Wasserman's Appellate Summaries
May 23, 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 some of the recent and interesting decisions from 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.
Echazabal v Chevron
Case No. 98-55551
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-AMERICANS WITH DISABILITIES ACT-REFUSAL OF EMPLOYMENT BECAUSE OF THREAT TO HEALTH OF EMPLOYER
Echazabal was employed by various contractors and first began working at Chevron's oil refinery in California in 1972. In 1992 Echazabal application to work directly for Chevron on the same coker unit location was denied, after a required examination showed liver damage, probably due to materials he was exposed to at the coker unit. Echazabal was then diagnosed as having asymptomatic, chronic active hepatitis C. He continued doing the same work for contractors to Chevron. In 1995 he again applied for a job with Chevron, with the same medical result, but Chevron wrote his employer that he should not be placed in contact with the chemicals from the coker unit. Echazabal filed suit under the Americans with Disabilities Act. Summary judgment was for Chevron.
HELD: A defense to an action under the ADA is that an employer may impose, as a qualification standard a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. By specifying only threats to other individuals in the workplace, the statute makes it clear that threats to other persons, including the disabled individual himself, are not included within the scope of the defense. Performing the work at the coker unit without posing a threat to one's own health or safety is not an essential function of the coker unit job. Reversed.
Belayneh v INS
Case No. 98-70941
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-IMPUTATION OF FORMER SPOUSE'S POLITICAL VIEWS TO PETITIONER FOR ASYLUM
Tsehay Belayneh, a native and citizen of Ethiopia, married Bekele Ibsa in 1967. They have four children, including petitioner Esey Bekele, whose claim derives from his mother's. Bekele Ibsa was a colonel under the government of Haile Selassie. In 1975 a new communist government imprisoned Colonel Bekele for a year because of his army background and then forcibly retired him from service. In 1981 the New regime recalled Colonel Bekele into the army to help put down a rebellion, and later to work for internal security forces. Tsehay stayed in the service as the only means of supporting the family. Because of this "difference in political opinion, as Belayneh put it in her asylum application, the couple divorced in 1984. Her petition was denied.
HELD: An alien is eligible for asylum and may be granted asylum at the discretion of the Attorney General if the alien establishes that she is a statutory refugee. A refugee is an alien who is unable or unwilling to return to the country of her nationality "because of persecution or a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group, or political opinion. Substantial evidence supports the BIA's conclusion that Belayneh has not established a reasonable fear of future persecution on account of a protected ground. The record is devoid of any suggestion that the allegedpersecutors have imputed to Belayneh her former husband's views. The two have been divorced for more than fifteen years and the government has twice changed in theinterim. Affirmed.
Moreno v INS
Case No. 98-71463
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-HAZARDOUS NEUTRALITY AS BASIS FOR ASYLUM
Moreno worked as an assistant nurse at a local health unit in Perquin, El Salvador. In 1980, guerrilla forces into her clinic and took medicine from her at gunpoint. In 1981 the guerrilla forces took over Perquin and demanded that she join them. She refused and told them her rule was to help anybody and she did not belong to any party. Later, when she refused again her house was bombed and she was threatened with further reprisals for refusing to assist the guerillas. She fled to the U.S. The immigration judge denied asylum and withholding of deportation and granted voluntary departure. The BIA affirmed.
HELD: An applicant may qualify as a refugee if she can show she was a victim of persecution or has a well-founded fear of persecution upon return to her home country. There must be a shoving that the persecution was or will be on account of one of the categories protected under the statute. The Ninth Circuit follows the doctrine of "hazardous neutrality," in which a lack of political opinion may constitute a political opinion for purposes of the INA. The record contains no evidence that Moreno expressed her political neutrality in the eight years between the incident in Perquin and the retaliatory action in 1989. Under these circumstances we cannot conclude as a matter oflaw that the immigration judge was unreasonable in finding that the guerrillas did not persecute Moreno under one of the specified categories. Petition denied.
Alaska v USA
Case No. 98-35310
U.S. Court of Appeals for the Ninth Circuit
GOVERNMENT-ALASKA STATEHOOD ACT AS PASSING TITLE TO LAND UNDER NAVIGABLE WATERS-EXCEPTION TO PRESUMPTION OF PASSING LAND TO NEW STATE
Alaska claims that title to the bed of the Kukpowruk River in northern Alaska passed from the federal government to the State of Alaska when Alaska became a State in 1959. Later substantial parts of the Kukpowruk River bed were conveyed to Alaska native corporations. The district court granted partial summary judgment to Alaska and allowed an interim appeal of the certified question of ownership.
HELD: The riverbed in issue lies within a tract of 48,800,000 acres that the federal government withdrew from sale, location, selection, and entry. There is a strong presumption that lands beneath navigable waters are held by the United States in trust for future states. To defeat the presumption it must be shown that Congress clearly intended to include land under navigable waters within the federal reservation; and Congress affirmatively intended to defeat the future State's title to such land. In this case the Alaska Statehood Act provided that lands that are owned by the United States and held for military purposes, including naval petroleum reserve were subject to Congress' control. The lands in question were in fact were being used for military purposes at the time of statehood. Certified questions answered and remanded.
People v Santana
Case No. B127238
California Court of Appeal, Second District, Division Three
CRIMINAL-IMPROPER INTERVENTION OF TRIAL JUDGE IN QUESTIONING WITNESSES
Santana had been present at the scene of an anticipated sale of nine pounds of methamphetamine and 10 months later in a search of his home, deputies found a triple bean Ohaus scale and $15,000 in cash was found in the sofa where Santana had been seated when the officers arrived. At the trial the judge intervened in questioning almost every witness and adopted the terminology of the prosecution in questioning. Santana was convicted of possession for sale of methamphetamine exceeding 10 kilograms by weight and possession for sale of cocaine.
HELD: Although the Court found the evidence to be sufficient to convict, it also found that the trial court erroneously failed to instruct on the concurrence of act and intent, and the trial court improperly intervened to such an impermissible extent in the trial. Reversed.
Maggio v Windward Capital Management
Case No. B134322
California Court of Appeal, Second District, Division Five
CIVIL-ENFORCEABILITY OF ARBITRATION CLAUSE
Windward entered into a written agreement with Maggio to manage her security portfolio. The management agreement contains an arbitration clause, providing for arbitration with the American Arbitration Association. Maggio filed a petition to compel arbitration and sought appointment of an arbitrator through ADR Services. Windward opposed the petition insofar as it sought appointment of an arbitrator through ADR Services. The trial court granted Maggio's petition.
HELD: The parties have agreed to arbitrate before the American Arbitration Association. The arbitration clause is unambiguous . A court has the authority to compel compliance with a method for selecting an arbitrator. Reversed.
Finley, as Trustee v Superior Court / Third Laguna Hills Mutual
Case Nos. E024743/E024843
California Court of Appeal, Fourth District, Division Two
OTHER-POWER OF HOMEOWNER ASSOCIATION TO MAKE CONTRIBUTION TO INFLUENCE POLITICAL ACTION-SUMMARY JUDGMENT REQUIREMENT FOR STATEMENT OF REASONS FOR DENIAL-BUSINESS JUDGMENT DEFENSE-LITIGATION COMMITTEE DEFENSE
United Laguna Hills Mutual and Third Laguna Hills Mutual are the homeowners associations for different portions of Leisure World, They made political contributions to support a measure to prevent development of the El Toro Air Station into a public airport.They used homeowner-paid assessments to make the contributions. Plaintiffs, who are members of the homeowners associations, challenge these contributions as ultra vires, illegal, and in violation of their constitutional rights to free speech and association. The trial court denied plaintiffs' motions for summary judgment and a preliminary injunction.
HELD: The Code of Civil Procedure provides that upon the denial of a motion for summary judgment the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion, which indicates that a triable controversy exists. In this case the trial court was well aware of the requirement; plaintiffs merely quibble with the sufficiency of its compliance. Relating to the merits of the summary judgment, the Corporations Code provides that, subject to any limitations contained in the articles or bylaws a corporation shall have all of the powers of a natural person, including, without limitation, the power to make donations for the public welfare or for community funds, hospital, charitable, educational, scientific, civic, religious or similar purposes. In light of this power the trial court correctly denied plaintiffs' motion for summary adjudication on the first cause of action. Plaintiffs were also not entitled to summary adjudication on the business judgment rule, or the special litigation committee defense rule. Affirmed the denial of the petition for a writ of mandate.
Wasserman's Archived Appellate Summaries
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