Wasserman's Appellate Summaries
May 31, 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.
Nevius v. McDaniel
Case No. 00-99009
U.S. Court of Appeals for the Ninth Circuit
ORDER-CRIMINAL-CERTIFICATE OF APPEALABILITY-DEFERENCE TO STATE COURT RULING
Nevius is a Nevada prisoner under sentence of death. His application for a certificate of appealability, required by the Antiterrorism and Effective Death Penalty Act, was denied by the district court.
HELD: The Court reviewed the procedural history of the case and concluded that Nevius has failed to make a substantial showing that his execution will constitute cruel and unusual punishment. The Nevada Supreme Court addressed and rejected Nevius's claim of cruel and unusual punishment in denying his supplemental original habeas petition. The federal courts are required to defer to this ruling of the Nevada Supreme Court. He has also failed to make a substantial showing that rejection of any of his other claims denied him a constitutional right. Nevius does not meet the requirements for issuance of a certificate of appealability. His application to the Ninth Circuit for such certificate was denied.
Tirado v. Immigration and Naturalization Service
Case No. 98-70783
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-REQUIREMENTS FOR REGISTRY OF LONG TIME ILLEGAL ALIENS-CRIME OF MORAL TURPITUDE
Tirado, a Mexican national and citizen, lived in the United States for nineteen years using the name and Social Security number of a woman whose Social Security card she found on a bus. In 1991, Tirado was arrested and convicted of two crimes because she wrote her false Social Security number on an employment verification form. After she served her sentence, the INS sought to deport her. Tirado then applied for registry. The Board of Immigration Appeals denied her request on the ground that her use of a false Social Security number constituted crimes of moral turpitude, and she was statutorily ineligible.
HELD: The Illegal Immigration Reform and Immigrant Responsibility Act precluded the exercise of jurisdiction on two of Tirado's three claims, which would require review of the Board's discretionary denial of Tirado's applications for suspension of deportation and voluntary departure. The IIRI did not deprive the court of jurisdiction to review the denial, discretionary or otherwise, of Tirado's application for registry. The registry statute is a remedial provision designed to regularize the status of long-resident aliens illegally in the country. The requirements for its application are: an entry to the United States before January 1, 1972; continuous residence since the entry; of good moral character, and not ineligible for citizenship. Tirado's crimes did not establish "moral turpitude" within the meaning of the Immigration and Nationality Act. Tirado did not AT&Tempt to create any liability for anyone else in any of her transactions over some 32 years in using her false identity. Tirado used the card to establish her own credit. The Board's legal error in applying the statute infected its exercise of discretion. Reversed and remanded.
Cable Computer v. Lockheed dba Sanders
Case No. 99-55004
U.S. Court of Appeals for the Ninth Circuit
CIVIL-ORAL CONTRACT FOR JOINT PARTICIPATION TO SUBMIT BID-PROMISSORY ESTOPPEL-UNFAIR BUSINESS ACT-CARTWRIGHT ACT
Cable and Computer Technology (CCT) is a 30-employee California corporation that designs, manufactures, integrates and tests equipment and systems intended to replace existing commercial and military computers. In May 1996 it received a Request For Information (required to prequalify companies to bid on its prime government contracts) from Boeing. CCT contacted Sanders, which it had worked with on two previous contracts for computer equipment, to jointly submit the RFI. CCT and Sanders worked together on proposal until one month before a bid was due, when Sanders withdrew from the teaming agreement and CCT was unable to bid. The sub-contract was awarded to a subsidiary of Lockheed. CCT sued for breach of contract, under the Unfair Business Practice and Cartwright Act. Summary judgment was for Lockheed.
HELD: The Statute of Fraud has no application to the teaming agreement, which had to be completed by the November deadline for the bid. CCT is entitled to a trial on whether it had a valid oral agreement with Sanders to work out a competitive bid to be submitted to Boeing and on its claim of promissory estoppel. Damages are not available under the Unfair Business Practice claim. The trial court also properly decided the Cartwright Act claim. CCT had no cause of action for the alleged inflated price of the work. Reversed in part and affirmed in part.
Bresson v. Internal Revenue Service
Case No. 98-71377
U.S. Court of Appeals for the Ninth Circuit
TAXATION-STATUTE OF LIMITATIONS-EXEMPTION OF THE UNITED STATES FROM STATE STATUTE OF LIMITATIONS-LIMITATION PERIOD AS A CONDITION PRECEDENT TO EXISTENCE OF CLAIM
Jaussaud Enterprises, Inc. owned real property. At the beginning of 1990, Bresson, the sole owner and officer of Jaussaud, resided at the property. On July 5, 1990, Jaussaud conveyed the property to Bresson. On the same date, Bresson sold the property to an unrelated third party. Bresson kept the net proceeds. Bresson did not report any capital gain on his personal income tax return for the year 1990. He reported most of the gain in 1991, but did not pay the tax. The IRS was unable to locate assets of Jaussaud to collect the tax due, and sent Bresson a Notice of Transferee Liability dated August 2, 1996. Bresson filed an action in the Tax Court. The Tax Court held that the transfer of the property was a fraudulent transfer under the California Uniform Fraudulent Transfer Act, although it acknowledged that the 4-year statute of limitations had passed, and the IRS could proceed against Bresson.
HELD: The general rule is that the United States is not subject to state statutes of limitations. For application of the general rule true statute of limitations (expiration of time for bringing an action) and limitation periods that are a condition precedent to the very accrual of a claim must be distinguished. The Court found that the wording of the CUFTA limitation period was an AT&Tempt to avoid the effect of the general rule. The trial court did not err. Affirmed.
People v. Oldham
Case No. D031986
California Court of Appeal, Fourth District, Division One
CRIMINAL-WARRANTLESS SEARCH WITH CONSENT-CONSENT BY ONE OCCUPANT OF PREMISES OCCUPIED BY TWO PERSONS-APPARENT AUTHORITY TO CONSENT TO SEARCH
Sheriff's deputies responded to a radio call of drug activity. The deputies confronted Oldham outside of the apartment, where he consented to a search of his person, but refused to consent to a request to search the apartment for drugs. No drugs or contraband were found on his person. Oldham had lived at the apartment complex with his father for a long period of time an occupied one of two bedrooms exclusively. Oldham's father indicated he lived there, that it was his apartment, and consented to a search of the entire apartment for drugs. Drugs and paraphernalia were found. Oldham's motion to suppress was denied. Oldham was convicted of possession for sale and related charges.
HELD: A search will be held reasonable where the police reasonably rely upon a third party's apparent authority to consent to search. Oldham did not raise the specific question of the validity of Father's consent to search closed containers in that room and it cannot be considered on appeal. A warrantless search of property is reasonable under the Fourth Amendment where proper consent is given. Where the subject property is a premises occupied by more than one person, a search will be reasonable if consent is given by one of the joint occupants who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. The trial court properly denied Charles Oldham's motion to suppress evidence on the ground his father could not consent to a search of the bedroom he occupied in the apartment they shared Affirmed in part, reversed in part (accepting the People's concession one of the convictions must be reversed).
Duggal v. Future Telcom
Case No. B125295
California Court of Appeal, Second District, Division Five
OTHER-FEDERAL COMMUNICATIONS ACT-BULK SALE OF TELEPHONE SERVICES-FILED RATE DOCTRINE-PREEMPTION OF FEDERAL LAW
Future Telcom is engaged in the business of buying telephone services at a discounted bulk rate and reselling these services. Telcom contracted with Duggal and others to act as sales representatives and to buy bulk telephone services in states in which Telecom was not licensed. The agreement wound up in a suit in which Duggal alleged Telecom misrepresented its relationship with AT&T, failed to account for and process new customers, and related breaches and sought an accounting from AT&T. The demurrer of AT&T was granted, on the ground that the state law negligence claim was in conflict with its filed tariff and was thus preempted by the filed rate doctrine pursuant to the Federal Communications Act.
HELD: The Federal Communications Act requires telecommunication common carriers to file schedules of all charges, known as tariffs, with the FCC. The contents of the tariff are subject to FCC approval and are the equivalent of federal regulations, which have the force of law. The "filed rate doctrine" applies to the FCA. Under this doctrine, the filed rate is the only lawful rate. Deviation is not permitted under any pretext. The case gives an overview of the arcane subject of telephone rate regulation and the operation of bulk rate dealers. Affirmed.
Rakestraw v. California Physician's Service
Case No. B115766
California Court of Appeal, Second District, Division Three
(Certified for publication with the exception of part V(B)(1), (2), (3) and (4).)
INSURANCE-KNOX KEENE ACT-PROHIBITION OF DISCRIMINATION IN BASIC HEALTH CARE INSURANCE POLICY DOES NOT RELATE TO PREGNANCY
Thomas and Melissa Rakestraw are husband and wife. They had a family health care policy with Blue Shield. The "Pregnancy, Maternity Care and Family Planning" portion of the policy required a $1,000 copayment for each inpatient hospital admission that resulted in a delivery of a child. For all necessary Inpatient Hospital and ancillary Services, the policy paid only 20% of allowed charges, after a $1,000.00 copayment. Melissa was hospitalized during her delivery and hospital services were $3,648.95. Blue Shield allowed $897 for inpatient hospital services. Because this amount was less than the $1,000 copayment, Blue Shield disclaimed any obligation to pay for those services. The Rakestraw's sued, alleging that Blue Shield violated several statutes in the Knox-Keene Act. Blue Shield's demurrer was sustained.
HELD: The Knox-Keene Act applies to basic health care service plan contracts. The Act specifically allows health care service plans to charge copayments for maternity services. One of the sections of the Act prohibits a health care service plan contract from altering the contract or limiting benefits or coverage because of a contracting party's sex. There is no indication that the Act was intended to include pregnancy in the prohibition against the use of a copayment "because of sex." Affirmed.
Alpert v. Villa Romano Homeowner's Association
Case No. B118182
California Court of Appeal, Second District, Division Two
PERSONAL INJURY-FALL ON SIDEWALK-DUTY OF PROPERTY OWNER TO WARN OF OR REPAIR DANGEROUS CONDITION OF ABUTTING SIDEWALK
Alpert, then 69 and in good health, took her dog, BJ, for a walk. BJ was on a leash. Alpert walked her dog several times a day and had never fallen before while walking him. On the way home, she passed in front of the VRHA condominium property. The weather was dry and clear; the summer sun was overhead. She stepped on a jagged piece of sidewalk, and fell face first, to the sidewalk. After her fall, she noticed that there was grass growing in this break in the sidewalk, suffering severe injuries. The VRHA's motion for nonsuit was granted at the conclusion of Alpert's case, on the ground that the VRHA's duty of care did not extend to the sidewalk.
HELD: VRHA as the landowner and party in possession and control owed a duty to pedestrians such as Alpert to either warn them of a dangerous condition of the premises or repair it. The record in this case clearly shows that the trial court weighed the evidence and erred as to the applicable law. The trial court did not view the evidence adduced by plaintiff in the manner required when analyzing evidence in ruling on a motion for nonsuit made at the conclusion of a plaintiff's case-in-chief. The proper test to be applied to the liability of the possessor of land is whether in the management of his property has acted as a reasonable man in view of the probability of injury to others. By statute the owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property. Reversed.
Pierotti v. Torian
Case No. A086713
California Court of Appeal, First District, Division Three
CIVIL-APPEAL-REVIEW OF CONFIRMATION OF ARBITRATION AWARD-SANCTIONS FOR FAILURE TO FOLLOW RULES ON APPEAL-FRIVOLOUS APPEAL
Torian was a car dealer in the City of Fremont. He persuaded the other car dealers in Fremont to join in purchasing land for a single auto mall. Torian found suitable land, negotiated the price, which included a 3% commission to him, which he did not disclose to the other dealers. The dealers formed a formal partnership to develop the auto mall site. The Agreement provided that the prevailing party in an arbitration shall be entitled to reasonable AT&Torneys' fees and costs. Pierotti was the first dealer to open in the new mall. Because of economic conditions the other dealers delayed their move. Pierotti closed three years later and sued Torian for non-disclosure of the commission and fraud, because Torian had no present intention to move to the mall when it opened. The arbitrator rejected the fraud claim and awarded $345,726, as Pierotti's share of the commission, plus punitive damages and as the prevailing party, awarded AT&Torney fees. The trial court confirmed the award, but failed to award post arbitration interest.
HELD: The grounds for judicial review of a contractual arbitration award are extremely limited. Even an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review. The reviewing court must accept the trial court's findings of fact confirming an arbitration award if substantial evidence supports them, and must draw every reasonable inference to support the award. Torian's claim on appeal is that the arbitrator erred by finding Pierotti was the prevailing party under the Partnership Agreement's AT&Torney fees clause. This is nothing more than an AT&Tack on the arbitrator's reasoning or, at best, an assertion of an error of law apparent on the face of the award. The award was properly confirmed. Relating to Torian's cross-appeal, the Civil Code provides that; every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day. In an action on a contractual obligation, a party is entitled to pre-judgment interest under this provision as a mAT&Ter of right. The trial court was required to award post-award, pre-judgment interest. Torian and his AT&Torney were sanctioned for ignoring the rules on appeal, and for filing a frivolous appeal. Affirmed.
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page