Peterson

Media Services, Inc. v. Peterson

Good Law
51 F. App'x 207
United States Court of Appeals for the Ninth CircuitNovember 12, 2002Nos. 01-17366, 01-17553; D.C. Nos. CV-00-05925-AWI/DLB, CV-00-05925-AWICalifornia612 words

Opinion

Lead Opinion

MEMORANDUM **

Because the parties are familiar with the facts, we do not detail them.

Proof of causation for an allegation that an attorney’s failure to appeal constituted malpractice requires a showing that the appeal would have resulted in reversal. Kurinij v. Hanna & Morton, 55 Cal.App.4th 853 , 64 Cal.Rptr.2d 324, 331 (1997). To determine that issue, we must “address[] the subject as though [we] were sitting as a [California] Court of Appeal.” Id.

The district court properly employed two standards of review. First, the district court reviewed for substantial evidence and abuse of discretion the state *208 court’s decision to sever the illegal portions of the contract. Second, the district court reviewed de novo which law should be applied to cure the illegal provision. These standards comport with California law. See Armendariz v. Foundation Health Psychcare Servs., Inc., 24 Cal.4th 83 , 99 Cal.Rptr.2d 745, 773-75 , 6 P.3d 669 (2000); Keene v. Harling, 61 Cal.2d 318 , 38 CaLRptr. 513, 515-17, 392 P.2d 273 (1964); Dunkin v. Boskey, 82 Cal.App.4th 171 , 98 Cal.Rptr.2d 44, 61-62 (2000).

Applying the FCC’s 1998 regulations did not have a retroactive effect. The use of the 1998…

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