Wasserman's Appellate Summaries
June 1, 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.
Van Gerwun v. Guarantee
Case No. 98-56028
U.S. Court of Appeals for the Ninth Circuit
CIVIL-METHOD OF COMPUTING ATTORNEY FEES-LODESTAR RATE AS STARTING POINT IN COMPUTATION
Van Gerwun sued defendants under ERISA for improperly denying her past and future benefits under an ERISA long-term disability plan. The district court granted Van Gerwun's motion for summary judgment, ruling that she was entitled to benefits under the plan as well as $40,412 in damages. Van Gerwun's motion for attorney's fees of $38,175, at $300 an hour, was reduced to $14,212.50 in fees and $200 per hour. The court then reduced the total amount of attorney's fees by a multiplier of .75 based on the poor quality of the attorney's work and some unnecessary hours.
HELD: The Ninth Circuit has adopted the hybrid lodestar/multiplier approach for determination of reasonable attorney fees. First, a court determines the "lodestar" amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. The party seeking an award of fees must submit evidence supporting the hours worked and the rates claimed. A district court should exclude from the lodestar amount hours that are not reasonably expended because they are excessive, redundant, or otherwise unnecessary. Second, a court may adjust the lodestar upward or downward using a multiplier based on factors not subsumed in the initial calculation of the lodestar. Quality of representation is generally considered at the lodestar stage in determining what is a reasonable hourly rate. The district court's attorney's fee determination was vacated because, on the record it appeared the district court may have erroneously relied on quality of representation both in calculating the lodestar amount and in applying a downward multiplier. Vacated and remanded.
Weighall v. Middle
Case No. 99-35657
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INEFFECTIVE ASSISTANCE OF COUNSEL-FAILURE TO REQUEST CLARIFYING INSTRUCTION-UNREASONABLE APPLICATION OF CLEARLY DEFINED FEDERAL LAW
Weighall was convicted in Oregon State court of first degree assault for stabbing another man in a bar fight. At trial, he pursued a theory of self-defense and the jury was instructed on the permissible use of deadly force in self-defense. Weighall petition for habeas corpus, on the grounds his trial counsel's failure to request an additional instruction to further clarify the defense constituted ineffective assistance of counsel, was denied.
HELD: Under the Antiterrorism and Effective Death Penalty Act, Weighall must demonstrate that the state court adjudication of the merits of his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. To prevail on a claim of ineffective assistance of counsel, Weighall must show that his trial counsel's performance fell outside a wide range of reasonableness and that he was prejudiced by that performance. Based on Oregon law the court additionally instructed that the use of deadly force in self-defense is permitted only where the defendant reasonably believed that the other person was: (1) committing or attempting to commit a felony involving the use or threatened use of physical force against a person; or (2) committing or attempting to commit a burglary in a dwelling; or (3) using or about to use unlawful deadly physical force against a person. The court did not define "felony" with regard to the first circumstance. The jury was presented with Weighall's theory of self-defense and the court gave a general use of deadly force instruction that provided the jury with three circumstances in which deadly force would be permitted. The state court did not unreasonably apply clearly established federal law and trial counsel's failure to request the additional instruction was not unreasonable. Affirmed.
Ladha v. Immigration and Naturalization Service
Case No. 98-70772
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ASYLUM-CORROBORATION OF EVIDENCE OF FEAR OF PROSECUTION
Ladha, his wife and daughter, were Pakistani nationals. They sought asylum and withholding of deportation on the basis of religious persecution. The Ladhas belonged to a small sect within the Muslim population. Mr. Ladha was a priest in the sect. They testified to incidents of physical violence and threats against them in their church and at home. The Immigration Judge denied their application, on the grounds that even if their testimony was true, they had failed to provide corroborative evidence. The BIA affirmed.
HELD: A refugee under the Immigration and Nationality Act is an alien who is unwilling to return to his or her country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Persecution means the infliction of suffering or harm upon those who differ in a way regarded as offensive. To establish a well-founded fear of persecution the Ladhas had to show their fear to be both objectively reasonable and subjectively genuine. The BIA requirement of the corroboration of credible evidence was contrary to the rule in the Ninth Circuit of the court of appeals. Refugees are rarely able to offer corroboration of specific threats. The BIA must follow the decisions of our court. Reversed, as to the objective component of the requirement for asylum, and remanded.
United States v. Kakatin
Case No. 99-10361
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-AVAILABILITY OF SAFETY VALVE-LESSER INCLUDED OFFENSE
Kakatin pleaded guilty to one count of possessing with the intent to distribute, and distributing crystal, methamphetamine within 1,000 feet of a school. The Sentencing Guidelines indicated the applicable sentencing range was 10 to 16 months, with a one-year mandatory minimum sentence. It was also noted in the Presentence Report that Kakatin could avoid the statutory one-year mandatory minimum sentence by meeting statutory safety-valve requirements. The district court rejected his safety valve request and sentenced him to 14 months.
HELD: 21 U.S.C.S 841(a)(1) provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense a controlled substance. A person violates 21 U.S.C.S 860(a) when that person violates section 841(a)(1) by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary school. Because S 841 is a lesser included offense of S 640 it does not mean that Congress did not intend that the safety valve be available to those convicted of violating S 841, but not be available to those convicted of committing the more serious S 860 offense. Affirmed.
Los Angeles County Employee's Association v. Superior Court Of Los Angeles
Case No. B128720
California Court of Appeal, Second District, Division One
LABOR-GOVERNMENT EMPLOYEES-RIGHT OF DEPUTY COURT CLERKS TO BE INCLUDED IN CIVIL SERVICE-MEANING OF WORD "ATTACHES"
The Compton Municipal Court implemented a plan to reduce the number of deputy court clerks covered by the civil service system. Under the plan, all newly hired or promoted clerks were designated as non civil service. The clerks' union brought this action, challenging the municipal court plan. The trial court issued a writ of mandate directing the municipal court to accord civil service status to all of its deputy court clerks.
HELD: The California Constitution provides that: The Legislature shall provide for the organization and prescribe the jurisdiction of municipal courts. It shall prescribe for each municipal court the number, qualifications, and compensation of judges, officers, and attaches. The Government Code provides that in charter counties the same rules for civil service applies to the municipal courts as is in effect for other employees of the county.
The logical interpretation of the word "attaches" is that the clerk, marshal, commissioners, jury commissioner and court reporters are officers of the court, while subordinate employees, which some of these officers are authorized to appoint, are attachés. Because deputy municipal court clerks are attachés, they are entitled to the civil service rights that are generally applicable to officers and employees of Los Angeles County. Affirmed.
People v. Mitchell
Case No. D034236
California Court of Appeal, Fourth District, Division One
CRIMINAL-DOUBLE JEOPARDY APPLICATION TO SENTENCING-APPLICATION OF PRINCIPALS OF RES JUDCATA, COLLATERAL ESTOPPEL, LAW OF THE CASE AND EQUITABLE PRINCIPLES TO RETRIAL OF ENHANCEMENT ALLEGATIONS
In a 1995 unpublished opinion the Fourth Appellate District affirmed Mitchell's jury conviction for assault with a deadly weapon and enhancement finding of infliction of great bodily injury, the trial court's true finding he had previously suffered a prior serious felony conviction, and Mitchell's total nine-year sentence. Mitchell appealed solely on grounds his restitution fine was excessive. The trial court believed it did not have discretion to strike a prior. A petition for habeas corpus was granted and on resentencing his term was set at 12 years. Mitchell's second petition for habeas relief on the ground he received ineffective assistance of counsel, relating to the true findings of a prior conviction, was also granted. On remand, the motion of Mitchell to preclude retrial on the serious felony allegations and to preclude retrial of those allegations for enhancement and strike purposes was denied. On receiving additional evidence true findings were made by the court on the prior serious felony allegations.
HELD: California's statutory provision provides on its face a trial on the truth of a prior conviction allegation that has all the hallmarks of the trial of guilt or innocence, which has led to requiring the defendant have an attorney, notice and an opportunity to be heard, the prosecution plead and prove the allegation by proof beyond a reasonable doubt. The United States Supreme Court has held that the double jeopardy clause does not preclude retrial on a prior conviction allegation in noncapital sentencing proceedings. The Court extensively discussed the law of the case, collateral estoppel, res judicata, double jeopardy and equitable principles. The Court concluded that fundamental fairness mandates the true findings on Mitchell's prior allegations be vacated and the matter remanded with directions to enter new findings that those allegations are not true and to resentence Mitchell accordingly. Reversed and remanded with directions to enter not true findings for the enhancement allegations and resentencing.
Calhoun v. Lewis
Case No. D033168
California Court of Appeal, Fourth District, Division One
PERSONAL INJURY-PRIMARY ASSUMPTION OF RISK-SKATEBOARDING ON PRIVATE PROPERTY-PROPERTY OWNER'S DUTY TO SKATEBOARDER
While waiting for a friend, Michael Calhoun skateboarded in his friend's driveway. He fell into a planter and was injured by a metal pipe inside the planter. He sued his friend's parents, who had placed the planter in the driveway. Michael sued the Lewises for negligence and premises liability. Summary judgment was for Lewis.
HELD: Skateboarding is a type of activity covered by the primary assumption of risk doctrine. An activity falls within that doctrine if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. The trial court properly granted summary judgment because the plaintiff voluntarily assumed the risks inherent in skateboarding and Lewis owed no affirmative duty to Calhoun to make the driveway safe for skateboarding activities. Affirmed.
People v. Russell
Case No. C031844
California Court of Appeal, Third District
(Certified for publication with the exception of part II of the DISCUSSION.)
CRIMINAL-CONSENSUAL INVESTIGATORY SEARCH-CONSENT GIVEN WHILE HANDCUFFED-TIME LIMIT ON INVESTIGATORY STOP-EFFECT ON CONSENSUAL SEARCH OF FAILURE TO GIVE MIRANDA WARNING
Burks moved to suppress evidence found in a car, he was driving, with Russell as passenger. Russell joined in the motion, asserting that Russell's consent to search the car was invalid because it was improperly obtained as a result of an unreasonably prolonged detention. Their motion to suppress evidence was denied. Russell and Burks pleaded guilty to transportation of cocaine pursuant to a plea bargain.
HELD: An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. The failure of the police officers to give Miranda warnings to Russell after Burks had been placed in a police vehicle does not render a consent to search involuntary. Similarly, the fact that Russell was handcuffed when his consent was sought does not demonstrate that his consent to a search was involuntary. Instead, that fact is to be weighed in the balance along with all other circumstances bearing on this issue. A consensual search is not invalid merely because the person giving consent did not feel free to leave. Affirmed.
Savannah B., a Juvenile v. Superior Court/Department of Children and Family Services
Case No. B139718
California Court of Appeal, Second District, Division Four
FAMILY LAW-INVALIDITY OF DISPOSITION ORDER PLACING MINOR WITH THIRD PARTY AND GRANTING VISITATION TO PARENT
Savannah was detained and placed in the home of her maternal aunt due to Marva's persistent abuse of cocaine. By the time of the disposition hearing, in February 2000, Marva had enrolled in a 10-month residential rehabilitation program and completed a parenting class. She had been regularly visiting Savannah, had tested negative for drugs for three months, and had made substantial progress in her in-patient program. The disposition order required the minor to be removed from the custody of her mother, Marva B., and suitably placed, yet simultaneously begin a 60-day visit with Marva. Savannah sought mandate.
HELD: By statute a dependent child cannot be taken from the physical custody of its parents unless the juvenile court finds clear and convincing evidence of a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents. The court's finding under the Welfare and Institutions Code that the minor is suffering severe emotional damage, and there is no reasonable means to protect without removal from the parent's physical custody is inconsistent with a simultaneous order granting a 60-day visit with the parent. The DCFS has now conceded that there was no substantial evidence to support the finding that Savannah would have been endangered by return to Marva, as long as such return was supervised. The statutes contemplate that removal of the child from the physical custody of the parents will result in some other person or entity having physical custody of the child and that the child will be placed in an appropriate home other than that of the parent who had custody at the time the petition was filed. Since the juvenile court has already set aside its order the petition was dismissed. The matter was not considered moot because of the continuing importance of the question raised and possible reoccurrence of the question.
Ringler Associates, Inc.. v. Maryland Casualty Company
Case No. A082472
California Court of Appeal, First District, Division Three
INSURANCE-POLICY EXCLUSION FOR DEFAMATION OCCURRING BEFORE EFFECTIVE DATE OF POLICY-FIRST PUBLICATION RULE
Ringler is in the business of providing consulting and annuity brokerage services in connection with the purchase of annuities used to fund structured settlements of personal injury cases. Ringler obtained a general commercial liability insurance policy, from Maryland and Northern. The Policy provided coverage for personal injury and advertising injury, defined to include various forms of commercial defamation or trade libel and slander, but only if the offense was committed in the coverage territory during the policy period.
The Policy specifically excludes coverage for any such libel, slander or disparagement arising out of oral or written publication of material whose first publication took place before the beginning of the policy period. Ringler was sued in San Francisco Superior Court in a case, arising out of the same underlying facts, which was originally filed in Santa Clara County on April 27, 1989, over a year before the inception of the Policy on June 4, 1990. The suit alleged that Ringler conspired to boycott and injure the plaintiffs through various alleged practices, including the publication and dissemination of false, disparaging, defamatory and derogatory statements about the plaintiffs and their services. Ringler tendered the defense of the action to Maryland and Northern in June 1990, the same month it was filed, which promptly agreed to contribute pro rata to Ringler's defense, along with Ringler's prior insurers. Ringler was subsequently advised that the defense was undertaken with a reservation or rights. After some discovery Ringler was advised that no further duty to defend or indemnify existed in the actions, and the insurers were withdrawing from the defense. Ringler sued, Summary judgment was for Maryland and Northern, on the ground the first publication exclusion barred any potential recovery.
HELD: The language of the Policy exclusion at issue excludes coverage of republication of any identifiably defamatory material whenever the first publication of substantially the same material occurred before the inception of the policy period, without regard to whether or not the defamatory material is literally restated in precisely the same words. The record shows that all the alleged defamations occurred before the inception of the Policy period, or at most were restatements of the same trade disparagements that had already been repeated for years. There was no waiver of the right to withdraw from the defense. Affirmed.
O'Brien v. Jones, Secretary of State
Case No. S085212
Supreme Court of California
OTHER-AUTHORITY OF LEGISLATURE TO APPOINT STATE BAR COURT JUDGES
O'Brien and others who joined in this action were previously appointed by the Supreme Court as judges of the State Bar Court. They filed this original proceeding seeking a writ of mandate, or other appropriate relief, to preclude respondents Governor, Senate President Pro Tempore and Speaker of the Assembly from appointing any judges of the State Bar Court, and to prohibit respondent Secretary of State from accepting for filing the oaths of office administered in connection with any such appointments.
HELD: Although this court's inherent authority over attorney admission and discipline includes the power of this court to appoint the judges of the State Bar Court and to specify their qualifications, other appointment mechanisms specified by the Legislature are permissible so long as they are subject to sufficient judicially controlled protective measures to ensure that such appointments do not impair the court's primary and ultimate authority over the attorney admission and discipline process. As we shall explain, because of our continuing, primary authority over the operations of the State Bar Court - including the appointment of that court's judges - and the numerous structural and procedural safeguards, described herein, that exist both within the attorney discipline system and within the State Bar Court appointment process established by this court, we conclude that the legislation here at issue, providing that some of the hearing judges shall be appointed by the executive and legislative branches and that the lay judge of the Review Department shall be replaced with a judge who is a member of the State Bar, does not defeat or materially impair our authority over the practice of law, and thus does not violate the separation of powers provision. Petition denied.
Asmus v. Pacific Bell
Case No. S074296
Supreme Court of California
EMPLOYMENT-UNILATERAL TERMINATION OF WRITTEN POLICY BY EMPLOYER
The case was certified to the California Supreme Court by the Ninth Circuit Court of Appeals to render an opinion as to whether an employer's unilaterally adopted policy, which requires employees to be retained so long as a specified condition does not occur, has become a part of the employment contract, may the employer thereafter unilaterally terminate the policy, even though the specified condition has not occurred.
HELD: An employer may unilaterally terminate a policy that contains a specified condition, if the condition is one of indefinite duration, and the employer effects the change after a reasonable time, on reasonable notice, and without interfering with the employees' vested benefits. Just as employers must accept the employees' continued employment as consideration for the original contract terms, employees must be bound by amendments to those terms, with the availability of continuing employment serving as adequate consideration from the employer. An employer may terminate a written employment security policy that contains a specified condition, if the condition is one of indefinite duration and the employer makes the change after a reasonable time, on reasonable notice, and without interfering with the employees' vested benefits.
Cornette v. Deptartment of Transportation
Case No. B125741
California Court of Appeal, First District, Division Three
ORDER-DENIAL OF JURY TRIAL
Modification of opinion filed on May 3, 2000, not effecting the judgment.
Valencia v. Michaud
Case No. A083888
California Court of Appeal, First District, Division Three
ORDER
Minor modification of opinion filed March 31, 2000, not effecting the judgment.
Rankin & Associates v. City of Mirrietta(05/24/00)
Case No. E024139
California Court of Appeal, Fourth District, Division Two
CIVIL-FAILURE OF CITY TO SECURE GOOD AND SUFFICIENT PAYMENT BOND-MANDATORY REQUIREMENT FOR PAYMENT BOND IMPOSES DUTY ON CITY TO SECURE GOOD AND SUFFICIENT SECURITY
The City of Murrieta awarded a construction contract to general contractor KLM Engineering. KLM was required by statute to provide a payment bond to the City. Red Sea Group, Ltd executed the payment bond, also referred to as a labor and materials bond. Rankin then entered into a contract with KLM to supply and install the playground equipment. When KLM did not pay Rankin t issued a stop notice. The stop notice resulted in the payment by the City of an amount that was Red Sea was not licensed as a surety by either the California or Arizona Insurance Departments, nor any other state, and Red Sea was not a corporation authorized to do business in California short of the amount due. On investigation by Rankin it was discovered that Red Sea was not licensed as a surety by either the California or Arizona Insurance Departments, or any other state, and Red Sea was not a corporation authorized to do business in California. The president of the Red Sea was subsequently indicted for fraud in connection with the bonding operation of Red Sea. Rankin sued. The trial court held that the City did not have a duty to require a surety providing a payment bond be an admitted surety insurer or to confirm the solvency of the surety.
HELD: The general rule is that in the absence of a constitutional requirement, public entities may be held liable only if a statute is found declaring them to be liable. The Government Code t provides that: where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. Nothing on the face of the statutes requiring a bond requires the surety be an admitted surety insurer or mandating a public entity to investigate the solvency of the surety. These statutes requiring a payment bond cannot be read in isolation and must be construed in conjunction with the Bond and Undertaking law, which imposes a mandatory duty on a public entity to require that the bond be executed by one of the three categories of insurers. The City failed in securing a good and sufficient surety. Rankin did not waive its claim by failing to object to the bond under Code of Civil Procedure Code of Civil Procedure. Reversed and remanded.
Wasserman's Archived Appellate Summaries
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