Wasserman's Appellate Summaries
June 15, 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.
United States v. Gonzalez
Case No. 97-10520
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-JURY SELECTION-PRESUMED BIAS-FAILURE OF JUROR TO STATE THAT THEY COULD BE FAIR AND IMPARTIAL-NO ACTUAL PREJUDICE REQUIRED
Gonzalez was convicted of conspiracy, cocaine distribution, and money laundering. During jury selection juror Camacho, indicated that her husband had a drug problem, which led to their divorce. It was a painful experience, but she would try to put that aside as a juror. The juror never stated affirmatively that she could put aside her personal experiences, nor did she ever state that she could be fair or impartial. The judge refused to excuse her for cause, and she became a juror when one of the original jurors was excused.
HELD: The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice. Courts have found actual bias where, based upon personal experience, a potential juror stated he could not be impartial when evaluating a drug dealer's testimony. Although actual bias is the more common ground for excusing jurors for cause, in extraordinary cases, courts may presume bias based upon the circumstances. Reversed and remanded.
Fischer v. SJB
Case No. 98-56586
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-AMERICANS WITH DISABILITIES ACT-PREVAILING PARTY WHEN ONLY INJUNCTIVE RELIEF-TOTAL DISALLOWANCE OF FEES FOR AN UNDETAILED ATTORNEY FEE APPLICATION
Fischer is blind. He and his parents went to the Cedar Creek Inn in Palm Desert, California to have dinner. Employees refused to allow him to enter the restaurant with his service dog. Fischer sued for violation of the Americans with Disabilities Act. The ADA action was settled. Fischer's application for attorney fees was denied because he was not a prevailing party.
HELD: The settlement agreement in this case includes an equitable relief provision which requires the Inn to print a four paragraph, 430 word statement describing its policy of nondiscrimination toward people with disabilities, and specifically non discrimination towards blind people with service dogs. A plaintiff can be the prevailing party based exclusively on injunctive relief, without any monetary award. The Court then described the application of the Lodestar figure method for determining attorney fees. Although contemporaneous records of time expended on a case are preferred, that is not a basis for denying fees entirely. Fischer's application for fees provided a summary of the time spent on a broad category of tasks such as pleadings and pretrial motions and noted that detailed time slips are available. The court could have requested further documentation, or reduced the fees. Total denial of fees was an abuse of discretion. Reversed and remanded.
Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency
Case Nos. 99-15641/99-15771
U.S. Court of Appeals for the Ninth Circuit
REAL PROPERTY-TEMPORARY MORATORIUM ON DEVELOPMENT IS NOT A TAKING OF PROPERTY-STATUTE OF LIMITATIONS
The lead plaintiff, Tahoe-Sierra Preservation Council, Inc. is an association of Tahoe-area property owners. Each individual property owner has alleged that each of several land-use regulations enacted in the 1980s, principally a temporary planning moratorium to halt development while a new regional land-use plan was being devised, constituted a taking of his property under the Fifth and Fourteenth Amendments. The plan was enjoined immediately after it was enacted and was never implemented. Judgment was for the TRPA.
HELD: To halt the increasing rate of environmental damage to Lake Tahoe a regional planning group was created to study and determine appropriate corrective action. Thirty-two months after it had initially suspended development, TRPA adopted a new land-use plan. Most regulatory takings cases should be resolved by balancing the public and private interests at stake, with three primary factors weighing in the balance: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. A categorical taking occurs when regulations deny all economically beneficial or productive use of land. The temporary development moratorium enacted by TRPA did not deprive the plaintiffs of all of the value or use of their property and did not effect a categorical taking, even for a temporary period. Some of the claims were time barred. Affirmed in part and reversed in part and remanded.
United States v. Asarco
Case No. 98-36247
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-JURISDICTION FOR EPA REGULATIONS ONLY IN THE U.S. CIRCUIT COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
In 1983, the Environmental Protection Agency placed the Bunker Hill Mining Site on the National Priorities List, a list of the most contaminated sites in the nation. The list is maintained by the EPA pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act. In 1996, the United States filed an action against various owners and operators of mining and mineral processing facilities to recover, among other things, damages under CERCLA for injury to natural resources. The district court found that a boundary had been drawn for the potion of the property on the NPL, the boundary had not been expanded by administrative action, and this portion was subject to the extended time limit for suit. The limitation period had expired for the portion outside the boundary.
HELD: Under CERCLA, a cause of action for natural resource damages must generally be filed within three years of the discovery of the loss and its connection with the release in question. For facilities listed on the NPL, CERCLA provides an action for damages maybe commenced within 3 years after the completion of the remedial action (excluding operation and maintenance activities). CERCLA's jurisdictional provision provides for review of any regulation promulgated only in the Circuit Court of Appeals for the United States District of Columbia. The Court did not have jurisdiction to decide whether the boundary of the contaminated site had been properly expanded. Vacated and remanded.
Rice v. Robert Trammell Crow
Case No. B030074
California Court of Appeal, Second District, Division Two
CIVIL-SETTLEMENT OF ONE LAWSUIT AS BARRING SUIT OF AFFILIATED PARTIES-RETRAXIT-RES JUDICATA-COLLATERAL ESTOPPEL
Crow, Rice and Pardee formed Crow, Rice, Pardee, Inc. for the purpose of developing a property in Los Angeles. The project turned into a fiasco of fighting over who got what. Rice wound up purchasing the property, putting CRP into a Chapter 7 Bankruptcy proceeding and purchased the bankrupt DRP's claims against the other partners and parties. Judgment was for the partners, which was reversed on appeal as to the claims assigned from bankruptcy. Concurrently Rice sued his former counsel for malpractice. Rice settled this action. The settlement agreement provided for a release of each of the parties and such other party's affiliated and subsidiary corporations, directors, officers, shareholders, employees, partners, representatives, agents, attorneys, insurers, adjusters, administrators, executors, heirs, and assigns. When the suit between the partners was remanded, they asserted the affirmative defenses of retraxit and collateral estoppel, based on the settlement with the law firm. The trial court granted the defendant's motion for summary judgment.
HELD: In general an attorney-defendant in a legal malpractice action steps into the shoes of the original offending defendant (by virtue of the case-within-a-case doctrine), dismissal with prejudice of the malpractice action operates as a retraxit barring suit against the original offending defendant. At common law, a "retraxit" was "an open and voluntary renunciation of the suit in open court. A dismissal with prejudice is the modern name for a common law retraxit. A retraxit invokes the principles of res judicata. The traditional aspect of res judicata has been referred to as "res judicata" or "claim preclusion." A second aspect ot res judicata is issue preclusion. Any issue necessarily decided in such dismissed litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit as to the parties on a different cause of action. Res judicata is applicable only to the same causes of action between the same parties or their privies. Collateral estoppel is applicable to bar relitigation of issues previously litigated between the same parties on a different cause of action. The retraxit between ALH and Rice in the malpractice action does not bar his suit against defendants. Reversed.
People v. Melvin J.
Case No. B128478
California Court of Appeal, Second District, Division Five
JUVENILE-REQUIREMENT FOR FINDINGS BEFORE REVOCATION OF PROBATION AND COMMITMENT TO THE CALIFORNIA YOUTH AUTHORITY-PROPOSITION 21
Melvin J was 16 years old, in February 1998 when he committed a felony assault with a deadly weapon. In 1998, the juvenile court made Melivn a ward of the court and committed him to the California Youth Authority. The order of commitment was stayed for six months. Melvin violated probation and was committed to the CYA.
HELD: The Court affirmed the first commitment order with probation of October 1998. The hearing held in November 1998 under the former Welfare and Institutions section did not make the required findings before revocation of probation under the new section. In March 2000 Proposition 21, known as the Gang Violence and Juvenile Crime Prevention Act of 1998, made numerous changes to the Penal Code and Welfare and Institutions Code relating to the adult and juvenile justice systems. It amended the Welfare and Institutions Code by deleting the requirement of a supplemental petition when modifying a previous order to impose a more restrictive type of custody, including commitment to the California Youth Authority. Under the new provisions of Proposition 21, the juvenile court will only be required to decide if a probation violation occurred prior to ordering into effect a stayed California Youth Authority commitment. Since the juvenile court has already determined that such a violation occurred, there would be no reason to remand the case for another hearing on the same issue. However, the omission is prejudicial and must be reversed and remanded for such findings.
Hamer v. Hamer
Case No. A087332
California Court of Appeal, First District, Division Four
FAMILY LAW-DISSOLUTION-WAIVER OF RIGHT TO COLLECT SUPPORT ORDERS
The parties were divorced in 1993. The support order was made by stipulation, but not signed immediately by the ex wife, Chris. While this stipulation was outstanding, the husband, Greg secured a modification to the first stipulation. Chris then filed the stipulation and a judgment was entered pursuant to the stipulation. Greg paid support according to the he modified order. In 1998, Chris signed an affidavit of arrearage for the period May 1993 through February 1998. Based on Chris's affidavit, the Family Support Division of the District Attorney's office obtained a wage assignment order on April 15, 1998, to collect arrearages of $23,252.79 for child support and $1,750.21 for spousal support. On motion of Greg the trial court quashed the April 15, 1998 wage assignment order, and enjoined Chris from any further attempt to collect the difference between the amount of the two orders. The ground for the order was waiver by Chris.
HELD: The current state of the law is that a judgment for child or spousal support, once entered, is per se enforceable until paid in full, and is not retroactively modifiable either as to accrued arrearages or any interest due thereon. Greg was not free to simply ignore the judgment-as he admittedly did. Having failed to avail himself of the proper procedures for seeking modification of the support orders contained in the November 1993 judgment, Greg is in no position to demand or obtain retroactive approval of this conduct. Reversed.
Southwest Research Institute v. Unemployment Insurance Appeals Board/Yingst
Case No. E025396
California Court of Appeal, Fourth District, Division Two
WORKERS COMPENSATION-INDEPENDENT CONTRACTOR-EMPLOYEE
Yingst worked as a vendor for Southwest, obtaining gasoline samples for testing. Southwest considered Yingst to be an independent contractor. The UIAB held that he was an employee and awarded unemployment insurance benefits. Southwest sought mandate. The trial court granted judgment to the UIAB.
HELD: The most important gauge of whether an employment relationship exists is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. The burden of establishing an independent contractor relationship is upon the party attacking the determination of employment. Upon review of the record the Court found that Yingst was not an employee of Southwest. Reversed.
Teyssier v. The City of San Diego
Case No. D033171
California Court of Appeal, Fourth District, Division One
TAXATION-RENTAL UNIT BUSINESS TAX-EXCISE TAX NOT RESTRICTED BY PROPOSITIONS 13 AND 218
In 1942, City began assessing a Rental Unit Business Tax on apartments and hotels, levied on every person conducting, operating or managing an apartment house or hotel, as defined by the State Housing Act. In 1950, the SDMC was amended to provide for assessments on rental housing of six or more units. The tax went up over the years. Teyssier filed suit to have the tax declared an unconstitutional tax on real property. Judgment was for the city, on the ground the tax was not assessed against real property, but was an excise tax.
HELD: Propositions 13 and 218 limit the methods by which local governments exact revenue from taxpayers without their consent. These propositions now incorporated into the California Constitution require a property be taxed on an ad valorem basis, that is, in proportion to its value. The RUBT is a flat tax assessed on a residential rental unit with the amount of tax determined by the number of rental units contained in the dwelling. As such, the tax is not based on the value of the property and cannot be characterized as an ad valorem tax. The trial courts correctly concluded, the RUBT is an excise tax imposed for general governmental purposes, rather than a property tax, and thus is not covered by article XIII. Affirmed.
Frank L./San Diego Health and Human Services Agency v. Sonia P.
Case No. D034497
California Court of Appeal, Fourth District, Division One
FAMILY LAW-STANDING OF MOTHER TO RAISE ISSUE OF EFFECTIVENESS OF COUNSEL FOR CHILD-EFFECT OF PLACEMENT ON SEPARATION OF SIBLINGS
A January 1998 dependency petition alleges Mother was incarcerated, there was no other adult available to care for Frank and his father's whereabouts were unknown. A true finding was made on the petition. The family history is one of many individual and family problems. Aunt, who had not seen Frank since he was one year old, was willing to take Frank and become his guardian, and was willing to take another child, Ciera if her other foster care child was removed from her home. The court ordered Frank be placed in North Carolina with Aunt, and that funds be provided for telephone calls among the siblings. Sonia P. (Mother) appeals the juvenile court's order placing her son Frank with his paternal aunt in North Carolina because separating Frank from his siblings was not in his best interests. Mother also contends Frank received ineffective assistance of counsel because attorney represented him as well as two of his siblings.
HELD: Generally, parents can appeal judgments or orders in juvenile dependency matters. A parent must also establish they are a party aggrieved to obtain a review of a ruling on the merits. A parent cannot raise issues on appeal from a dependency matter that do not affect her own rights. The interest of siblings or other relatives in their relationship with the minor is separate from that of the parent. Mother does not have standing to contest the finding that it is in Frank's best interest to be placed with Aunt. In response to our request, the Agency also stated Mother does not have standing to assert an ineffective assistance of counsel argument on Frank's behalf. Affirmed.
Metropoloitan Water District of Southern California v. Imperial Irrigation District
Case No. B119968
California Court of Appeal, Second District, Division Five
ORDER
Minor modification of opinion not effecting the judgment.
People v. Miranda
Case No. S078243
Supreme Court of California
CRIMINAL-HEARSAY EXCEPTION FOR TESTIMONY OF CODEFENDANT AT THE PRELIMINARY HEARING-PROPOSITION 115
The case against Miranda was dismissed when at the joint preliminary examination of multiple defendants charged with murder and other crimes, the prosecutor sought to admit, testimony against Miranda and a codefendant, Morales, the testimony of an investigating officer relating the confession of a nontestifying codefendant, implicating Miranda and Morales in the crimes. The People's motion to reinstate the complaint was denied. The Court of Appeal reversed.
HELD: Proposition 115, enacted in 1990, adopted article I, section 30, subdivision (b), of the California Constitution, declaring hearsay evidence admissible at preliminary examinations in criminal cases, as may be provided by law. The Proposition added a provision to the Evidence Code providing an exception to the genera rule that at a preliminary examination all hearsay declarants must be made available for cross-examination. No basis in the language of Proposition 115 as construed, or in the federal decisions applying confrontation clause principles, for creating an accomplice confession exception to the general rule permitting admission of hearsay evidence at preliminary examinations. The testimony was admissible for the limited purpose of establishing probable cause to hold defendant for trial. Affirmed the Court of Appeal.
Wasserman's Archived Appellate Summaries
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