Wasserman's Appellate Summaries
May 24, 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.
Arco v Dept of Health
Case No. 99-36033
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-JURISDICTION-NO COMPLETE PREEMPTION OF STATE LAW BY COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT
ARCO Environmental Remediation brought suit in state court to obtain from the State of Montana documents relating to an environmental cleanup being conducted pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and to enjoin closed-door meetings between Montana and the federal Environmental Protection Agency. The case was removed to federal court and ARCO's motion to remand was denied.
HELD: Unless Congress expressly provides otherwise, a defendant may remove to federal court any civil action brought in a State court of which the district courts of the United States have original jurisdiction. If a case is improperly removed, the federal court must remand theaction because it has no subject-matter jurisdiction to decide the case. As a general rule, the presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. On its face, ARCO's complaint does not state a claim that arises under federal law. Montana law creates the causes of action for access to public documents and meetings. A plaintiff may defeat removal by choosing not to plead independent federal claims. Preempted state law claims may be removed to federal Court only in the rare instances where Congress has chosen to regulate the entire field. CERCLA does not completely occupy the field of environmental regulation. This suit is not related to the goals of the CERCLA cleanup. The district court did not have jurisdiction. Reversed and remanded.
Neptune Orient v Burlington
Case No. 98-17387
U.S. Court of Appeals for the Ninth Circuit
CIVIL-DAMAGES FOR LOSS OF GOODS IN TRANSIT-MARKET PRICE AT DESTINATION AS DAMAGES
Neptune shipped a container of shoes with Burlington. The shoes were lost in shipment. Neptune paid the wholesale value of the shoes, to Nike and sued Burlington for reimbursement. Neptune's motion for summary judgment for the value of the shoes was granted.
HELD: Nike did not declare the value of the cargo on the bill of lading. Neither Nike nor Neptune declared a value to Burlington nor paid higher freight rates as a result of the value of the cargo. Market value at destination" is the proper measure of the actual loss in a situation where, as here, the shipment is lost or destroyed. The wholesale price of pre-sold goods can serve as the proper measure of damages even when the shipment is destined for a warehouse or distribution center. Nike was unable to replace the damaged propertyand is entitled to the entirety of its actual loss which the district court correctly determined to be the market price at the destination. Affirmed.
Ontiveros-Lopez v INS
97-70752/97-71187/98-70877
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-PROCEDURAL REQUIREMENTS FOR MOTION TO REOPEN DEPORTATION HEARING ON GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL-EXCEPTION TO STRICT COMPLIANCE WITH PROCEDURAL REQUIREMENTS TO REOPEN DEPORTATION DECISION
Lopez is a Mexican citizen who became a lawful permanent resident of the United States in 1993, by marriage to a United States citizen. Lopez and his wife have two children who were born in the United States. He was arrested at a border checkpoint while having his undocumented sister in the car. The INS sought deportation for aiding and abetting his undocumented sister's attempted unlawful entry. This was admitted at the deportation hearing by his counsel, who then moved for relief from deportation on the basis of Lopez's marriage to a United States citizen. Lopez was ordered deported. Lopez then secured new counsel and moved to challenge the deportation order.
HELD: Lopez' counsel's motion was based on an obvious mistake of law. Under the clearly applicable law a person deported for alien smuggling is statutorily ineligible for relief from deportation and permanently inadmissible to the United States. A motion to reopen is the procedural vehicle through which a petitioner may bring, usually for the first time, an ineffective assistance of counsel claim before the BIA. The motion is generally subject to heightened procedural requirements relating to filing information to the prior counsel and filing of a complaint with the disciplinary authorities. Lopez's new counsel was unable to comply with these requirements. Lopez filed his first petition before he properly exhausted his ineffective assistance of counsel claim before the BIA. The BIA ignored counsel's declaration, attached to the motion to reopen, describing his diligent efforts to obtain the required materials and abused its discretion in denying the motion. The second petition was granted and remanded for consideration of ineffective assistance of counsel on the merits.
Pacific Indemnity v Bellefonte Insurance
Case No. D031786
California Court of Appeal, Fourth District, Division One
INSURANCE-EXCLUSION FOR PROPERTY ENTRUSTED TO THE INSURED-EXCESS ONLY CLAUSE-PRO RATA CLAUSE-EQUITABLE CONTRIBUTION PRINCIPLES
In 1996 some Environmental groups sued San Diego Unified Port District for declaratory relief, injunction and civil penalties, based on the District's failure to take appropriate protective measures for San Diego Ban. District tendered the defense of the action to Pacific and Bellefonte, who had issued Commercial General Liability policies to the District for the periods 1963 to 1974 and 1976 to 1979, respectively. Pacific accepted the tender but Bellefonte rejected it. Pacific's policies contain what is referred to as an "'excess only'" clause. Bellefonte's policies contain what is referred to as a "'pro rata'" clause, meaning that if there is other valid and collectible insurance, the insurer shall not be liable for more than its pro rata share of the loss After the District prevailed at trial, Pacific sued Bellefonte for reimbursement of defense costs. Pacific's motion for summary judgment was granted.
HELD: A liability insurer owes a duty to defend its insured when the claim creates any potential for indemnity. Any doubt as to whether the facts create a duty to defend is resolved in favor of the insured. Under the plain meaning rule an insured could reasonably assume the exclusion for property entrusted to the insured for storage or safekeeping, as contained in the Bellefonte property applied solely to personal property subject to a bailment or similar arrangement. Equitable contribution principles require proration of defense costs notwithstanding the "excess only" other insurance provision of Pacific's policies. Reversed the judgment, insofar as it awards Pacific the total amount of defense costs, and remanded the matter for further proceedings.
People v Guzman
Case No. G024131
California Court of Appeal, Fourth District, Division Three
CRIMINAL-INFERENTIAL COMMENTS BY PROSECUTION ON DEFENDANT'S FAILURE TO TESTIFY
Guzman rear-ended Hall while Hall was stopped at a traffic light. Guzman left the scene when Hall insisted on calling the police. Hall followed and when he cornered Guzman in a cul de sac, Guzman rammed Hall's car and left the scene again. Hall caught up with him again. This resulted in a fistfight and Guzman assaulting Hall with a hammer.Guzman was convicted of one count each of hit and run driving and assault with a deadly weapon. The jury acquitted Guzman of a second count of assault with a deadly weapon. During closing argument the prosecution commented inferentially on Guzman's failure to rebut testimony.
HELD: The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself. This right also extends to forbidding the prosecution from commenting on the accused's silence. The prosecutor in this case impliedly invited the jury to consider Guzman's failure to testify as proof that his actions were criminal. The prosecutor improperly commented on Guzman's failure to testify and such comments were not harmless beyond a reasonable doubt. Reversed.
Jang v State Farm Insurance
Case No. A085617
California Court of Appeal, First District, Division Two
INSURANCE-STATUTE OF LIMITATIONS ON CLAIM BASED ON POLICY-TORT CLAIM FOR CONSPIRACY AND BAD FAITH ARE BASED ON THE POLICY
The Stoniches owned a building that was subject to a first priority lien by Bay View Federal Bank, a second lien, held by Jang and third and fourth liens by others. The property was insured by State Farm. The building was severely damaged by a fire. At that time, the balance on the first mortgage was approximately $1.7 million, and the balance on Jang's second mortgage totaled $530,000 in principal and $52,470 in deferred interest. After the fire, respondent paid approximately $1.5 million to the Stoniches and Bay View to cover the fire loss. In 1991, State Farm issued a check payable to the Stoniches and Bay View for $145,456 in additional insurance proceeds. Thereafter, Bay View and Jang then entered into a forbearance agreement under which these proceeds were held by Bay View for Jang's benefit. Jang agreed to make the Bay View loan payments, provided that in the Event Jang foreclosed the additional insurance proceeds held in trust for Jang would be applied to the Bay View loan balance. Jang held a trustee's sale and was the successful bidder. Jang then sold the building and paid off the Bay View note balance. The Stoniches arbitrated their dispute with State Farm over the adequacy of the payments on the policy. Jang was advised of the arbitration. The arbitration resulted in additional award to the Stoniches. The Stoniches wound up in a suit with their attorneys and State Farm interpleaded the settlement payment. Jang the n cross-complained in the action for conspiracy and bad faith. State Farm's motion for summary judgment, on statute of limitations grounds was granted.
HELD: Under California law, all fire insurance policies must be on a standard form and, except for specified exceptions, may not contain additions thereto. This standard form provides that no suit or action for recovery of any claim shall be sustainable unless commenced within 12 months after the inception of the loss. The crux of her action is her claim that the arbitration agreement was structured so that she was denied payment of insurance proceeds allegedly due to her under the policy. Because the cross-complaint sought damages recoverable under the policy for a risk insured under the policy, the cross-complaint is an action under the policy. Affirmed.
People v. Rells
Case Nos. S080451
California Supreme Court
ORDER
Minor modification of opinion not effecting the judgment.
People v McCoy
Case Nos. B127097
California Court of Appeal, Second District, Division Five
ORDER
Modification of opinion not effecting the judgment.
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