Wasserman's Appellate Summaries
June 7, 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.
In Re Donovan Corporation/Stanley v. McCormick, Barstow, Shepard
Case No. 98-17313
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-STANDING OF BANKRUPTCY TRUSTEE TO INITIATE LITIGATION
The United States Trustee, Stanley, sought disgorgement of payments previously received by appellee, McCormick, Barstow, Sheppard, Wayte & Carruth, counsel for the former debtor in possession, because the estate did not have enough money to pay all the administrative expenses. The bankruptcy judge denied the motion. The district court dismissed the appeal on the ground that the United States Trustee lacked standing.
HELD: The Bankruptcy Code states that; the United States trustee may raise and may appear and be heard on any issue in any case or proceeding under this title but may not file a plan of reorganization under Chapter 11. The trustee had standing to appeal the bankruptcy court's denial of her motion. Reversed and remanded.
Monterey Plaza v. Local 483
Case No. 99-16714
U.S. Court of Appeals for the Ninth Circuit
LABOR-PLEADING RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT CLAIM-RES JUDICATA-PREDICATE ACTS BASED ON PREVIOUS SUITS BETWEEN THE PARTIES
This is another of several actions arising out of long labor dispute. Monterey filed a Racketeer Influenced and Corrupt Organizations Act action, contending that the Union engaged in a highly sophisticated coordinated corporate campaign designed to effect the Hotel's economic ruin rather than to advance any legitimate bargaining agenda. The district court dismissed, holding the claim as res judicata and that Monterey failed to state predicate acts of mail and wire fraud.
HELD: The Union did not obtain property by deceiving the Hotel or its customers; the Union was simply carrying on a strategy in a protracted labor dispute. The Union's conduct may have been vexatious or harassing, but it was not acquisitive. The purpose of the mail fraud and wire fraud proscriptions is to punish wrongful transfers of property from the victim to the wrongdoer, not to salve wounded feelings. Monterey failed to state the requisite predicate acts of mail and wire fraud. Additionally, to state a federal RICO claim, the Hotel must allege that all of the predicate acts taken together constitute a single course of conduct aimed at benefiting the wrongdoer by harming the Hotel. The Hotel cannot attempt to separate prior torts (those that were subject of the state cases) from recent ones in an effort to create and preserve a new RICO claim distinct from its state causes of action. The primary rights at stake in prior suits are the same as those at issue in the present action: the protection of the Hotel's business and its right to be free from the Union's disruptive activities. Affirmed.
United States v. Fleming
Case No. 99-10324
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-TECHNICAL DEFECT IN INDICTMENT-SENTENCING-RIGHT TO ACCEPTANCE OF RESPONSIBILITY DOWNWARD ADJUSTMENT-RELEVANT EVIDENCE
Fleming was a paralegal. He believed that the practice of law should not be limited to lawyers. In August 1997 Fleming filed a civil action in the Eastern District of California that named as defendants the State Bar of California and the American Bar Association, among others. Fleming alleged a number of constitutional and antitrust violations. On a motion by the defendants, Judge Coyle dismissed the case for failure to state a claim for which relief can be granted and denied a request for a change of venue. Fleming appealed. Fleming then drafted and sought to record a document for a $10,000,000 lien on real property owned by Judge Coyle. The staff allowed the document to be lodged but not filed with the court. Fleming went to the Coyles' home in Fresno and left a copy of the lien in the Coyles' mailbox. Fleming was convicted of attempting to influence a federal district judge in a civil case. The district court sentenced Fleming to two concurrent fifteen-month terms of incarceration and two years of supervised release.
HELD: Challenges to minor or technical deficiencies in an indictment, even where the errors are related to an element of the offense charged and even where the challenges are timely, are amenable to harmless error review. Both counts of the indictment charged Fleming with an attempt to influence, intimidate and impede a Senior United States District Court Judge in the discharge of his duties. The lack of the words "pending proceeding" in the indictment was a technical deficiency subject to harmless error review. That Judge Coyle and Mrs. Coyle were upset and concerned by Fleming's actions does not necessarily mean that such a reaction was, in fact, a natural and probable effect of Fleming's actions. The way they reacted does tend to make it more likely that such a reaction was a natural and probable effect of Fleming's actions. That is all that is required for evidence to be relevant. Fleming was not entitled to a downward adjustment for acceptance of responsibility. Even if a defendant cooperates after his arrest and although he called no witnesses at trial but refused to admit the intent element of his offense at the sentencing hearing, the district court did not clearly err in concluding that he did not accept responsibility for his offense. Affirmed.
United States v. Anglin
Case No. 99-10386
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-CONTRADICTION IN TERMS NEGOTIATED PLEA AGREEMENT RELATING TO THE RIGHT TO APPEAL-MISTAKE IN PLEA AGREEMENT
Anglin was an officer of Aukaina. She told her employees that their payroll taxes had been properly accounted for and paid. Having no reason to doubt her credibility, the employees believed and relied upon these misrepresentations. In truth, Anglin and her co-defendants diverted the withholdings to her checking account. In a plea agreement Anglin pleaded guilty to a single count of conspiracy to impede the United States in the ascertainment and collection of taxes. The plea agreement retained the right to appeal an upward adjustment in her sentence in one paragraph of the agreement and gave a general right to appeal in another.
HELD: There is no constitutional right to appeal. A prospective appellant must therefore find the right in an applicable statute. This court regularly enforces "knowing and voluntary" waivers of appellate rights in criminal cases, provided that the waivers are part of negotiated guilty pleas in context. The subparagraph in question reads like an introductory phrase without any grounds for appeal set out or reserved. It is clearly and explicitly inconsistent with the well-developed waiver embodied in the three prior paragraphs. Its presence in the agreement was clearly a mistake. Anglin knowingly and voluntarily waived her right to raise these issues in this forum, and, second, that the government did not violate her plea agreement. Appeal dismissed.
Montgomery Ward v. Imperial Casualty Indemnity
Case No. B126862
California Court of Appeal, Second District, Division Seven
INSURANCE-TREATMENT OF SELF INSURANCE AS UNDERLYING INSURANCE FOR PURPOSE OF EXCESS COVERAGE-DUTY TO DEFEND
Montgomery Ward was a self insurer. It maintained self-insured retentions for losses and acquired Comprehensive General Liability for losses in excess of the Self Insured Retention, that is, the insurer agreed to indemnify Montgomery Ward against "ultimate net loss" or "all sums" Montgomery Ward became obligated to pay, to the extent such losses exceeded a specified amount, referred to as the "retained limit" or SIR. Montgomery Ward sued four insurers who issued successive comprehensive general liability policies to Montgomery Ward during the period in question. Montgomery Ward sought coverage for defense and indemnity for costs it had incurred because of alleged environmental contamination occurring over a number of years at three automotive service centers it operated in California. After disposing of certain issues by summary adjudication, the trial court dismissed all remaining causes of action in Montgomery Ward's suit.
HELD: Self-insured retentions are not primary insurance, and the principle of horizontal exhaustion does not apply. Imperial had a duty to defend Montgomery Ward (and Imperial's cross-appeal on this point was timely). Under the terms of its policy Imperial had a duty to defend Montgomery Ward, and on remand Montgomery Ward must be given an opportunity to prove its damages as a result of Imperial's breach of the insurance contract.
Simi Valley Adventist Hospital v. Bonta
Case No. B117712
California Court of Appeal, Second District, Division Four
GOVERNMENT-COMPUTATION OF MEDICAL REIMBURSEMENT-CHANGE IN METHOD OF COMPUTATION DID NOT OPEN ADMINISTRATIVE REVIEW PERIOD-LEGITIMACY OF AGENCY REGULATION FOR COMPUTATION OF MEDICAL REIMBURSEMENT
Under the Medi-Cal legislative scheme California grants financial assistance to beneficiaries who are unable to afford medical services and care. participating health care providers receive reimbursement for providing medical care to Medi-Cal beneficiaries. The amounts of reimbursement are subject to cost guidelines which establish a maximum reimbursement ceiling calculated at the lesser of (1) customary charges; (2) allowable costs determined in accordance with applicable Medi-Care standards and (3) the all-inclusive rate per discharge. The rate per discharge is further refined by peer group limitations to yield a Maximum Inpatient Reimbursement Limit. The MIRL was at various times computed as an average and at the midpoint rate. When the MIRL computation method was again converted to the midpoint of the MIRL there was a reduction in reimbursement to the hospital participants. After petitioners received their respective MIRL letters concerning revisions to the MIRL formula, they requested administrative adjustment of the rates applicable to the closed settlement years referred to in the flow through recalculation figures provided with the letters. The adjustments were denied and petitioners pursued administrative appeals. The Administration Law Judge found that the appeals were untimely as to the closed fiscal periods. The hospitals sought mandate to compel recomputation.
HELD: A hospital provider may request an administrative adjustment to its reimbursement rate within 60 days after notification of the applicable rate. The MIRL letter specifically advised that "final settlement years whose appeal rights have been exhausted or not previously utilized will not be given new appeal rights." The decision that the MIRL letter did not constitute a new tentative or final settlement to reopen the appeal period and was not arbitrary, capricious or an abuse of discretion. Such decision was legally mandated by the Department regulations. Rule making by an administrative agency is quasi legislative in character and has the same force and effect of law. The trial court's ruling was limited to review of the Department's order denying petitioners' appeals, regarding certain claims for reimbursement, as untimely. The court never reached or addressed petitioners' claims concerning the legitimacy of the MIRL methodology. Affirmed as to the untimeliness of the administrative appeals regarding certain specific claims for reimbursement. Since the trial court failed to rule on the legitimacy of Department regulations relating to the methodology of reimbursement calculations, the case must be reversed and remanded.
People v. Toledo
Case No. B126748
California Court of Appeal, Second District, Division Two
CRIMINAL-ATTEMPTED TERRORIST THREAT-SENTENCING-ENHANCEMENT FOR FINDING OF SERIOUS FELONY BY COURT
The case arises out of a domestic dispute and threats made to his wife by Toledo. Toledo was convicted of attempted terrorist threats and of assault with a deadly weapon or by means of force likely to produce great bodily injury. His sentence was enhanced for a serious felony by an additional five years.
HELD: Where prior conviction allegations are bifurcated and the defendant waives his right to a jury trial, the trial court can make a factual finding that defendant personally used a weapon in committing the current offense and find the charged offense to be a serious felony. While the jury may have found Toledo did not personally use a deadly weapon, the scissors, when making an attempted terrorist threat, such a finding does not necessarily conflict with a finding that Toledo did use the scissors when assaulting his wife with the scissors. The evidence supports this finding. The statutory definition of a terrorist threat is that any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or that of his family. The statutory provision for an attempted crime is that; Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, an attempt to commit a crime requires only a specific intent to commit it and a direct but ineffectual act done towards its commission. Toledo was properly convicted of attempt. Affirmed.
People v. Avila
Case No. H019572
California Court of Appeal, Sixth District
ORDER
Modification of opinion not effecting the judgment.
People v. Spirlin
Case No. E023770
California Court of Appeal, Fourth District, Division Two
ORDER
Modification of opinion not effecting the judgment.
Wasserman's Archived Appellate Summaries
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