Wasserman's Appellate Summaries

May 22, 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.

Galan v Wolfriver
Case No. B129512
California Court of Appeal, Second District, Division Three

CIVIL-PROCEDURE-DISMISSED DEFENDANT AS PREVAILING PARTY
Galan brought suit against various defendants who owned a substandard residential building. Wolfriver bought the building, with the serious habitability problem and was added as a defendant. When Galan settled with the former owners Wolfriver was also dismissed from the lawsuit. Wolfriver's motion for attorney fees was denied.
HELD: The Civil Code provides that any landlord who demands or collects rent under certain conditions is liable to the tenant or lessee for actual and special damages. If suit is brought the prevailing party shall be entitled to recovery of reasonable attorney's fees in an amount fixed by the court. The California Code of Civil Procedure provides that a prevailing party in an action includes a defendant in whose favor a dismissal is entered. The California Code of Civil Procedure definition of prevailing party cannot be imported into the Civil Code provision for attorney fees, which does not define prevailing party. The trial court had discretion to determine whether Wolfriver was the prevailing party on a practical level, and properly found Wolfriver was not the prevailing party for purposes of recovering attorney fees under the Civil Code. The voluntary dismissal of their action against Wolfriver did not confer prevailing party status upon Wolfriver for purposes of recovering attorney fees pursuant to Civil Code. Affirmed.


Huson v Ventura
Case No. B132654
California Court of Appeal, Second District, Division Six

REAL PROPERTY-ASSESSMENT BY ADDING IMPROVEMENT BOND LIEN TO PRICE OF REAL PROPERTY PURCHASED-RETROACTIVE EFFECT OF STATUTORY CHANGE
Huson bought a home in Simi Valley in 1995 for a purchase price of $176,000, and assumed the obligation to pay a $12,086 improvement bond lien imposed by the City. The County reassessed Huson's home at $188,350, to add the improvement bond. The resulting increase in tax was approximately $191.56. Huson sought reassessment, on the ground the improvements funded by the bond issue were not on his property. Reassessment was denied. While his action was pending, the Legislature amended the section governing the method for assessment of real property. The amendment created a rebuttable presumption that the amount of the improvement bond is included in the purchase price. It placed the burden on the assessor to rebut the presumption that the purchase price reflects fair market value. Huson sued and judgment was for the County.
HELD: When the assessor utilizes an approved valuation method, his factual findings and determinations of value based upon the appropriate assessment method are presumed to be correct and will be sustained if supported by substantial evidence. If the underlying valuation methodology is challenged, however, the issue becomes a question of law subject to de novo review both by the superior court and on appeal. Before the amendment of the statute it was common practice for assessors to add the lien amount to the purchase price to determine a property's assessed value. The affected homeowner was taxed on both the fair market value of the property plus the amount of the bond. Enactments are presumed to operate prospectively, unless there is an express declaration of retroactivity. An exception exists, when the amendment merely clarifies, rather than changes, existing law. Application of the amendment to transactions predating the enactment is not retrospective, since the law is not changed, just clarified. Judgment vacated and remanded.


In Re Lucero, L.
Case No. S075342
Supreme Court of California

FAMILY LAW-CHILD INCOMPETENT TO TESTIFY AT JURISDICTIONAL HEARING-USE OF INCOMPETENT THREE YEAR OLD CHILD'S STATEMENTS TO THIRD PARTIES
Lucero L. was born in 1994. In addition to Lucero, her mother Yolanda E. has six other children. A dependency petition was filed when allegations were made that the step father had molested Lucero, Lucero's three half sisters and had raped another. The three half sisters recanted their previous statements. According to the social worker's report, the sisters said they had lied about the molestation because they did not like the stepfather, Otilio. At the jurisdictional hearing the court found three-year-old Lucero incompetent to testify, but Lucero's statements to the social worker and police were admitted. The Court of Appeal affirmed.
HELD: In the child dependency exception to the hearsay rule, providing that the out-of-court statements of children who are subject to juvenile dependency hearings may be admitted in that proceeding if the statements show particular indicia of reliability, if the statements are corroborated, and if interested parties have notice that the statements will be used. The 1996 amendment to the Code provided that a social study and hearsay evidence contained in it is admissible and constitutes competent evidence on which a finding of jurisdiction may be based. Hearsay statements contained in social studies should be admissible even if they do not meet the requirements of the child dependency exception and even if the minor is incompetent to testify. Affirmed.


In Re Michael M./ Marlene M v The Superior Court
Case No. B137539
California Court of Appeal, Second District, Division Four

Marlene M. is the mother of Michael M., born in 1999. She is also the mother four other children, who have been detained by the Department of Child and Family Services. At the detention hearing the DCFS report stetted that Marlene had failed to complete family reunification services ordered in 1998, in connection with the detention of the four half-siblings, Marlene did not have a stable residence or job and may have developmental problems. Michael M. was ordered detained, reunification services were ordered to be provided and a psychological evaluation of Marlene was ordered. The evaluation reported existing emotional or mental problems which renders her incapable of safely parenting the minor. At the disposition hearing the court ordered that reunification services be denied to petitioner and set a hearing for a permanent plan.
HELD: The statute provides that reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence that there was a previous failure to reunify with a sibling. The trial court did not abuse its discretion in concluding that no reunification services be provided to petitioner.


People v Kinkead
[Certified for publication with the exception of part 4.]
Case No. E024597
California Court of Appeal, Fourth District, Division Two

CRIMINAL-CHILD ENDANGERMENT-INSTRUCTION FOR WILLFULNESS-SENTENCE ENHANCEMENT FOR CHILD ENDANGERMENT Kinkead was under the influence of drugs and alcohol when he went to sleep on a couch with his three-year-old daughter. The daughter was found the next morning suffocated under his body. Kinkead was convicted of child endangerment and it was found true the that it resulted in the victim's death. The jury was instructed that, when a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful. In bifurcated proceedings, Kinkead pleaded guilty to two counts of possessing methamphetamine and related drug charges.
HELD: The child endangerment statute provides that it is a crime when, under circumstances or conditions likely to produce great bodily harm or death, a person having the care or custody of any child, willfully permits that child to be placed in such a situation where his or her person or health is endangered. The failure to include the willful requirement as part of the instructions did not prejudice Kinkead. The criminal negligence required for child endangerment is or are aggravated, reckless or flagrant and which is or are such a departure from what would be the conduct of an ordinarily prudent, careful person under the circumstances. The enhancement for such endangerment was proper under the statute. Affirmed.

Mendenhall v National Transportation Safety Board
Case No. 98-70211
U.S. Court of Appeals for the Ninth Circuit

OTHER-AWARD OF ATTORNEY FEES IN PROCEEDINGS UNDER THE EQUAL ACCESS TO JUSTICE ACT-CAP ON FEES FOR PRE LITIGATION ADMINISTRATIVE PROCEEDINGS-USE OF MARKET RATE IN DETERMINING ATTORNEY FEES.
This case had been remanded by the Ninth Circuit to the National Transportation Safety Board with instructions to award the Mendenhall attorneys' fees, because the Federal Aviation Administration was not substantially justified in its enforcement proceedings. The NTSB noted that the Equal Access to Justice Act has different provisions for attorneys' fees that are incurred during administrative enforcement proceedings and those that are incurred during judicial proceedings, but both impose a cap on attorneys' fees. The attorney fee rate was set at $150 per hour, the rate billed the client, rather than the market rate of $300 per hour, and a portion related to the administrative proceedings were reduced.
HELD: The EAJA provides that prevailing parties in certain adversary proceedings may recover attorneys' fees from the government. The Court conceded that it had erred in ordering the award of attorney fees incurred for the administrative proceedings at a reasonable market rate. The statute provides for a different cap rate for administrative proceedings before suit is filed and those incurred thereafter. The Court however found that it lacked jurisdiction to reverse and to remand the NTSB's award for recalculation using the correct rate, because the government elected not to file a cross-petition for review of the NTSB's order to preserve the issue here and the award could not be reduced. Mendenhall's petition was granted in part and denied in part, and remanded.

Wasserman's Archived Appellate Summaries