Wasserman's Appellate Summaries
June 5, 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.
National Warranty Insurance Co. v. Greenfield
Case No. 99-36054
U.S. Court of Appeals for the Ninth Circuit
INSURANCE-FEDERAL PREEMPTION-RISK RETENTION GROUPS-PRODUCT LIABILITY RISK RETENTION ACT
In response to escalating product liability insurance premiums auto manufacturers began to obtain product liability insurance from insurance cooperatives known as RRGs. The Oregon Service Contract Act prohibits all Risk Retention Groups from selling reimbursement insurance policies to automobile dealers to cover their liability on motor vehicle service contracts. The National Warranty Insurance Company filed suit against Greenfield, Director of the Oregon Department of Consumer and Business Affairs, seeking a declaratory judgment. The trial court enjoined the state from treating RRGs differently from "authorized insurers" under the Service Contract Act.
HELD: Even with a general presumption that insurance law should ordinarily be regulated under state law, as reinforced by the McCarran-Ferguson Act, the language and purpose of the Product Liability Risk Retention Act clearly indicate an intent to preempt state laws regulating RRGs. the Oregon Act may not categorically exclude coverage from all RRGs. Affirmed.
Brooks v. City of San Diego
Case No. 98-15818
U.S. Court of Appeals for the Ninth Circuit
EMPLOYMENT-SEXUAL DISCRIMINATION-HOSTILE ENVIRONMENT BASED ON SINGLE INCIDENT-RETALIATION-CONSTRUCTIVE DISCHARGE
Brooks reported a sexual advance, with physical contact made by a co-worker. The co-worker was suspended and the City's investigation revealed two other unreported incidents of sexual misconduct. The co-worker resigned and was criminally prosecuted. Brooks later took a leave of absence, She claimed her male employees ostracized her and her supervisors mistreated her. She alleged trouble getting her desired work shift and preferred vacation dates. She filed suit. The district court held that the co-worker's assault of Brooks in the Communications Center was not severe enough to give rise to a hostile work environment claim and that she failed to show that she had suffered any retaliatory adverse employment consequences. Summary judgment was for the City.
HELD: Title VII prohibits employment discrimination based on enumerated grounds of race, color, religion, sex, or national origin. A hostile work environment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with the job performance of those harassed. An employee subject to adverse employment actions because they lodged complaints of sexual harassment can raise a retaliation claim. In order to prevail on her hostile work environment claim, Brooks must show that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. The totality of the circumstances test is used to determine whether a plaintiff's allegations make out a colorable claim of hostile work environment. A single severe instance of sexual harassment may be sufficient to establish a hostile work environment. Considering factors of frequency, severity and intensity of interference with working conditions, we cannot say that a reasonable woman in Brooks's position would consider the terms and conditions of her employment altered by the co-worker's actions. Because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action. A reasonable trier of fact could not find that she was constructively discharged by being driven from the workplace. Affirmed.
United States v. Johnson
Case No. 99-15467
U.S. Court of Appeals for the Ninth Circuit
ORDER-DELIVERY OF PETITION TO PRISON OFFICIALS BEFORE ANTITERRORISM AND DEFECTIVE DEATH PENALTY ACT
Johnson delivered his petition for a writ of habeas corpus to prison officials before the Antiterrorism and Effective Death Penalty Act became effective, but the motion was not filed in the district court until April 26, 1996, which was after the effective date. The district court denied his petition.
HELD: Johnson's motion for judicial notice that the provisions of the Antiterrorism and Effective Death Penalty Act do not apply to him is granted.
Cano v. Workers' Compensation Appeals Board
Case No. C032288
California Court of Appeal, Third District
WORKERS' COMPENSATION-DENIAL OF FUTURE MEDICAL TREATMENT CONTRARY TO LAW-EVIDENCE-PROOF
Cano was injured when a tank he was dismantling exploded. The WCAB ruled that he suffered a permanent disability of 65 percent and was not entitled to further medical care, since he had failed to prove a need for a precautionary award of continuing care.
HELD: Under workers' compensation law, an employer's duty to provide treatment includes all medical, surgical, nursing and hospital care reasonably required to cure or relieve the effects of an industrial injury. The record contains several references by physicians to a need for cosmetic improvements via plastic surgery. Dr. MacMorran noted further medical treatment might include plastic surgery to the mouth in order to increase his buckle opening. Dr. Faggella also indicated reconstructive surgery would improve Cano's facial injuries. The present appearance of the employee would be a decided handicap to his obtaining employment. The Board's decision is not supported by the evidence and is contrary to law. Decision annulled and remanded for further proceedings.
People v. Superior Court (Zamudio)
Case No. S073031
Supreme Court of California
CRIMINAL-SETTING ASIDE A PLEA FOR FAILURE TO ADVISE OF ALL IMMIGRATION CONSEQUENCES OF A PLEA-NECESSITY FOR HEARING-TEST FOR PREJUDICE
Zamudio was advised, when pleading no contest in 1992 to the felony of unlawful driving or taking of a vehicle without the owner's consent, that conviction of that offense might have the consequences of his being deported or barred from naturalizing to U.S. citizenship, but he was not advised the conviction might also result in his being excluded from admission to the U.S.. In 1997 Zamudio was charged in the same court with taking a vehicle, plus other charges. The trial court granted his motion to withdraw his 1992 plea, vacated the judgment of conviction and reset the matter for trial. The Court of Appeal denied the People's motion for relief.
HELD: The Penal Code provides that prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except infractions, the court shall advise any non citizen defendant on the record that; conviction of the offense for w charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The statute also provides that if the admonishment is not given the plea shall be vacated on motion. An evidentiary hearing is not required in all motions to set aside a plea. Whether defendant was prejudiced by the trial court's incomplete advisements is a factual question, appropriate for decision by the trial court in the first instance. The applicable test is whether, after an examination of the entire cause, the court is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. The sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is 'reasonably probable' the defendant would not have pleaded guilty if properly advised. Reversed and remanded.
Kraus v. Trinity Management
Case No. S064870
Supreme Court of California
REAL PROPERTY-IMPOSITION OF DISGORGEMENT ORDER INTO FLUID FUND IN UNFAIR COMPETITION LAW ACTION
Kraus and five other individual plaintiffs initiated this action on behalf of themselves and the present and former tenants of defendants. The action sought declaratory relief, restitution, and civil penalties for unlawful assessments of nonrefundable tenant charges for pre-lease administrative services, liquidated damages, and security for unpaid rent. The trial court ordered Trinity Properties to disgorge $447,700 for liquidated damage/security fee assessments and Trinity Management Services to disgorge $447,000 of Tenancy Initiation Expense Reimbursement fees, which were the sums collected within the four-year statute of limitations period. The funds disgorged were ordered placed in a fluid recovery fund and administered as a trust fund for providing financial assistance for the advancement of legal rights and interests of residential tenants. The Court of Appeal affirmed.
HELD: Class actions and representative Unfair Competition Law actions make it economically feasible to sue when individual claims are too small to justify the expense of litigation and thereby encourage attorneys to undertake private enforcement actions. Through the UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices in order to protect the public and restore to the parties in interest money or property taken by means of unfair competition. The implementation of fluid recovery involves three steps. First, the defendant's total damage liability is paid over to a class fund. Second, individual class members are afforded an opportunity to collect their individual shares by proving their particular damages, usually according to a lowered standard of proof. Third, any residue remaining after individual claims have been paid is distributed by one of several practical procedures that have been developed by the courts. A security deposit is limited to charges imposed to secure the landlord against future tenant defaults. A fee imposed at the outset of the tenancy to reimburse the landlord for expenses incurred for such purposes as providing application forms, listing, interviewing, screening the applicant, for checking credit references, and for similar purposes is not a security governed by the provisions of Civil Code section 1950.5. Disgorgement into a fluid recovery fund is not a remedy available in such representative UCL actions and that Civil Code section 1950.5 does not apply to defendants' nonrefundable security and administrative fees. It was also concluded that Kraus was not denied due process. Reversed the judgment of the Court of Appeal.
Cortez v. Purolator Air Filtration
Case No. S071934
Supreme Court of California
CIVIL-UNFAIR BUSINESS PRACTICES DOES NOT AUTHORIZE FLUID RECOVERY FUND-DETERMINATION OF APPROPRIATE REMEDY FOR RESTORATION OF UNPAID OVERTIME WAGES TO UNPAID WORKERS
This case presented issues related to Krauss v. Trinity Management. Workers at a Purolator plant worked 10 hours a day four days a week. A wage order required payment of overtime for all work in excess of 8 hours per day. Cortez sued for herself and the general public, based on Unfair Business Practices and other claims. The trial court awarded Cortez overtime pay, interest, and penalty for herself, and ruled that it was without power to order restitution on behalf of other, absent, employees because that relief could only be ancillary to injunctive relief.
HELD: The Supreme Court held that consistent with its conclusion in Kraus that the UCL does not authorize fluid recovery in a representative UCL action, and that, while disgorgement to a fluid recovery fund of all profit Purolator may have earned by withholding overtime wages is not permitted, Purolator may be compelled to restore unpaid wages to its employees and former employees. Once earned, those unpaid wages became property to which the employees were entitled. Failure to promptly pay those wages was unlawful and an unfair business practice. The statute expressly authorizes orders necessary to restore money or property to any person in interest from whom the money or property has been obtained through an unfair business practice. It was concluded that, the Court of Appeal correctly rejected Purolator's statute of limitations claim, Equitable considerations may guide the court in fashioning the appropriate remedy in a UCL action. Affirmed the judgment of the Court of Appeal as modified.
Mendoza v. The Car Club
Case No. D031575
California Court of Appeal, Fourth District, Division One
(Certified for publication with the exception of part IV.)
PERSONAL INJURY-PRODUCT LIABILITY-CONSUMER EXPECTATION TEST-INSTRUCTIONS-INCONSISTENCIES IN SPECIAL VERDICT-WITHDRAWAL OF EVIDENCE-JUROR MISCONDUCT
Mendoza was injured when the parking brake on a rented golf cart manufactured by Golf Cart, Inc. spontaneously released and struck him. Mendoza sued for product liability and recovered judgment. When the court found an inconsistency in the special verdict, the jury was instructed on that issue, and directed to deliberate further. Several documents relating to complaints of brake failure were admitted during trial and withdrawn when the court granted a directed verdict on a negligence claim and the jury was instructed to disregard the documents. Mendoza has cross appealed relating to issues of admission of documents relating to other brake failures on CCI golf carts, and evidence of tests by Mendoza's expert.
HELD: The California Code of Civil Procedure provides that, when the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the Court, or the jury may be again sent out. A special verdict's correctness must be analyzed as a matter of law. A special verdict is far more susceptible to defect than a general verdict, which can be tested with special findings. The actions of the court were proper (and in fact required) to correct the inconsistencies in the verdict and cause the verdict to reflect the jury's true intent. The fact that a verdict was reached shortly after an alternate juror was seated did not establish jury misconduct. The instruction given on the withdrawal of the evidence of prior brake failures was not in error.
There is substantial evidence to support the jury's finding of a defect and causation on the product liability claim. The case was tried on a consumer expectation test of the safety of the product. The instruction provided that, "A product is defective in design: "If it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." Affirmed.
Burden v. The County of Santa Ana
Case No. H019329
California Court of Appeal, Sixth District
EMPLOYMENT-GOVERNMENT-GOVERNMENT IMMUNITY FOR MISREPRESENTATION OF CONDITIONS OF EMPLOYMENT-EXCEPTIONS TO GOVERNMENT IMMUNITY FOR MISREPRESENTATION
Burden was hired as an attorney in the worker's compensation section of the Office of the Santa Ana County Counsel and terminated a month later. Burden sued the County of Santa Ana, alleging that conditions of his employment had been misrepresented. Summary judgment was for the County, on the ground of government immunity.
HELD: The Government Code provides that a public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional. This case did not come within any exception to the provision for government immunity. Affirmed.
National Parks and Conservation Association v. The County of Riverside
Case No. D032228
California Court of Appeal, Fourth District, Division One
ENVIRONMENTAL-STATUTORY ATTORNEY FEE AWARD TO SUCCESSFUL LITIGANT UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
In 1994, the superior court granted Association's petitions for writ of mandate, ruling the EIR on the project was inadequate under the California Environmental Quality Act. The court ordered Riverside's Board of Supervisors to set aside the EIR certification and to suspend all activity related to the landfill project until they complied with CEQA. The parties settled the question of statutory attorney fees to the Association. Riverside prepared a new EIR, which was challenged by Association. The superior court again commanded Riverside to set aside the certification of the EIR and all project approvals based on the EIR. Association's motion for attorney fees for the new challenge to the EIR was granted. The superior court was reversed on the substantive issue and the attorney fee award appeal was then considered in this opinion.
HELD: To recover fees under the statute, a claimant must show he or she was successful in the action. When an appellate court reverses a judgment ordering issuance of a writ of mandate, the attorney fees award must also be reversed. Association's argument that its "adversarial perspective" was useful to the trial court is beside the point. A judicial challenge to an EIR may frequently have some public benefit because it provides a forum for ensuring that the public entity has met its obligations. The petitioner is entitled to attorney fees only if he or she is successful in the challenge. Reversed.
Wasserman's Archived Appellate Summaries
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