Wasserman's Appellate Summaries

May 18, 2000
By Lawrence Wasserman, Esq.

Netlaw Libraries welcomes attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the most recent decisions from the U.S. Supreme Court, the Ninth Circuit Court of Appeals, the California Supreme Court, and the six California appellate districts, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.

Tedori v USA
Case No. 98-56-049
U.S. Court of Appeals for the 9th Circuit

TAXATION-DOMESTIC INTERNATIONAL SALES CORPORATION-ALLOWABLE DEDUCTIONS
Minor modification of opinion filed May 1, 2000. Does not effect the judgment.


Bonta v Baker
Case No. D033234
California Court of Appeal, Fourth District, Division 1

ORDER
Minor modifications to opinion filed April 27, 2000. Does not effect the judgment.


Rick's Electric v California Occupational Safety and Health Appeals Board
Case No. CO32121
California Court of Appeal, Third District

OTHER-OSHA VIOLATION-WHEN VIOLATION WILLFUL
Rick's Electric is a general electrical contractor. In 1994 and 1995 Rick's was cited for three OSHA violations of safety orders. Rick's challenges the last citation, in which an employee received an electric shock and suffering severe injuries. The citation designated this violation not only as "serious," but also as "willful." It assessed a penalty in the amount of $40,000. The Appeals Board upheld the citations. The trial court denied Rick's petition for mandamus.
HELD: Under the regulations there are two alternate tests for determining whether a violation is willful. The first test requires the Division to prove that the employer committed an intentional and knowing, as contrasted with inadvertent, violation, and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law. The second and alternate test requires the Division to prove the employer, even though not consciously violating a safety law, was aware that an unsafe or hazardous condition existed and made no reasonable effort to eliminate the condition. "Willfulness" in the context of a regulatory statute imposing civil penalties does not imply a showing of evil purpose. It relates to someone who either intentionally disregards the statute or is plainly indifferent to its requirements. The Division presented evidence demonstrating the employer had not just constructive knowledge, but actual knowledge of the Division's safety orders requiring Rick's to treat all electrical equipment such as the cables as energized until tested or proven otherwise. Rick's neither tested the cable to see if it was in fact energized, or assigned and experienced, trained and properly equipped person to work on the cable. Substantial evidence supports the administrative decision. Affirmed.


In re A.C.
Case No. J151587
California Court of Appeal, Fourth District, Division One

JUVENILE-PETITION TO RELEASE AND DESTROY JUVENILE DEPENDENCY FILES-NO PARTIAL DESTRUCTION OF FILES AUTHORIZED-WAIVER OF CONFLICT OF INTEREST-NON SURVIVABLE RIGHT
Richard and Christobell J., who never married, had four children, all girls, A.C., M.C., S.C., and Stefany. Richard later married Sharon C., in 1985. In October 1985, Sharon gave birth to Shannon. Richard and Sharon divorced in 1989. In December 1987, Sharon first complained to the San Diego County Health and Human Services Agency that Richard sexually molested the girls. Richard entered nolo contendere pleas as to all five girls. In 1998, A.C., M.C., and S.C. petitioned the court to release and destroy their juvenile dependency files. Richard had become an attorney in 1994 and represented them. The court determined that because A.C. and M.C. were adults, they could waive any conflict of interest in Richard's representation of them. Because S.C. was 16, the court appointed counsel for her and she then also waived any conflict of interest. The trial court granted the petition as to A.C., M.C., and S.C, denied the petition as to a deceased sister, Stefany because the right to petition for the destruction of a juvenile court file is a legal, and not a property right. The court also denied the request to destroy any reference to A.C., M.C., or S.C. in Shannon's file because Shannon did not join in the action.
HELD: The statute provides that after five years from the date on which the jurisdiction of juvenile court over a minor is terminated, the probation officer may destroy all records and papers in the proceedings concerning the minor. Any juvenile court receiving the written notice shall release the court record to the person who is the subject of the record five years after the jurisdiction of the juvenile court over the person has terminated. The statute only gives permission to petition to the person who is the named minor in a given petition and over whom jurisdiction has been terminated in that given petition to seek relief. . The statute does not provide for the redaction of words, sentences, or paragraphs of a third party's record. Shannon is still a minor and did not receive notice of the proceedings. Shannon's file should not be purged of all reference to her siblings because of Richard's unwaivable conflict in representing Shannon or any of her sisters. The representative of the deceased sister, Stefeny did not acquire a property right to destroy her juvenile dependency files. Affirmed.

Keller v Chowchilla Water District
Case No. F031112
California Court of Appeal Fifth District

REAL PROPERTY-PROPOSITION 218-STANDBY CHARGE FOR RIGHT TO RECEIVE WATER CLASSIFIED AS ASSESSMENT-EXEMPTION FROM BALLOTING FOR ASSESSMENT FOR FINANCING EXPENSES FOR WATER
Keller and other joined plaintiffs own or lease land within the boundaries of the Chowchilla Water District. Many of the parcel owners are pistachio growers. In 1996 Proposition 218, also known as the Right to Vote on Taxes Act, was passed. In 1997, the District established a standby charge of $52.50 per acre to be levied on all property capable of receiving water from the District. The standby charge was levied even on property owners who did not and had not used District water. Judgment was for Keller in the trial court. HELD: Proposition 218 required sending of a ballot to the owners of parcels that were to be assessed, giving the owners an opportunity to vote on whether they want the proposed assessment. One of the exceptions to the required ballot is when an assessment is imposed exclusively to finance the capital costs or maintenance and operation expenses for water. Reversed.