Wasserman's Appellate Summaries

May 27, 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.

Spitzer v. The Good Guys
Case No. A086999
California Court of Appeal, First District, Division Two
(Certified for publication with the exception of parts IV and V.)

REAL 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.


Hassoldt v. Patrick Media Group
Case No. B113905
California Court of Appeal, Second District, Division Three
(Certified for publication with the exception of parts III, IV, V and VI.)

CIVIL-CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE BY PARTY TO ACTION-RETROACTIVITY OF OPINION THAT NO CAUSE OF ACTION FOR SPOLIATION BY A PARTY TO THE ACTION GENERALLY EXISTS
Judy and William Hassoldt own property on which they operate a preschool called Der Kindergarden. Patrick Media Group, Inc. is an outdoor advertising company, which purchased the assets and some of the liabilities of another outdoor advertising company, Foster & Kleiser. The Hassoldts sued Patrick for severely trimming a tree on their property, making it easier to see a Patrick advertising sign. Judgment was for the Hassoldts. The four special findings for the jury were, whether Patrick trimmed the tree, whether there was spoliation of evidence of the tree damage, and, as to both, whether it was done with fraud oppression or malice. The jury award did not specify which cause of action resulted in the damage award. A second verdict rendered was for punitive damages for spoliation of evidence.
HELD: In 1998 the California Supreme Court established that there is no tort remedy for the intentional spoliation of evidence by a party to the cause of action to which the spoliated evidence is relevant, in cases in which, the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action. The general rule is that judicial decisions are given retroactive effect . The fact that the Supreme Court had granted a hearing of the question a year before this case went to trial also argues against any reasonable belief in the continued existence of spoliation of evidence as a tort remedy. In this case retroactively will not unduly burden the administration of justice. Since the jury found by a preponderance of the evidence that Patrick was responsible for damaging the Hassoldts' tree and did so with oppression or malice, if no error existed with respect to the liability phase of the trial, we would reverse for a new trial on the issue of damages only. The fact is that the liability phase of the trial was infected with error. Reversed.


Hock v. Gordon-Hock
Case No. C029964
California Court of Appeal, Second District, Division Five

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.


People v. Randy G., a Minor
Case No. B133952
California Court of Appeal, Second District, Division Three

JUVENILE-SEARCH OF PUPIL BY SCHOOL SECURITY OFFICER-REASONABLE SUSPICION OF VIOLATION BY PUPIL
Randy G. was seen by a school security officer in an area not open to pupils. He was extremely nervous. A consensual search revealed a switchblade knife. His motion to suppress was denied. The Juvenile Court declared Randy G. to a ward of the court by reason of his violation of his possession of a locking blade knife on school grounds.
HELD: Searches of students by public school officials must be based on a reasonable suspicion that the student or students to be searched have engaged, or are engaging, in a proscribed activity that is, a violation of a school rule or regulation, or a criminal statute. There was cause for a reasonable suspicion under the facts. Affirmed.


Metropolitan Water District v. Imperial Irrigation District
Case No. B119968
California Court of Appeal, Second District, Division Five

OTHER-VALIDITY OF FIXED RATE OF PAYMENT FOR USE OF UNUSED WATER BY OWNER
State law mandates that the owner of a water conveyance system with unused capacity allow others to use the facility to transport water. The use of a water conveyance facility by someone other than the owner or operator to transport water is referred to as "wheeling." In return for wheeling, the water conveyance system owner is entitled to fair compensation. The MWD adopted a fixed rate of compensation per amount of water used as compensation. When parties objected, MWD filed for declaratory relief. Judgment was for the objecting parties.
HELD: The Metropolitan Water District could act as it did subject to defendants' right to judicial review pursuant to statute. Reversed and remanded.


Arab Monetary Fund v. Hashim
Case No. 98-17128
U.S. Court of Appeals for the Ninth Circuit

BANKRUPTCY-DENIAL OF CLAIM BASED ON FOREIGN JUDGMENT-COMITY-APPLICATION OF STATE LAW
Hashim was the first President and Director General of the AMF, an organization headquartered in Abu Dhabi, United Arab Emirates, which has been described as the Middle Eastern Islamic counterpart to the International Monetary Fund. In 1982 or 1983, Hashim defected to Canada. His entire family apparently emigrated to Canada with Hashim two years later. In 1988, the AMF filed civil actions against the Hashims in both Canada and England, jurisdictions in which the Hashims held substantial amounts of property. A substantial judgment was rendered against the Hashims in the English court. The Hashims then moved to Arizona and filed for protection under Chapter 7 of the Bankruptcy Code. The Bankruptcy Court disallowed the AMF's claim in the bankruptcies of the innocent family members. Shortly after the English court entered a default award of costs and fees to the AMF. The bankruptcy court disallowed the English court's award of costs and fees because the amount of the award was so disproportionate to the AMF's successful claims against the Debtors in the English litigation that the award was repugnant to American jurisprudence and not entitled to comity.
HELD: The validity of a creditor's claim against the bankruptcy estate is governed by the state law in force in the judicial district in which the bankruptcy is proceeding. Absent grave procedural irregularities or allegations of fraud a court should not impugn the lawfulness of the judgments of that judicial system from which our own descended. It is plain that Arizona law would not support the bankruptcy court's order denying comity to the English court's award of costs even if the award were to amount to $10 million. In any event, the award actually is less than one tenth of that sum, and the bankruptcy court's order simply cannot stand. Reversed and remanded.


United States v. Harrison
Case No. 99-10496
U.S. Court of Appeals for the Ninth Circuit

CRIMINAL-WHEN RIGHT TO ATTORNEY ATTACHES-PRE INDICTMENT REPRESENTATION BY ATTORNEY
Harrison was involved in a large scale international drug dealing operation. On orders he shot Estes in the head, killing him. Some months later, a federal grand jury began investigating the drug ring of which Harrison was a member. In 1996, the grand jury issued a subpoena for Harrison's testimony. In preparation for his grand jury appearance, Harrison hired a lawyer, Julie Traun, to represent him. At his grand jury appearance, Harrison invoked his Fifth Amendment privilege and refused to answer questions. The government then conferred use immunity on Harrison. In 1997 Harrison was indicted on charges of conspiring to distribute drugs and murdering a federal informant. The FBI arrested him, advised him of his Miranda rights, which he waived, and questioned him. His motion to suppress the statements he made was granted.
HELD: A defendant's right to counsel attaches when the government initiates adversary proceedings by indictment, arraignment, or other means. A criminal defendant is entitled to the assistance of counsel upon invoking the Sixth Amendment right following its attachment. In limited and well-defined circumstances, a defendant's ongoing representation by an attorney, although that representation began before indictment, invokes the right to counsel once that right attaches at the time of indictment. Affirmed.


Sandahl v. Beverly Enterprises
Case Nos. C030074/C030733
California Court of Appeal, Third District

ORDER
Minor modification of opinion filed herein on May 1, 2000, not effecting the judgment.

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