Wasserman's Appellate Summaries

May 19, 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.

Maini v INS
Case No. 98-70894
U.S. Court of Appeals for the 9th Circuit

IMMIGRATION-FACTS SUPPORTING GRANTING OF ASYLUM-SPECULATION BY BIA
The Maini families claimed that when they resided in their native country of India they were subject to continued harassment and beatings by the Communist Party Marxist because of their mixed marriage, Hindi and Sikh. The BIA speculated that since the CPM was composed of persons of diverse religious groups that they were not persecuted on account of religion. Their applications for asylum and withholding of deportation were denied.
HELD: An applicant for asylum can obtain relief under the asylum statute if the person can show past persecution. If an asylum applicant demonstrates past persecution, that person is entitled to a rebuttable presumption of a well-founded fear of future persecution. To rebut this presumption, the INS must show by a preponderance of the evidence that, since the time the persecution occurred conditions in the applicant's country of nationality have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted. A person can show a subjectively genuine and objectively reasonable well-founded fear of future persecution. The subjective element may be satisfied by credible testimony that he genuinely fears persecution. The asylum seeker can meet the objective test by presenting evidence in the record of facts that would support a reasonable fear of persecution. An alien must satisfy a more stringent standard for withholding of deportation than for asylum. If the petitioner shows by a clear probability that he would be persecuted in his home country, the Attorney General must withhold deportation. On review of the record the Court held that no reasonable factfinder could conclude that the CPM's treatment of the Mainis did not constitute persecution. The fact that the CPM consists of persons with diverse religious beliefs is not a basis to conclude that religion cannot be the basis for persecution. It has been recognized that there are institutions that can and do tolerate diversity while at the same time opposing intermarriage. The BIA conclusion that persecution on account of religion was not shown is not supported by substantial evidence. The reference by the Mainis to the CPM as gangsters was misinterpreted by the BIA, It is clear that the reference to gangsters was an alternate way of the Mainis referring to the CPM. The BIA erroneously denied their request for asylum and withholding of deportation. Petition granted. Reversed and remanded.


Chantal Coprich v Superior Court / Liberty Mutual Insurance
Case No. B137691
California Court of Appeal, Second District, Division 3

PERSONAL INJURY-INTENTIONAL AND NEGLIGENT SPOLIATION OF EVIDENCE
Coprich Sr. was driving with his family when a tire blew out, resulting in injuries to family members and killing one of his children. Coprich asked Board Ford and Liberty Mutual, to preserve the vehicle for use as evidence. When Coprich sought to have the vehicle examined he was advised the vehicle could not be found and had probably been sold, The complaint alleged causes of action for negligence, breach of warranty, and strict liability against Board Ford and intentional and negligent spoliation of evidence against Liberty Mutual and Board Ford. The defendants motion for judgment on the pleadings against the intentional and negligent spoliation cause of action was granted.
HELD: There is no tort remedy for intentional spoliation of evidence. This compels the conclusion that there is no tort remedy for negligent spoliation. Affirmed, with instructions that the trial court grant the plaintiffs leave to amend the complaint to allege a cause of action for breach of a contractual duty to preserve evidence.


Walters v Superior Court / Ubina
Case No. G026062
California Court of Appeal, Fourth District, Division Two

CRIMINAL-EX PARTE ORDER WITHOUT NOTICE-DUE PROCESS-ORDER TO ALLOW DEFENSE EXPERT TO PERFORM BALLISTICS TEST
The order was issued without notice to the District Attorney or the City Attorney of Santa Ana. It directed the police department to allow a defense expert to perform a ballistics test in the department's laboratory. The court further ordered the department not to advise anyone except the defense of the testing or the name of the party doing the testing until the preliminary hearing or October 4, 1999, whichever came earlier. The city attorney's application to vacate the order or lift the gag order to permit notification of the district attorney was denied.
HELD: Before trial or an appropriate noticed motion and hearing, physical evidence collected by the prosecution or the defense does not belong to the court, even where the defense turns it over directly to a judge or preliminary hearing magistrate. Such evidence is subject to seizure by the prosecution by means of a search warrant. The request for the ex parte order and the order itself were in clear violation of Penal Code. It should not be necessary to remind the alternate defender about basic due process, notice and an opportunity to be heard; but apparently we must. The district attorney is entitled to fundamental due process of law. Such orders are unauthorized and unlawful. Peremptory writ issued to vacate the order of the court to allow test.


Thaler v Household Finance
Case No. A088570
California Court of Appeal, First District, Division Five

REAL PROPERTY-PRIORITY OF HOMEOWNERS ASSOCIATION LIEN ON CONDOMINIUM-WHEN LIEN MAY BE CREATED BY HOMEOWNER ASSOCIATION RECORDED CONDITION COVENANTS AND RESTRICTIONS
In 1998, Thaler purchased a condominium at a non-judicial foreclosure sale held pursuant to an assessment lien that had been recorded on the property. The record of title reflected: (1) a declaration of Covenants, Conditions, and Restrictions of the Heritage Homeowners Association originally recorded in 1984 and amended and re-recorded in 1985; (2) a second deed of trust in favor of Household's predecessor recorded in 1992; and (3) a notice of delinquent assessment recorded by Homeowners in October 1997. Thaler asserts that the foreclosure sale eliminated Household's lien. Household's demurrer to Thaler's complaint to quiet title was sustained.
HELD: The Civil Code provides that Homeowners may enforce and foreclose any liens created by the CC&R's by private power of sale. The CC&R's further provide that the assessment lien shall be subordinate to any recorded first mortgage or first deed of trust, but they are otherwise silent with respect to their priority over other recorded conveyances. California follows the "first in time, first in right" system of lien priorities. The CC&R's in this case also provided that the property was part of a project subject to the provisions of the "California Condominium Act and that enforcement of any lien resulting from an assessment would be controlled by former section 1356, as that section might thereafter be amended. Section 1356 provided that the assessment shall be and become a lien upon the condominium assessed when the management body causes to be recorded with the county recorder of the county in which such condominium is located a notice of assessment. The currently amended section 1366 continues the provision that a debt of a condominium owner becomes a lien on the owner's interest upon the recording of a notice of delinquent assessment. Affirmed.

Wasserman's Archived Appellate Summaries