Wasserman's Appellate Summaries
May 26, 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 recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, 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.
United States v. Alameda Gateway
Case No. 99-15642
U.S. Court of Appeals for the Ninth Circuit
CREAL PROPERTY-REGULATION OF NAVIGABLE WATERS BY ARMY CORP OF ENGINEERS-REMOVAL OF OBSTRUCTION TO NAVIGABLE WATERWAY
United owned waterfront property in Oakland Bay. Between 1941 and 1943 it dredged the property. United then constructed the two piers without a permit. The property was later conveyed to Alameda. The Army Corps of Engineers requested that Alameda remove the piers in order to create a turning area for larger ships. When Alameda refused the Army Corps of Engineers removed portions of Gateway's piers pursuant to its authority under the Rivers and Harbors Appropriation Act. The Corp sued to recover the cost of removal. Gateways motion for summary judgment was denied and the Corp's summary judgment motion was granted.
HELD: Ordinarily, the denial of summary judgment is not a final order and is unappealable. An order denying summary judgment is reviewable when it is coupled with a grant of summary judgment. The power of the United States to regulate navigable waters is grounded in the Commerce Clause of the Constitution. The evidence in the record supports the presumption that Alameda's piers were an obstruction to the navigable capacity of the Harbor and within the regulatory power of the RHA. Supreme Court precedent suggests that the Corps may perform the removal work itself and then collect the costs of such work from private parties even though the RHA does not expressly authorize such a remedy. The RHA allows removal of structures that were once erected lawfully but subsequently found to be obstructions. A Corp Engineering regulation was not binding. Affirmed.
Berman v. HealthNet
Case No. B125182
California Court of Appeal, Second District, Division Seven
INSURANCE-WAIVER OF RIGHT TO ARBITRATION BY ENGAGING IN EXTENSIVE DISCOVERY
Peter had health insurance through his employment. He chose a medical plan offered through Health Net, and signed an enrollment form which included his agreement, by enrolling in a medical plan, to have any dispute decided by arbitration in lieu of a jury or court trial. There were problems in getting HealthNet to approve appropriate treatment and Berman sued HealthNet and some individual doctors. HealthNet appeared in the action, demurred, and thereafter conducted extensive discovery. The attorneys for the parties signed a stipulation that there was no waiver of the right to demand arbitration. The subsequent petition of HealthNet to arbitrate was denied, on the ground that there could be inconsistent rulings between the individual doctors and HealthNet. Subsequently Berman settled with the individual doctors and HealthNet renewed its motion to compel arbitration. The motion was denied on the grounds HealthNet had waived the right to arbitrate by engaging in extensive discovery.
HELD: While in general arbitration is a highly favored means of settling disputes a trial court may deny a petition to compel arbitration if it finds the moving party has waived that right. An appellate court may not reverse the trial court's finding of waiver unless the record as a matter of law compels a finding that no waiver occurred. Substantial evidence supports the trial court's implied finding of prejudice, and its consequent finding of waiver by HealthNet. Affirmed.
People v. Graves
Case No. C029964
California Court of Appeal, Third District
CRIMINAL-SENTENCING-APPLICATION OF ENHANCEMENT FOR PRIOR OFFENSE
Graves was convicted of a number of sexual offenses involving a child, including lewd and lascivious acts with a child under age 14 (Penal Code section 288, subdivision (a)). The sentence for count one was enhanced to 25 years to life, pursuant to section 667.61, subdivisions (a) and (d)(1), by reason of a prior conviction of section 288, subdivision (a). The sentence was enhanced again - doubled to 50 years to life - under the second strike provisions of section 667, subdivision (e)(1), by reason of the same prior conviction.
HELD: Penal Code section 667, subdivision (e)(1), provides that if a defendant, convicted of a felony, has one prior serious felony conviction, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. Section 667.61 provides that a person convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) shall be punished by life imprisonment without release on parole for 25 years. Since a violation of section 288, subdivision (a), is a serious felony under section 667 (§§ 667, subd. (d)(1), 1192.7, subd. (c)(6)), every case of this type comes within the recidivist provisions of both sections 667.61 and 667. Subdivision (f) of section 661.67 plainly says that the circumstances which give rise to punishment under section 667.61 shall be used as the basis for imposing punishment rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty, The penalty in fact is vastly greater under section 667.61. Under section 667, subdivision (e)(1), the penalty for violation of section 288, subdivision (a), with a prior conviction for that offense, would be a maximum of 8 years, doubled to 16 years. Under section 667.61, subdivision (a) the penalty goes to life imprisonment without release for 25 year It is apparent the Legislature intended to increase the punishment for the circumstances assayed in section 667.61, subdivisions (a) and (d)(1) by substantially increasing (more than tripling) the punishment otherwise imposed under section 667. The sections are not cumulative. The double punishment imposed under section 667was stricken and the aggregate punishment of 45 years 4 months to life was determined to be the proper penalty.
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