of the decision making process (Article 4(3) second subparagraph), the protection of the purpose of the investigations (Article 4(2) third indent) and the protection of court proceedings and legal advice (Article 4(2) second indent).
The Court of First Instance basically upheld the Commission's refusal.
The Court held that the interest of the public in obtaining access to documents does not carry the same weight in the case of administrative proceedings - antitrust procedures in particular - as in the case of legislative proceedings. It held that the risk of the Commission's decision-making process being seriously undermined, if internal documents were made public, was reasonably foreseeable and not purely hypothetical. The Court took account of the right of the Commissioner for Competition to obtain candid and complete opinions from the bureaucratic services and of the fact that making public preparatory documents would risk seriously undermining the decision-making freedom of the Commission.
The Court gave a fairly broad meaning to the exception relating to the exception concerning the protection of court proceedings and legal advice. It held that disclosure of the notes of the Commission's legal service could lead the legal service to display reticence and caution in the future in the drafting of such notes in order not to affect the Commission’s decision-making capacity in areas in which it is involved in its administrative capacity. Furthermore, the Court confirmed that disclosure of that advice would risk putting the Commission in an invidious position in which its legal service might have to defend a position before the Court which was not the same as the position it had taken internally in its advisory capacity.
All in all, a surprisingly expansive view of the exceptions to public access to documents.
The Court of Justice in Joined Case C-39/05 P and C-52/05 P Sweden and Turco v Council overruled a judgment of the Court of First Instance refusing to give public access to a document of the Council's Legal service containing legal advice.
It seems that the Court of Justice has been reading up on Sir Isaiah Berlin and pluralism.
What happened was that Mr Turco asked the Council for access to the documents appearing on the agenda of the ‘Justice and Home Affairs’ Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimumstandards for the reception of applicants for asylum in Member States. The Council refused to disclose the legal opinion on the ground that it deserved special protection so as not to create uncertainty regarding the legality of the measure adopted further to that opinion.
Mr Turco then challenged the Council's refusal before the Court of First Instance. That court upheld the Council decision in its judgment in Case T-84/03 Turco v Council. The Court of First Instance held that disclosure of legal opinions such as the one requested could give rise to lingering doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council’s legal service. The Court of First Instance held that the overriding public interest in disclosure must be distinct from the principles underlying Regulation No 1049/2001, in particular the principle of openness, relied on by Mr Turco.
Finally, Mr Turco and Sweden both appealed that judgment to the Court of Justice.
The Court of Justice held that the reasons advanced by the Council and upheld by the Court of First Instance for withholding legal advice from public gaze were wrong.
It held, first, as regards the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing different points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.
The Court continued that the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the EC legislature because the Council’s legal service had given an unfavorable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed.
Thus, the Court found that to submit, in a general and abstract way, that there is a risk that disclosure of legal advice relating to legislative processes may give rise to doubts regarding the lawfulness of legislative acts does not suffice to establish that the protection of legal advice will be undermined for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001 and cannot, accordingly, provide a basis for a refusal to disclose such advice.
The Council also submitted that public disclosure of its advice would erode the independence of its lawyers because pressure would be put on them by their political masters to change the advice. The Court dismissed that argument too. It held that, as regards the risk of pressure being applied to influence the content of opinions issued by the Council’s legal service, even if the members of that legal service were subjected to improper pressure to that end, it would be that pressure, and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice and it would clearly be incumbent on the Council to take the necessary measures to put a stop to it. The risk of affecting the independence of legal advice should be weighed against the overriding public interests which underlie Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of the preamble to Regulation No 1049/2001.
The Court did state that legal advice could be kept secret in some circumstances. The advice may be of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal.
There's an obvious tension between transparency and privacy. Now the Court of First Instance has stepped right into the fight and sided categorically with transparency. In its recent judgment in Case T-194/04 The Bavarian Lager Co. Ltd. v. Commission the Court of First Instance renders almost nugatory the protection afforded by Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the EC institutions.
The story goes like this. The Commission commenced Article 226 EC proceedings against the United Kingdom because of some legislation in force at the time that restricted the import of foreign beer. The Commission, with a view to finding a satisfactory solution to the case, organized a meeting with British government officials and trade representatives. Ultimately, a solution was reached and the case closed. But then, an importer of German beer wanted to know the names of the individuals who attended the meeting. For what purpose you may well ask. The Commission asked the individuals concerned whether they agreed to have their names revealed. Five of those attendees, no doubt fearing retribution or harassment by the importer, refused to have their identity revealed. The Ombudsman got involved and handed down a scathing report denouncing the Commission for not revealing the identity of those who had refused to have their names disclosed, claiming they had no right to privacy. The Article 29 Working Party then handed down a report in response (but the Court of First Instance pays scant attention to that inconvenient truth). The German importer made a request for the minutes of the meeting with the names of attendees included under Regulation 1049/2001 (the public access to documents regulation). The Commission refused to disclose the names invoking data protection and the terms of Regulation 45/2001. The importer then challenged the Commission's refusal before the Court of First Instance.
The Court of First Instance annulled the Commission's refusal. The judgment must be read to be believed.
The Court held that the list of participants in the minutes contained personal data, since the persons who participated at that meeting could be identified there. Notwithstanding the fact that it was personal data, it was not protected by Regulation 45/2001 because the mere fact that a document contains such data does not necessarily mean that the privacy or integrity of the persons concerned is affected, even though professional activities are not in principle excluded from the concept of "private life".
It also held that the privacy and integrity of a person is not compromised even if personal data relating to that person is revealed. As a consequence, any objection by such a person to disclosure of the personal data cannot prevent disclosure under Regulation 1049/2001.
What was quite extraordinary was the way in which the European Data Protection Supervisor intervened to plead that the very regulation that established his office did not apply, referring to his "paper" on public access to documents and data protection.
It's a litigious world out there. Even a decision to publish a decision can be the object of an action for annulment. And be annulled, as in Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse GmbH v. Commission.
In its judgment in Case T-474/04 the Court of First Instance annulled a decision of the Commission, taken by the antitrust Hearing Officer, to publish a decision finding antitrust violations containing references to the applicant, Pergan.
That sounds a bit weird. So here's the story. The Commission took a decision on 10 December 2003 (the peroxides decision) imposing fines on five undertakings for their participation in cartels on the market for organic peroxides. But the Commission did not fine Pergan nor did it find that it had breached the antitrust rules in the operative part of the decision. The Commission found that the proceedings against Pergan were time barred and that there was no need to refer to Pergan's participation in the infringement in the operative part of the peroxides decision, or to address the decision to it. The Commission did refer to Pergan in the grounds of the decision and described its alleged role in the cartels.
The Commission informed Pergan of the decision and sent it a copy informing it of its intention to publish a non-confidential version. Pergan then requested that all references to it be removed from the version to be published. That request was submitted to the Commission’s hearing officer. The hearing officer refused to remove from the definitive version the majority of the references made to Pergan on the ground that they were not business secrets.
Pergan then applied to the Court of First Instance to have the hearing officer's decision annulled.
The Court of First Instance agreed with Pergan and annulled the decision.
It held that the Commission had applied the obligation to respect professional secrecy in Article 287 EC too narrowly. The scope of that obligation went beyond protecting business secrets. According to the Court of First Instance, the protection of professional secrecy encompasses the principle of presumption of innocence. That presumption precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a decision bringing the administrative procedure to an end, unless that person has been able to challenge the substance of that decision. Because the operative part of the peroxides decision did not refer to it, Pergan could not and in fact did not challenge the peroxide decision itself.
The Court further held that, since the Commission’s findings relating to an infringement committed by an undertaking are capable of infringing the principle of the presumption of innocence, those findings must, in principle, be regarded as confidential as regards the public, and therefore as being of the kind covered by the obligation of professional secrecy. That principle stems from the need to respect the reputation and dignity of the person concerned as that person has not been finally found guilty of an infringement (see, by analogy, Case T‑15/02 BASF v. Commission , paragraph 604). The confidentiality of such information is confirmed by Article 4(1)(b) of Regulation No 1049/2001, which provides that information, whose disclosure would harm the protection of privacy and the integrity of the individual, is to be protected.
The Commission has published its annual report on the application of Regulation 1049/2001 on public access to its documents.
The report - COM(2007)548 final - that has just appeared covers the activities of the Commission in 2005. And it is the fourth such report. The last report, covering 2004, was published in 2005.
The report contains a useful summary of Ombudsman complaints, judgments of the Court of First Instance and cases pending before the Court of First Instance. There is also a statistical annex which shows that there were 3 173 initial requests for documents in 2005, up from 2 600 in 2004. Most requests are granted at the initial stage (68%), 23.5 % of initial refusals are partially revised and 8% revised in full at the confirmatory stage. The most popular area is that of antitrust (12.7 %) and only 1.24% of requests come from persons from non-European countries. Not a single request from the USA in 2005 !
What a plethora of judgments and orders today! Let us just take them one by one, starting with the judgment of the Court of First Instance, Grand Chamber no less, finding that the Commission was wrong to refuse to disclose certain pleadings lodged before the EC courts to the public.
In its judgment in Case T-36/04 API v. Commission the Court of First Instance mostly upheld the claim by a group of journalists that public access should be granted to pleadings which the Commission had lodged in certain cases before the Court of First Instance itself and before the Court of Justice.
Regulation 1049/2001 grants members of the public a general right of access to documents of the institutions. But it provides for exceptions to that general principle, in particular where disclosure of a document would undermine the protection of court proceedings or the purpose of investigations, unless there is an overriding public interest in disclosure.
API, a group of foreign journalists based in Belgium, asked the Commission for access to all the written submissions made by the Commission to the Court of First Instance or the Court of Justice in a number of cases. The Commission granted access to the pleadings in preliminary reference cases but refused to disclose the pleadings in direct actions. It justified the refusal on the grounds that in some cases disclosure would adversely affect the pending court proceedings, harming inter alia its position as a party and the serenity of the debate. It also refused to grant access in a case that was closed because disclosure of its pleadings would adversely affect other proceedings, which were still pending. It refused to disclose the pleadings in infringement cases because, even though those cases had been closed by judgments of the Court of Justice finding that the member States concerned had failed to fulfil their obligations, those States had not yet complied with the judgments, so negotiations were still in progress to bring the infringements to an end. Accordingly, disclosure could prejudice the investigations relating to those infringements.
The Court of First Instance largely disagreed with the Commission and partially (but mostly) annulled its decision refusing access. It held that when a case had reached the stage of the oral hearing, for which a report for the hearing is produced and is available to the public, the Commission could no longer invoke an exception to the general right of public access, such as the protection of court proceedings or the purpose of investigations, for whole categories of documents. The Commission, the Court held, had to justify any refusal in respect of each document.
But the Court of First Instance did uphold the Commission's refusal to disclose pleadings in respect of cases that were still pending and which had not yet reached the oral procedure at the time of the request.
Of course, the judgment is a bit more complicated than that and you should read the whole thing. The Court has also put out a good press release that gives more detail.

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G.R. No. 158848 and G.R. No. 171994 - ESTEBAN YAU v. RICARDO C. SILVERIO, SR.
ESTEBAN YAU, Petitioner, v. RICARDO C. SILVERIO, SR., Respondent.
Before this Court are two (2) consolidated petitions, the first, docketed as G.R. No. 158848, is a Petition for Review on Certiorari 1 of the Decision2 dated September 22, 1999 and Resolution dated June 20, 2003 of the Court of Appeals in CA-G.R. SP No. 72202; and the other, G.R. No. 171994, is likewise a Petition for Review on Certiorari assailing the Decision3 dated August 24, 2005 and Resolution dated March 15, 2006 of the Court of Appeals in CA-G.R. SP No. 60106.
On January 22, 1981, Esteban Yau bought from the Philippine Underwriters Finance Corporation (Philfinance) Promissory Note No. 3447 issued by the Philippine Shares Corporation (PSC). Yau paid the amount of P1,600,000 to Philfinance for the note. The latter promised to return to him on March 24, 1981 his investment plus earnings of P29,866.67. Philfinance then issued postdated checks to Yau drawn against the Insular Bank of Asia and America, all maturing on March 24, 1981, for P1,600,000.00, P24,177.78 and P5,688.89. But when the checks were deposited in the bank, they were dishonored for insufficiency of funds. When Yau complained to the PSC, it denied having issued the promissory note.
Thus, on March 28, 1984, Yau filed a complaint4 with the Regional Trial Court (RTC), Branch 6, Cebu City, for recovery of the value of the promissory note and for damages against Philfinance and the members of its board of directors, among whom were Ricardo C. Silverio, Sr., Pablo C. Carlos, Jr., Arturo Macapagal, Florencio Biagan, Jr., and Miguel Angel Cano.
Except for defendant Pablo C. Carlos Jr., all the other defendants failed to file their answers seasonably. Hence, the trial court issued an Order declaring them in default and allowing Yau to present his evidence ex parte. Pablo Carlos, Jr., although present during the hearing, did not present evidence in his defense.
Meanwhile, after the trial court denied their motion for reconsideration, Silverio and his co-defendants (except Pablo Carlos, Jr.), filed with the Court of Appeals a Petition for Certiorari and prohibition (docketed as CA-G.R. SP No. 04835), assailing the Order of default. The appellate court, however, in its Decision dated March 10, 1986, dismissed the petition, holding that summonses were duly served and that defendants' failure to answer the complaint justifies the trial court's Order declaring them in default. Since they did not interpose an appeal, the Decision of the appellate court became final and executory on June 17, 1986. An entry of judgment was made on July 4, 1986.
(f) The costs of the suit.
The Counterclaims interposed by the defendant Pablo C. Carlos, Jr. in his Answer, are dismissed.
Pablo Carlos, Jr. and Philfinance interposed an appeal to the Court of Appeals, docketed therein as CA-G.R. CV No. 33496. With respect to Silverio, Macapagal, Biagan, and Cano, their Notice of Appeal was dismissed for their failure to pay the docket fees. The Order of dismissal became final and executory on December 26, 1991 and an entry of judgment was made on April 21, 1992.
On July 31, 1992, the trial court, upon petitioner Yau's motion, issued an Order directing the execution of its Decision and, on September 17, 1992, issued the corresponding writ of execution.
In December 1992, the defendants' bank deposits were garnished by the sheriff. Also, the shares of Silverio in the Manila Golf and Country Club were sold at public auction for P2,000,000. As the judgment was only partially satisfied, the writ of execution was enforced against the other defendants, including Macapagal.
Silverio and Macapagal took separate courses of action. On February 2, 1993, Macapagal filed with this Court a Petition for Certiorari and prohibition, questioning the validity of the Decision of the trial court, its Order of execution and the writ of execution. The petition, however, was referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 31075 and raffled off to the Fourteenth Division. Eventually, the appellate court dismissed the petition on the ground that the same was barred, under the principle of res judicata, by its previous Decision in CA-G.R. SP No. 04835, upholding the validity of the trial court's Order of default.
On other hand, Silverio filed with the Court of Appeals (Special Eleventh Division) a petition for reinstatement of his appeal and annulment of the writ of execution, docketed as CA-G.R. CV No. 33496. However, the appellate court denied the petition on the ground that the Order of the RTC dismissing the Notice of Appeal had become final and executory.
Macapagal then filed with this Court a Petition for Review on Certiorari ,docketed as G.R. No. 110610. Silverio likewise filed with this Court a similar petition, docketed as G.R. No. 113851. These petitions were consolidated because they arose out of the same facts. In its Decision dated April 18, 1997, this Court upheld the rulings of the Court of Appeals and dismissed their petitions. Their motions for reconsideration were denied with finality by this Court in its Resolution6 dated October 8, 1998.
Considering that the judgment was not fully satisfied, the sheriff resumed the implementation of the writ. In 1999, he sent notices of garnishment to several banks in Manila against any existing account of Macapagal. Thereupon, Macapagal filed with the trial court a motion to quash the writ of execution on the ground that its lifetime has expired, contending that the judgment in Civil Case No. CEB - 2058 became final and executory in 1992, hence, can be enforced only within five (5) years therefrom or until 1997. After five (5) years and within ten (10) years from the entry of judgment, it may be enforced only by an independent civil action.
On January 28, 2000, the trial court issued an Order denying Macapagal's motion to quash the writ of execution. His motion for reconsideration was likewise denied in a Resolution dated May 22, 2000. The trial court held that there was an effective interruption or delay in the implementation of the writ of execution because he filed with the Court of Appeals and this Court various petitions.
Macapagal then filed with the Court of Appeals (Eighteenth Division) a Petition for Certiorari, docketed as CA-G.R. SP No. 60106. However, the appellate court, in its Decision dated August 24, 2005, dismissed the petition and denied the motion for reconsideration in its Resolution dated September 15, 2005.
Hence, Macapagal filed with this Court the present petition, docketed as G.R. No. 171994.
The aforesaid Decision became final and executory on March 21, 2001.
Sometime in 2001, the sheriff found that Silverio was a co-owner of three (3) houses located in Forbes Park and Bel-Air Village, Makati City, covered by TCT Nos. (147129)-137156, (436750)-137155 and (337033)-137154 of the Registry of Deeds, same city. Thus, on March 21, 2001, the sheriff served a Notice of Levy on a house and lot in Forbes Park. An auction sale was held on July 26, 2001 wherein Yau was declared the highest bidder, with a bid of P11,443,219.64 for the said house and lot covered by TCT No. (436750)-137155. On August 6, 2001, the sheriff issued the corresponding Certificate of Sale.
On December 7, 2001, Silverio filed with the trial court an omnibus motion praying that the levy on execution, the notice of auction sale and the certificate of sale be declared void. He contends that the writ of execution has become functus oficio since more than five (5) years have elapsed from the finality of the judgment sought to be executed.
The trial court, in its Order of March 20, 2002, denied the omnibus motion. The trial court also denied his motion for reconsideration in an Order dated June 21, 2002.
WHEREFORE, premises considered, the petition is GRANTED, and the assailed Orders of public respondent judge are REVERSED and SET ASIDE. The levy by respondent sheriff upon TCT No. (-147129)-137156, TCT No. (-436750)137155, and TCT No. (-337033 - )137154, as well as the subsequent auction sale and transfer of the property covered by TCT No. (436750) 137155, are declared NULL and VOID. All annotations upon the titles to aforesaid properties pursuant to the levy are ordered cancelled. Costs against private respondent.
Yau's motion for reconsideration was denied by the appellate court in its Resolution dated June 20, 2003.
Hence, Yau filed the instant Petition for Review on Certiorari, docketed as G.R. No. 158848.
In view of the identity of the parties and the issues in G.R. No. 158848 and G.R. No. 171994, we resolved to consolidate the two petitions.
The principal and common issue in both petitions is whether the Decision rendered by the RTC in Civil Case No. CEB-2058 may no longer be enforced against Silverio and Macapagal since more than five (5) years have already lapsed from its finality.
Significantly, the Court of Appeals rendered conflicting Decisions. In the Petition for Certiorari (CA-G.R. SP No. 60106) filed by Macapagal assailing the trial court's Orders denying his motion to quash the writ of execution, the appellate court denied his petition. It sustained the trial court's ruling that its judgment may still be enforced despite the lapse of five years from the date it became final; and held that the delay in the implementation of the writ of execution was due to Macapagal's filing with the Court of Appeals and this Court various petitions.
Relative to Silverio's Petition for Certiorari (CA-G.R. SP No. 72202) questioning the trial court's Orders denying his omnibus motion to declare void the levy on execution, the auction sale and the certificate of sale, the Court of Appeals granted his petition. The appellate court ruled that the writ had become functus oficio and could no longer be enforced since more than five years have elapsed from the finality of the trial court's judgment.
Section 6. Execution by motion or by independent action. - A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.
It is clear from the above Rule that a judgment may be executed on motion within five years from the date of its entry or from the date it becomes final and executory. Thereafter, before barred by the statute of limitations, by action. However, there are instances where this Court allowed execution by motion even after the lapse of five years upon meritorious grounds.
In Francisco Motors Corporation v. Court of Appeals,9 this Court held that in computing the time limit for enforcing a final judgment, the general rule is that there should not be included the time when execution is stayed, either by agreement of the parties for a definite time, by injunction, by the taking of an appeal or writ of error so as to operate as a supersedeas, by the death of a party or otherwise. Any interruption or delay occasioned by the debtor will extend the time within which the writ may be issued without scire facias. Thus, the time during which execution is stayed should be excluded, and the said time will be extended by any delay occasioned by the debtor.
Here, the judgment of the trial court sought to be executed became final and executory on December 26, 1991. The writ of execution was issued on September 17, 1992. It could not be enforced for the full satisfaction of the judgment within the five-year period because Macapagal and Silverio filed with the Court of Appeals and this Court petitions challenging the trial court's judgment and the writ of execution. Such petitions suspended or interrupted the further enforcement of the writ.
As stated earlier, on April 18, 1997, this Court rendered its Decision in G.R. No. 110610 and G.R. No. 113851 dismissing the petitions of Macapagal and Silverio assailing the trial court's judgment in Civil Case No. CEB-2058. In 1998, this Court denied with finality their motions for reconsideration. And in the instant petitions, Macapagal and Silverio are attacking the validity of the writ of execution by the trial court. Because of their maneuvers, there has been a delay of sixteen (16) years in the enforcement of such judgment, reckoned from its finality on December 26, 1991 up to the present. Indeed, the enforcement of the trial court's judgment by motion has been interrupted by the acts of Macapagal and Silverio the judgment debtors.
Let it be stressed that with respect to Macapagal and Silverio the Decision of the trial court has attained finality. Such definitive judgment is no longer subject to change, revision, amendment or reversal. Upon finality of the judgment, the court loses its jurisdiction to amend, modify or alter the same. Except for correction of clerical errors or the making of nunc pro tunc entries which causes no prejudice to any party, or where the judgment is void, the judgment can neither be amended nor altered after it has become final and executory. This is the principle of immutability of final judgment.
"Litigation must end and terminate sometime and somewhere and it is essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party be, not through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them."
WHEREFORE, we GRANT the Petition of Esteban Yau in G.R. No. 158848 and DENY the petition of Arturo Macapagal in G.R. No. 171994. The Decision of the Court of Appeals in CA-G.R. SP No. 72202 is REVERSED, while the Decision of the Court of Appeals in CA-G.R. SP No. 60106 is AFFIRMED.The RTC, Branch 6, Cebu City, is directed to order its sheriff to continue the implementation of the writ of execution issued in Civil Case No. CEB-2058 until the award in favor of petitioner Esteban Yau shall have been fully satisfied.
Costs against Ricardo C. Silverio, Sr. and Arturo Macapagal.
Puno, C.J., Chairperson, Corona*, Azcuna**, Leonardo-de Castro, Reyes, JJ., concur.
** Additional member pursuant to Administrative Circular No. 84-2007.
1 Under Rule 45 of the 1997 Revised Rules of Civil Procedure, as amended.
2 Penned by Associate Justice Eliezer R. De Los Santos with Associate Justice Romeo A. Brawner (retired; now Comelec Commissioner) and Associate Justice Regalado E. Maambong concurring; Rollo, pp. 55-80.
3 Penned by Associate Justice Pampio A. Abarintos with Associate Justice Mercedes Gozo-Dadole and Associate Justice Ramon M. Bato, Jr. concurring; id., pp. 35-42.
4 Docketed as Civil Case No. CEB-2058.
5 Rollo, G.R. No. 171994, pp. 52-53.
6 Macapagal v. Court of Appeals, et al. G.R. No. 110610 and Silverio, et al. v. Court of Appeals, et al., G.R. No. 113851, October 8, 1998, 297 SCRA 429.
7 Rollo, G.R. No. 158848, p. 60.
9 G.R. NOS. 117622-23, October 23, 2006, 505 SCRA 8, citing Lancita v. Magbanua, 7 SCRA 42 (1963).
10 Camacho v. Court of Appeals, G.R. No. 118339, March 19, 1998, 287 SCRA 611, citing Republic v. Court of Appeals, 260 SCRA 344 (1996).
12 G.R. No. 36786, April 17, 1989, 172 SCRA 211 cited in Seven Brother Shipping Corporation v. Oriental Assurance Corporation, supra.
13 Seven Brother Shipping Corporation v. Oriental Assurance Corporation, supra, citing In Re: Petition for Clarification as to the Validity and Forceful Effect of Two (2) Final and Executory but Conflicting Decisions of the Honorable Supreme Court, G.R. No. 123780, September 24, 2002, 389 SCRA 493.
14 Lancita v. Magbanua, supra at footnote 9.

matches: v. v. v. v. v. v. v. v. v. v. v.


§ 60.2-512 Requiring payroll and tax reports and payment of . . .
A. The Commission is hereby expressly authorized to require the filing of payroll and tax reports, and the payment of the taxes required by § 60.2-511 in monthly, quarterly, semiannual or annual payments as shall be determined by the Commission; however, if the due date for filing of reports or payment of taxes falls on a Saturday, Sunday or legal holiday, the due date shall be extended to the next business day that is not a Saturday, Sunday or legal holiday. Beginning January 1, 2013, employers may file payroll and tax reports, and pay the taxes required by § 60.2-511, annually, in the time, form and manner prescribed by the Commission, if the employment that is the subject of the report of taxes due under this chapter consists exclusively of domestic service in a private home of the employer, as defined in §§ 31.3121 (a)(7)-1, 31.3306 (c)(2)-1, and 31.3401 (a)(3)-1 of the Employment Tax Regulations promulgated pursuant to §§ 3121, 3306, and 3401 of the Internal Revenue Code, as amended. The aggregate amount of taxes shall be fully paid to the Commission on or before January 31 of each year next succeeding the year with respect to employment during which year such taxes are imposed, or in the event the time is extended for filing the return of the taxes imposed by Title IX of the Social Security Act for the year for which such taxes are imposed, then before the expiration of such extension. Taxes due and payable in an amount less than five dollars shall be deemed to be fully paid; however, this does not relieve an employer from filing payroll and tax reports as herein required.
B. Beginning January 1, 1994, through December 31, 2008, employers who report 250 or more employees in any calendar quarter shall file quarterly reports on a magnetic medium using a format prescribed by the Commission. Beginning January 1, 2009, employers who report 100 or more employees in any calendar quarter in 2009, or thereafter, shall file quarterly reports on an electronic medium using a format prescribed by the Commission. Waivers will be granted only if the Commission finds this requirement creates an unreasonable burden on the employer. All requests for waiver must be submitted in writing. Beginning January 1, 2009, if any employer who reports 100 or more employees in any calendar quarter in 2009, or thereafter, and who has not obtained a waiver by the date the employer’s quarterly report is due, fails, without good cause shown, to file electronically, the Commission shall assess upon the employer a penalty of $ 75, which penalty shall be in addition to the taxes due and payable with respect to such report and to any penalty assessed under subsection B of § 60.2-513. Penalties collected pursuant to this section shall be paid into the Special Unemployment Compensation Administration Fund established pursuant to § 60.2-314.
C. Notwithstanding the provisions of subsection A, no payroll and tax reports shall be filed with respect to an employee of a state or local agency performing intelligence or counterintelligence functions, if the head of such agency has determined that filing such a report could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
Code 1950, § 60-61; 1968, c. 738, § 60.1-73; 1981, c. 99; 1984, c. 458; 1986, c. 480; 1993, c. 249; 1996, c. 264; 1997, c. 385; 2007, cc. 426, 638; 2012, c. 316.
If you’re reading this for anything important, you should double-check its accuracy—read § 60.2-512 on the official Code of Virginia website.


Section 1430(b) entitles each affected resident to recover up to $500 for each violation. Each day that a facility fails to meet the minimum and/or adequate nurse staffing requirements constitutes a separate violation for each resident in the facility on the understaffed day. For days when the facility failed to provide at least 3.2 PPD, plaintiffs will ask the jury to find a single violation for each patient in the facility, as opposed to two violations for failing to provide adequate staffing (§1599.1) and minimum staffing (§1276.5).
Although plaintiffs need not prove personal injury or actual harm to recover under Section 1430(b), that does not mean that defendants’ understaffing resulted in only hypothetical harm, as defendants contend. Through testimony from class members, current and former employees, and expert witnesses, plaintiffs will show that understaffing results in real and tangible consequences.
Plaintiffs’ evidence of understaffing is based primarily on Key Factor Reports prepared each day by ABC’s facilities at the express direction of ABC Healthcare, LLC. ABC’s witnesses have uniformly testified that the Key Factor Report is the only document kept by the facilities that tracks on a daily basis whether they are in compliance with state law. These Key Factor Reports show more than 10,900 days under 3.2 PPD. An additional 550 violations are confirmed in deficiencies and citations issued by the Department of Public Health (previously DHS). This evidence is corroborated through defendants’ admissions in deposition testimony and email.
In addition, ABC destroyed and/or refused to produce Key Factor Reports for roughly 9,250 days. Because defendants admittedly destroyed and have refused to produce these Key Factor Reports, the Court should deem ABC to have failed to provide adequate staffing for each of the days for which no Key Factor Report was produced.
On November 17, 2010, ABC produced, for the first time, its own revised “PPD Analysis.” This analysis has apparently been a work in progress for months (if not years).
Section 1430(b) creates a private right of action for residents of ABC nursing facilities to recover up to $500 for each facility’s violation of any state or federal law or regulation. Under plaintiffs’ single enterprise allegations, all defendants are jointly and severally liable for their violations of Section 1430(b) and the other claims asserted.
Plaintiffs’ Section 1430(b) claim is predicated on defendants’ violations of both (1) Health & Safety Code section 1276.5, which requires each facility to provide a minimum of 3.2 nursing hours per patient (3.2 PPD), and (2) Health & Safety Code section 1599.1, which imposes the additional obligation to employ an adequate number of qualified personnel (including nursing personnel) to carry out all of the functions of the facility.
This class-action lawsuit concerns chronic understaffing at twenty-two California skilled nursing facilities operated by ABC Healthcare, LLC and its parent company, ABC Healthcare Group, Inc (hereinafter “ABC”). Plaintiffs are current and former residents of ABC’s nursing homes (Resident Class) and family members that paid money to place residents at those facilities (Family Member Class). Several of these facilities are located in Sacramento.
Plaintiffs allege that ABC failed to meet California’s minimum staffing requirements and concealed from the consuming public the fact that its facilities were understaffed. These and related allegations support plaintiffs’ four causes of action based on violations of: (1) Health and Safety Code section 1430(b); (2) the Consumers Legal Remedies Act (CLRA); (3) unlawful, unfair, and fraudulent business practices under California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, §§ 17200 et seq.); and (4) California’s False Advertising Law (FAL) (Bus. & Prof. Code, §§ 17500 et seq.).
It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.
As to the motion attacking Plaintiff’s claim of wilful misconduct, XYZ Care fails in the fundamental purpose of providing Plaintiff of any form of notice as to the issues presented by the motion for summary adjudication. The issue, as set forth (“plaintiffs have no evidence that moving defendant committed any intentional wrongful conduct toward plaintiffs’ decedent”) is too broadly stated to provide any meaningful notice which would comply with the due process aspect of the separate statement as expressed in Elcome and San Diego Watercrafts, supra. Defendants’ initial burden in bringing a motion for summary adjudication is to show that one or more elements of claim cannot be established. Marron, supra.
Accordingly, in compliance with the obligation of the moving party to provide adequate notice, in the notice of motion and Separate Statement, it is incumbent to frame the issues in such a manner that Plaintiffs are informed what element or elements of the claim Defendant asserts the purported undisputed facts prove cannot be established. Otherwise, Plaintiffs (and the court) is left to speculate what element of the claim (i.e., what element of Wilful Misconduct, – duty, breach, knowledge of peril, knowledge of probable injury, failure to avoid peril, causation or damages) is under scrutiny, and for which opposing evidence must be presented.
In a motion for summary adjudication, the moving party must specifically state in their motion and Separate Statement the specific causes of action, defenses, issues of duty and or claims of damages upon which summary adjudication is sought. Moreover, a defendant bringing a motion for summary adjudication “must … show one or more elements of a cause of action cannot be established.” Marron v. Superior Court (2002) 104 Cal.App.4th 388, 392. The purpose of the Separate Statement is to inform the opposing party of what issues and undisputed material facts they must address in order to defeat the motion. Elcome v. Chin (2003) 110 Cal.App.4th 310, 322.
Where a remedy as drastic as summary judgment is involved, due process requires a party to be fully advised of all the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.
The separate statement contains no specific reference to evidence, making the purported facts impossible to affirm or dispute.
(d) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.
Instead of setting forth a specific reference to portions of the interrogatories and answers as evidence in support of the claimed undisputed fact, movants were content to generally refer to the discovery responses in general, and to summarize and characterize the evidence. The tactic seems to be to claim the absence of facts by offering movants’ counsel’s summary of discovery.
The separate statement provides what it purports to be a summary of responses to interrogatories 25 and 45, but fails to make reference to the specific portions of the lengthy discovery responses it purports to summarize. Moreover, there is no reference to or summary of the voluminous medical records with Plaintiffs response refers to and incorporates under C.C.P. §2030.230. Accordingly, the separate statement is deficient. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. California Rules of Court, Rule 3.1350(d).
It is not the court’s (or Plaintiffs’) responsibility to pour over lengthy documents to find the evidence on which defendants rely to determine whether defendants’ characterization of the interrogatories and plaintiffs’ responses, are accurate. The “Golden Rule of Summary Adjudication” is: “If it is not set forth in the separate statement, it does not exist.” Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208. Defendants’ deficient separate statement makes the in determining the presence or absence of material issues of fact extremely difficult if not impossible. If defendants had asked discrete questions requesting factual support for each element of each cause of action and provided the response thereto, perhaps it would be a more a manageable task.
A further response to this interrogatory would require a compilation, abstract, audit or summary of the medical records of Paul Hill’s health care providers, the burden and expense of preparation of which would be substantially the same for the propounding party, and accordingly Plaintiff responds under C.C.P. §2030.230 and refers to the medical records of Paul Hill, including the records of St. Edna’s Subacute and Rehabilitation Center, and Fountain Valley Regional Hospital and Medical Center, Prairie La Vida Medical Group, Starcare/Gateway Medical Group, and PacifiCare/Secure Horizons.
The moving papers are completely devoid of any evidence that the records referred to in Plaintiffs’ discovery responses are factually devoid sufficient to meet their burden. To the contrary, the medical records clearly establish XYZ Care’s knowledge of Mr. Jackson’s condition, knowledge that failure to address his care needs would subject him to severe injury and death, knowledge of his deteriorating condition, and complete failure by XYZ Care’s staff to take any action, as required by applicable federal and state regulations standards of care, to avoid the known perils to Mr. Jackson.
Plaintiffs recognize that a defendant moving for summary adjudication may rely on “factually devoid” discovery responses to shift the burden of proof. C.C.P. §437c(p)(2). Circumstantial evidence supporting a defendant’s summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but “the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.” Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.
The moving papers concede that Plaintiffs’ discovery responses include seven pages of facts which support the claims for which defendants seek summary adjudication, including two pages which specifically pertain to XYZ Care.


Justia › US Law › US Case Law › US Supreme Court › Volume 419 › Cantrell v. Forest City Publishing Co.
Knowing falsehoods regarding a matter of public concern are not protected under the First Amendment, and a media outlet can be sued for invasion of privacy in this situation.
After a bridge collapsed, killing Cantrell's husband among others, Forest City Publishing investigated the accident. One of its reporters went to the Cantrell home to interview the family on the effect of the father's death. Cantrell was not home at the time, so the reporter interviewed and took pictures of the children. The reporter did not interview Cantrell at any other time before the story appeared. It included an alleged interview with an description of Cantrell, among other factual flaws.
Cantrell argued that the article had invaded her privacy by casting her children and her in a false light. After the trial judge dismissed the punitive damages request, the jury found for Cantrell based on an instruction that it could find liability based on a reckless disregard for the truth. The appellate court reversed the jury verdict on the grounds that dismissing the punitive damages issue because there was no actual malice meant that the entire claim should be dismissed because actual malice was necessary to show liability for any damages.
Ruling that the trial judge properly instructed the jury, Stewart found that the use of "malice" in the lower court was in a different sense from its meaning as applied to defamation cases. The jury did not act unreasonably in finding that the defendant knew that parts of the story were false and nevertheless published them, showing a reckless disregard for the truth.
When considered together with other cases involving the same tort, the decision shows that actual malice or gross recklessness rather than ordinary negligence is required to establish a cause of action for invasion of privacy.
Petitioners, a mother and her son, brought a diversity action against respondents, a newspaper publisher and a reporter, for invasion of privacy based on a feature story in the newspaper discussing the impact upon petitioners' family of the death of the father in a bridge collapse. The story concededly contained a number of inaccuracies and false statements about the family. The District Judge struck the claims for punitive damages for lack of evidence of malice "within the legal definition of that term," but allowed the case to go to the jury on the "false light" theory of invasion of privacy, after instructing the jurors that liability could be imposed only if they found that the false statements were published with knowledge of their falsity or in reckless disregard of the truth, and the jury returned a verdict for compensatory damages. The Court of Appeals reversed, holding that the District Judge should have directed a verdict for respondents, since his finding of no malice in striking the punitive damages claims was based on the definition of "actual malice" established in New York Times Co. v. Sullivan, 376 U. S. 254, and thus was a determination that there was no evidence of the knowing falsity or reckless disregard of the truth required for liability.
Held: The Court of Appeals erred in setting aside the jury's verdict. Pp. 419 U. S. 251-254.
(a) The record discloses that the District Judge, when he dismissed the punitive damages claims, was not referring to the New York Times "actual malice" standard, but to the common law standard of malice that is generally required under state tort law to support an award of punitive damages, and that, in a "false light" case, would focus on the defendant's attitude toward the plaintiff's privacy, and not on the truth or falsity of the material published, and thus was not determining that petitioners had failed to introduce evidence of knowing falsity or reckless disregard of the truth. Pp. 419 U. S. 251-252.
(b) Moreover, the evidence was sufficient to support jury findings that respondents had published knowing or reckless falsehoods about petitioners, particularly with respect to "calculated falsehoods" about petitioner mother's being present when the story was being prepared, and that respondent reporter's writing of the story was within the scope of his employment at the newspaper so as to render respondent publisher vicariously liable under respondeat superior for the knowing falsehoods in the story. Pp. 419 U. S. 252-254.
484 F.2d 150, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 419 U. S. 254.
as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs.
The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents' motion for a directed verdict as to all the Cantrells' claims. 484 F.2d 150. We granted certiorari, 418 U.S. 909.
In December, 1967, Margaret Cantrell's husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W.Va. collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a "news feature" story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family.
Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence.
illustrate the impact of the bridge collapse on the lives of the people in the Point Pleasant area.
"Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that, after it happened, the people in town offered to help them out with money, and they refused to take it. [Footnote 1]"
Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home.
"false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth."
385 U.S. at 385 U. S. 388. Although the jury could have reasonably concluded from the evidence in the Hill case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that "the story reenacted" the Hill family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. Id. at 385 U. S. 394.
announced in Time, Inc. v. Hill applies to all false light cases. Cf. Gertz v. Robert Welch, Inc., 418 U. S. 323. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict.
At the close of the petitioners' case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy "was done maliciously within the legal definition of that term." The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells' claims. 484 F.2d at 155.
such, it is quite different from the common law standard of "malice" generally required under state tort law to support an award of punitive damages. In a false light case, common law malice -- frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights -- -would focus on the defendant's attitude toward the plaintiff's privacy, not toward the truth or falsity of the material published. See Time, Inc. v. Hill, 385 U.S. at 385 U. S. 396 n. 12. See generally W. Prosser, Law of Torts 9-10 (4th ed.).
Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common law standard of malice, rather than to the New York Times "actual malice" standard, when he dismissed the punitive damages claims. For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents' motion for directed verdicts as to Mrs. Cantrell's and William's claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, Inc. v. Hill meaning of the New York Times "actual malice" standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that, in dismissing the punitive damages claims, he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge's subsequent denial of the respondents' motion for judgment n.o.v. and alternative motion for a new trial.
to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells. [Footnote 5] There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home, and that Eszterhas had observed her "wear[ing] the same mask of nonexpression she wore [at her husband's] funeral." These were "calculated falsehoods," and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth.
assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that, as a staff writer for the Plain Dealer, Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas' story.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas.
Eszterhas, Legacy of the Silver Bridge, the Plain Dealer Sunday Magazine, Aug. 4, 1968, p. 32, col. 1.
Although this is a diversity action based on state tort law, there is remarkably little discussion of the relevant Ohio or West Virginia law by the District Court, the Court of Appeals, and counsel for the parties. It is clear, however, that both Ohio and West Virginia recognize a legally protected interest in privacy. E.g., Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340; Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564; Sutherland v. Kroger Co., 144 W.Va. 673, 110 S.E.2d 716. Publicity that places the plaintiff in a false light in the public eye is generally recognized as one of the several distinct kinds of invasions actionable under the privacy rubric. See Prosser, Privacy, 48 Calif. L Rev. 383, 398-401; Restatement (Second) of Torts § 652E (Tent.Draft No. 13).
"[T]he constitutional protection for speech and press preclude[s] redress for false reports of matters of public interest in the absence of proof that the defendants published the report with knowledge of its falsity or in reckless disregard of the truth."
"Thus, in this case, the burden of proof is upon the plaintiffs to prove by a preponderance of the evidence their assertions of an invasion of privacy, the elements of which are:"
"(1) An unwarranted and/or wrongful intrusion by the defendants into their private or personal affairs with which the public had no legitimate concern."
"(2) Publishing a report or article about plaintiff with knowledge of its falsity or in reckless disregard of the truth"
"(3) Defendants' acts of publishing a report or article about plaintiffs with knowledge of its falsity or in reckless disregard of the truth caused plaintiffs injury as individuals of ordinary sensibilities and damage in the form of outrage or mental suffering, shame or humiliation."
"Thus, if it be your conclusion and determination that plaintiffs have failed to prove by a preponderance of the evidence that defendants invaded the [plaintiffs'] privacy by publishing a report or article about them with knowledge of its falsity or in reckless disregard of the truth, you need not deliberate further and you will return a verdict in favor of the defendants."
"An act is knowingly done if done voluntarily and intentionally and not because of mistake or accident or other innocent reason."
"Recklessness implies a higher degree of culpability than negligence. Recklessly means wantonly, with indifference to consequence."
In Time, Inc. v. Hill, 385 U. S. 374, the Court did not employ this term of art. Instead, the Court repeated the actual standard of knowing or reckless falsehood at every relevant point. See, e.g., id. at 385 U. S. 388, 385 U. S. 390, 385 U. S. 394.
Although we conclude that the jury verdicts should have been sustained as to Eszterhas and Forest City Publishing Co., we agree with the Court of Appeals' conclusion that there was insufficient evidence to support the jury's verdict against the photographer Conway. Conway testified that the photographs he took were fair and accurate depictions of the people and scenes he found at the Cantrell residence. This testimony was not contradicted by any other evidence introduced at the trial. Nor was there any evidence that Conway was in any way responsible for the inaccuracies and misstatements contained in the text of the article written by Eszterhas. In short, Conway simply was not shown to have participated in portraying the Cantrells in a false light.
"Any act of an employee or agent, to become the act of the corporation, must be performed by the employee while acting within the scope of his employment."
"The Court charges you as a matter of law that, before any acts or knowledge of Joseph Eszterhas or Richard T. Conway may be imputed to the defendant, Forest City Publishing Company, the plaintiffs must prove by a preponderance of the evidence that defendant, Forest City Publishing Company, had actual knowledge of those acts and information or that Conway and Eszterhas were acting within the scope of their employment when they performed the acts or acquired the information."
None of the parties objected to this instruction.
and Fourteenth Amendments by what we do today. This line of cases, which of course includes New York Times Co v. Sullivan, 376 U. S. 254 (1964), seems to me to place First Amendment rights of the press at a midway point similar to what our ill-fated Betts v. Brady, 316 U. S. 455 (1942), did to the right to counsel. The press will be "free" in the First Amendment sense when the judge-made qualifications of that freedom are withdrawn and the substance of the First Amendment restored to what I believe was the purpose of its enactment.
A bridge accident catapulted the Cantrells into the public eye, and their disaster became newsworthy. To make the First Amendment freedom to report the news turn on subtle differences between common law malice and actual malice is to stand the Amendment on its head. Those who write the current news seldom have the objective, dispassionate point of view -- or the time -- of scientific analysts. They deal in fast-moving events, and the need for "spot" reporting. The jury under today's formula sits as a censor with broad powers -- not to impose a prior restraint, but to lay heavy damages on the press. The press is "free" only if the jury is sufficiently disenchanted with the Cantrells to let the press be free of this damages claim. That regime is thought by some to be a way of supervising the press which is better than not supervising it at all. But the installation of the Court's regime would require a constitutional amendment. Whatever might be the ultimate reach of the doctrine Mr. Justice Black and I have embraced, it seems clear that, in matters of public import such as the present news reporting, there must be freedom from damages lest the press be frightened into playing a more ignoble role than the Framers visualized.
Margaret Mae Cantrell, et al.
Forest City Publishing Company, et al.


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64-213. Acknowledgments of written instruments; insurance company; credit union; oath; prior acknowledgments validated.
Source:R.S.1866, c. 43, § 3, p. 280; R.S.1913, § 6198; C.S.1922, § 5597; C.S.1929, § 76-203; R.S.1943, § 76-217; Laws 1947, c. 244, § 1, p. 768; Laws 1959, c. 347, § 1, p. 1233; R.R.S.1943, § 76-217.03; Laws 1976, LB 622, § 4; Laws 2002, LB 1094, § 16.


Chapter 74C - Private Protective Services.
Article 1 - Private Protective Services Board.
§ 74C-3. Private protective services profession defined.
§ 74C-4. Private Protective Services Board established; members; terms; vacancies; compensation; meetings.
§ 74C-5. Powers of the Board.
§ 74C-6. Position of Director created.
§ 74C-7. Investigative powers of the Secretary of Public Safety.
§ 74C-8.1. Criminal background checks.
§ 74C-9. Form of license; term; renewal; posting; branch offices; not assignable; late renewal fee.
§ 74C-10. Certificate of liability insurance required; form and approval; suspension for noncompliance.
§ 74C-11. Probationary employees and registration of regular employees; unarmed security guard required to have registration card.
§ 74C-12. Denial, suspension, or revocation of license, registration, or permit; duty to report criminal arrests.
§ 74C-13. Armed licensee or registered employee required to have firearm registration permit; firearms training.
§ 74C-14: Repealed by Session Laws 2009-328, s. 11, effective October 1, 2009.
§ 74C-15. Pocket identification cards issued to licensees and trainees.
§ 74C-18. Reciprocity; temporary permit.
§ 74C-20. Repealed by Session Laws 1983, c. 673, s. 9, effective July 1, 1983.
§ 74C-21. Law enforcement officer provisions.
§ 74C-23. Acquisition or change of ownership or control of licensed firm, association, or corporation.
§ 74C-24. Reserved for future codification purposes.
§ 74C-25. Reserved for future codification purposes.
§ 74C-26. Reserved for future codification purposes.
§ 74C-27. Reserved for future codification purposes.
§ 74C-28. Reserved for future codification purposes.
§ 74C-29. Reserved for future codification purposes.
Article 2 - Private Protective Services Recovery Fund.
§ 74C-30. Private Protective Services Education Fund created; payments to Fund; management; use of funds.
§ 74C-31: Repealed by Session Laws 2009-328, s. 14, effective October 1, 2009.
§ 74C-32: Repealed by Session Laws 2009-328, s. 14, effective October 1, 2009.
§ 74C-33: Repealed by Session Laws 2009-328, s. 14, effective October 1, 2009.


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Patricia A. Savage graduated from U.C. Berkeley’s Rhetoric program with Honors in 1999. After attending Berkeley, Ms. Savage attended Santa Clara University School of Law where she was awarded Best Oral Advocate during her first year. She also served as Secretary of Santa Clara’s Environmental Law Society; was a Member of Governing Board of National Association of Environmental Law Societies and a selected participant in the International Environmental Moot Court Competition, Fla. (2001). Ms. Savage spent her final year of Law School as a visiting student at McGeorge School of Law in Sacramento.
For the past eight years, after starting the practice of law, Ms. Savage has been primarily engaged in employment and class action law with a focus on wage and hour issues, including active litigation in the following areas: Misclassification, Overtime, Meal and Rest Period Violations, Business Expense Reimbursement, Computer Professional Exemptions and On-Call time. Her litigation experience also includes individual allegations re: National Origin Discrimination, Age Discrimination, Race Discrimination, Disability Discrimination, Sexual Harassment, Wrongful Termination, Retaliation, violations of the California Family Rights Act, hearings before the Employment Development Department, Experience with filing with the Equal Employment Opportunity Commission, the Fair Employment and Housing Act and the Private Attorneys’ General Act; and litigation involving skilled nursing facilities regarding allegations of understaffing and elder abuse.
She is also a contributing attorney to employer defense in the provision of articles regarding evolving wage and hour issues in the workplace, including updated Fair Employment and Housing legislation and new rulings related to misclassification of employees. Ms. Savage’s active litigation includes direct involvement in some of the largest employment class actions in California in the past five years in courts throughout Northern and Southern California, including: Ferris v. Inter-Con Security Systems, Harway v. Hertz Local Edition Corporation, LaChapelle v. Davita Inc., Total Renal Care, Inc Pantalion v. Ross Stores, Jacobs v. Genesco, Inc.Sorenson v. Petsmart, Inc. and Cicero v. Direct TV, Inc. Ms. Savage has served as ‘Of Counsel’ with the Bohm Law Group, a firm specializing in the representation of employees and in trial work, from January 2013 to April of 2014.
Ms. Savage is admitted to practice in all California courts including the Northern, Central, and Eastern Federal District Court. Attorney Savage teaches remedies at the Cal Northern School of Law. Ms. Savage is member of the Butte County Women Lawyer’s and Judge’s Association and the current Vice-President of the Butte County Bar Association.


J. D. Rouse and Wm. Grant, for plaintiff in error.
Asst. Atty. Gen. Maury, for defendant in error.
This is an information in several courts, under section 3372 of the Revised Statutes, for the forfeiture of the tobacco, machinery, tools, and materials in a tobacco manufactory, for violations of the internal revenue laws. The property was released upon the claimant's giving a bond to abide the final decree. The claimant demurred to the information, as not setting forth any facts warranting the seizure or forfeiture of the property. The demurrer was overruled, the claimant filed an answer, and, upon a trial, a verdict was returned in this form: 'We, the jury, find a verdict for the government, evaluating the goods and machinery seized at a sum of one thousand dollars.' The claimant moved, in arrest of judgment, that several of the counts were insufficient, and that the verdict was general upon all the counts, and was vague and uncertain, and not responsive to the issue. The motion was overruled, and judgment rendered for the United States, and the claimant sued out a writ of error.
Informations under the revenue laws for the forfeiture of goods, seeking no judgment of fine or imprisonment against any person, are not strictly criminal cases, in which the decisions of the circuit court are final, unless a division of opinion is certified; but they are civil actions, of which this court has jurisdiction in error, without regard to the sum or value in dispute. Rev. St. § 699; Pettigrew v. U. S. 97 U. S. 385. Yet, as has been expressly adjudged, they are so far in the nature of criminal proceedings as to come within the rule that a general verdict upon several counts, seeking in different forms one object, must be upheld if one count is good. Clifton v. U. S. 4 How. 242, 250. As one of the counts in this case is admitted to be good, it is unnecessary to consider the objections taken to the other counts.
The verdict, though expressed in bad English, clearly manifested the intention and finding of the jury upon the issue submitted to them, and the court rightly gave judgment upon it. Rev. St. § 954; Parks v. Turner, 12 How. 39, 46; Lincoln v. Iron Co. 103 U. S. 412.