Wasserman's Appellate Summaries
June 8, 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.
Scott v. Bernard Brothers
Case No. 98-01587
U.S. Court of Appeals for the Ninth Circuit
SECURITIES-PRIVATE SECURITIES LITIGATION REFORM ACT-ELIMINATION OF SECURITIES FRAUD AS PREDICATE ACT FOR APPLICATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT-RETROACTIVE APPLICATION OF AMENDMENT TO STATUTE
In 1994 Scott agreed to trade his shares of his solely owned corporation, Scott Walker, for shares of White Plains. In 1997 Scott brought a civil action under the Racketeer Influenced and Corrupt Organizations Act and for common law fraud in connection with the sale of securities against the Bernard Brothers. The district court dismissed all claims but the common law fraud.
HELD: The Private Securities Litigation Reform Act amended RICO to eliminate as a predicate for civil claims under RICO any conduct actionable as fraud in the purchase or sale of securities. The PSLRA became effective on December 22, 1995. Prior to the amendment, the legal consequences of violation of the securities laws included liability under the securities laws and under RICO, while after the amendment, the legal consequences only include liability under the securities laws. There is a presumption against retroactive application of legislation. Congress has not expressly provided for the contrary. Retroactive effect turns on when the primary conduct at issue in the suit took place, not when the complaint was filed or claims were raised. The definitive acts for purposes of retroactivity under the PSLRA are the dates of the defendants' conduct. Reversed and remanded.
Juarez v. Boy Scouts of America
Case No. A085271
California Court of Appeal, First District, Division Two
(Certified for publication with the exception of part IIIA.)
TORTS-SEXUAL MOLESTATION-RESPONDENT SUPERIOR-NEGLIGENCE IN APPOINTING SCOUTMASTER-PROPERTY OWNER LIABILITY FOR SCOUTMASTER MOLESTING PERSON ON CHURCH PROPERTY-DISCOVERY-EVIDENCE PRECLUSION SANCTION
Juarez was a member of the Boy Scouts of America when he was molested by the troop scoutmaster. He sued the Scouts and the Church in which the meetings were held. Summary judgment was granted to the Scouts and the Church following the imposition of evidentiary sanctions. Interrogatories were served on Juarez which included specific questions concerning whether Juarez had evidence of any complaints that had been made about Paz before Juarez was abused; whether he contended the Church and the Scouts should have known of any abuse; and what facts, evidence, and witnesses he had supporting such a claim. Juarez evaded answering these interrogatories and after several motions which resulted in orders to respond the trial court entered its order imposing issue-and-evidence-preclusion sanctions. The Scouts obtained a protective order in response to Juarez's discovery request for the "ineligible volunteer file" assembled for Paz in 1994 after Juarez's allegations.
HELD: Imposing the sweeping doctrine as respondeat superior under the facts of the case would be contrary to the cases which have consistently held that under the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer. There is nothing in the record indicating Paz had a prior criminal record or documented history of sexual misconduct. Nothing become known during Paz's service as assistant scoutmaster that should have raised questions about his fitness for that position. The Scouts were not negligent in appointing him as scoutmaster. Juarez's pattern of discovery abuse justified the court's imposition of sanctions. Juarez has not shown that the information contained in the ineligible volunteer files is directly relevant to any disputed issue in this case; let alone, that there is a compelling need for this information that outweighs the right to privacy. Affirmed the trial court's discovery sanction and issuance of a protective order. Additionally, it was held that the trial court properly granted summary judgment on all of Juarez's causes of action except one. The only viable cause of action is premised on the theory that the Scouts failed to take reasonable measures to protect Juarez from sexual molestation by Paz. Such a legal duty was owed to Juarez, and that the record adduced on summary judgment has raised triable issues of fact as to whether the duty of care was breached and caused harm to Juarez. There are no allegations or evidence to support the conclusion that the Church had any duty or ability to screen, train, or supervise the adult volunteers working with Troop. Reversed as to the Scouts and remanded. Affirmed as to the Church.
Orange County Social Services Agency v. Carl B.
Case No. G025902
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-TERMINATION OF PARENTAL RIGHTS-INEFFECTIVE COUNSEL-CONFLICT OF INTEREST IN REPRESENTING BOTH BROTHERS RELATING TO SIBLING VISITATION
The minor children, Cliffton and Zachary were taken from their parents. The parents, Carl and Deborah, have a history of drug and alcohol abuse. Deborah, the mother, was diagnosed as bipolar. The SSA had formerly received 16 child abuse reports involving this family. A four-month-old child had, died when Deborah accidentally rolled over onto the baby in her sleep, smothering her. Carl made improvements in his personal life, a job, off drugs and feeling in control of himself. The court denied Carl's petition because it found he had not met his burden of showing changed circumstances, since he had previously relapsed.
HELD: In determining if parental rights should be terminated the court must balance the strength and quality of the natural parent-child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. When the juvenile court terminates parental rights and refers a child for adoption, it retains jurisdiction over that child until the adoption is effected. During that interim period, the juvenile court can make visitation orders as it sees fit, and sibling contact should remain the subject of its concern. Here, the juvenile court did consider sibling visitation. It adopted SSA's report, which recommended sibling visitation of two hours per month, "provided the prospective adoptive parents are willing to facilitate. The juvenile court erred in failing to appoint independent counsel for each brother. The brothers had an interest in the frequency and duration of their visits during the period of time between termination of parental rights and the final adoption order. Affirmed the termination of parental rights. Reversed the sibling visitation order.
Culligan v. State Compensation Insurance Fund
Case No. A085913
California Court of Appeal, First District, Division Two
(Certified for publication with the exception of parts III and IV.)
INSURANCE-WORKERS COMPENSATION GAP FILLER POLICY-WORKERS COMPENSATION POLICY EXCLUDES OTHER WORK RELATED INJURY
Several workers employed by Culligan sued for wrongful termination and related causes of action. They alleged retaliatory termination after complaining about noxious fumes from the next door cleaning business. Two of the employees received worker's compensation. State Fund accepted the defense of the wrongful termination causes of action, but under a reservation of rights, dependent on the appeal of two court of appeal decisions holding that the worker's compensation coverage covered wrongful termination causes of action. When the California Supreme Court reversed these decision the State Fund withdrew its defense. When Culligan again tendered the workers claim, under a different gap filler portion of the policy, State Fund rejected the tender. Culligan sued. Summary judgment was for State Fund.
HELD: The Workers' Compensation coverage of the policy for bodily injury was subject to the exclusion for, any obligation imposed by a workers' compensation, occupational disease, unemployment compensation or disability benefits law or any similar law and damages arising out of the discharge of, coercion of or discrimination against any employee in violation of law. Employers' liability insurance is traditionally written in conjunction with workers' compensation policies, and is intended to serve as a 'gap-filler,' providing protection to the employer in those situations where the employee has a right to bring a tort action despite the provisions of the workers' compensation statute or the employee is not subject to the workers' compensation law. Generally, these two kinds of coverage are mutually exclusive. The evidence demonstrated that any asserted "bodily injury" or "disease" claims from the workers' claim concerned employees who were employed by Culligan and subject to the remedy of the workers' compensation law. As a matter of law coverage was precluded by the workers' compensation exclusion. Affirmed.
Ball v. GTE Mobilnet of California
Case No. C031783
California Court of Appeal, Third District
OTHER-FEDERAL PREEMPTION OF REGULATION OF CHARGES FOR CELLULAR TELEPHONE SERVICES
Ball and others joined in an unfair and unlawful business practices action to prevent all providers of cellular telephone services from charging for non-communication time, primarily non-talking time, including "rounding-up" to the next full minute. Based on federal preemption the trial court sustained the defendants' demurrer and entered a judgment of dismissal.
HELD: Congress amended section 332 of the Communications Act to provide that; no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services. Plaintiffs can invoke state law to complain that such charges, before and after August 8, 1995, were not disclosed; this is because such disclosure is a term and condition over which the state can exercise its laws. The federal statute only preempts a state law action challenging the reasonableness or legality of the particular rate or rate practice itself. Plaintiffs can also claim that defendants violated their pre-August 8, 1995 tariffs on file with the California Public Utilities Commission. Reversed.
People v. Brewer
Case No. B132056
California Court of Appeal, Second District, Division Five
CRIMINAL-PROCEDURE-MOTION TO SUPPRESS LIMITED TO SEARCH AND SEIZURE ISSUES-CREDIBILITY OF DECLARATIONS IN SUPPORT OF MOTION TO SUPPRESS-PROCEDURE TO RAISE MIRANDA ISSUE-VOLUNTARY STATEMENT ADMISSIBLE WITHOUT MIRANDA ADVISEMENT
The deputy sheriff made a traffic stop and could smell the odor of marijuana coming from inside the vehicle when he approached. When Brewer exited the vehicle the deputy observed a clear plastic baggie that appeared to contain marijuana protruding from the breast pocket of defendant's shirt. Brewer was placed in the back of the deputy's vehicle. A search of the vehicle revealed $7,000. When questioned about the money Brewer gave contradictory responses. The deputy of his backup never gave Miranda warnings to Brewer before questioning him. Brewer refused to consent to a search of his house and a warrant was secured. Brewer contends that he asked for an attorney at that time. The affidavit for the warrant included statements by Brewer. The search of the house revealed a quantity of marijuana. After Brewer's motion to suppress was denied he was convicted of possession of marijuana for sale.
HELD: Brewer's motion to suppress depended on credibility in view of conflicting testimony. The deputy testified that defendant invoked his right to an attorney at the end of their conversation relating to consent to search, and as soon as he invoked his right to an attorney he ceased talking to him. The trial judge accepted the deputy's version of what happened. Evidence obtained in violation of Fifth and Sixth Amendment principles cannot be suppressed by use of a Penal Code section 1538.5 hearing, since such a hearing is limited to search and seizure issues. The proper means of suppressing statements obtained in violation of Miranda is by use of a hearing pursuant to Evidence Code section 402. A finding at an Evidence Code section 402 hearing that a statement was taken in violation of Miranda would only justify the suppression of the statement itself and would not justify the further suppression of other evidence, including physical evidence, obtained through use of the unlawful but noncoerced statement. Even if Brewer's motion in the trial court is considered as being made under Evidence Code section 402, the "fruit" of the Miranda violation in the instant case is not subject to suppression as a "fruit" of the poisonous tree if the trial court was correct in its determination that the statements taken in violation of Miranda were noncoerced. There is nothing in the record that indicates that psychological or physical coercion took place that overcame defendant's will and rendered his statements to involuntary. Brewer never obtained a ruling from the trial court on the issues he now seeks to raise on appeal concerning the existence of allegedly intentional or recklessly misleading statements and omitted material facts, whether the warrant should be retested, and whether it would support a finding of probable cause if it was retested and the point is waived. Affirmed.
People v. Ayala
Case No. S009108
Supreme Court of California
CRIMINAL-DEATH SENTENCE
Ayala is under a sentence of death for multiple murders. Extensive review of the facts and issues relating to systematic exclusion of Hispanics and the young merely by presenting statistical evidence of under representation in the jury pool, venire, or panel, peremptory challenges based on age, excuse of jurors for cause, failing to excuse jurors for cause, polygraph and medical examination of witness, sanctions for perjury, ineffective assistance of counsel, timeliness of notice of aggravating evidence, evidence of uncharged crime, limiting cross examination of a witness. Affirmed.
Boysaw v. Superior Court
Case No. S080174
Supreme Court of California
OTHER-CONTEMPT-TONE OF VOICE-NECESSITY OF WARNING WHEN CONTEMPT BASED ON YELLING AT JUDGE-RECITAL OF CONTEMPT IN IMMEDIATE VIEW AND PRESENCE OF COURT
Boysaw, is an attorney. He was cited for contempt for yelling at the judge when he disagreed with the judge's rulings and other behavior.
HELD: Contempt committed in the immediate view and presence of the court, known as direct contempt, may be treated summarily. All that is required is that an order be made reciting the facts, adjudging the person guilty and prescribing the punishment. Such an order is valid only if it recites facts with sufficient particularity to demonstrate on its face that petitioner's conduct constituted a legal contempt. The recital of facts in the order for contempt made it clear that the offense was committed in the presence of the court. The order is not defective because it did not recite that the contempt was in the immediate view and presence of the court. When an order of contempt is based on the tone of voice used by the alleged contemnor, the order must recite that he was warned his tone of voice was objectionable. To support the finding of direct contempt in this case, the order should have recited that petitioner was warned that the tone of voice he was using toward the court was objectionable. Order of contempt annulled.
Jang v. State Farm Fire and Casualty Company
Case No. A085617
California Court of Appeal, First District, Division Two
ORDER-INSURANCE-STATUTE OF LIMITATIONS-EQUITABLE TOLLING
Modification of opinion filed herein on May 24, 2000, not effecting the judgment.
Western Crop Protection Association v. Gray Davis
Case No. C029727
California Court of Appeal, Third District
(Certified for publication of modifications to the published opinion filed May 9, 2000.)
ORDER
The case relates to the methodology used by the state in determining what chemicals should be listed as toxic. Modification of opinion not effecting the judgment.
Wasserman's Archived Appellate Summaries
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