Wasserman's Appellate Summaries
June 19, 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.
People v. Hanson
Case No. S078689
Supreme Court of California
CRIMINAL-DOUBLE JEOPARDY-INCREASE IN MANDATORY RESTITUTION FINE ON RESENTENCING
Hanson was convicted of first degree murder and other crimes. In addition to a sentence of life in prison without the possibility of parole the court also imposed a restitution fine of $1,000 pursuant to a former Government Code section. On appellate review the Court of Appeal affirmed in part; modified the special circumstance murder conviction to second degree murder; reversed and dismissed with prejudice the special circumstance finding; and reversed defendant's sentence as to all counts. It remanded the matter to the trial court solely for resentencing. On remand, a different court sentenced defendant to 25 years to life in prison on the conspiracy to murder count and stayed various lesser terms of imprisonment on the other counts pursuant to section 654. The court also increased the restitution fine to $10,000. The Court of Appeal affirmed.
HELD: Statutorily mandated restitution fines constitute punishment. There is no principled basis for excluding them from California's constitutional prohibition against double jeopardy, which precludes the imposition of more severe punishment on resentencing. Reversed the judgment of the Court of Appeal, which upheld a $9,000 increase in defendant's restitution fine on resentencing.
Galanty v. Paul Revere Life Insurance Company
Case No. S073678
Supreme Court of California
INSURANCE-INCONTESTABILITY CLAUSE-FRAUDULENT CONCEALMENT OF ILLNESS IN POLICY APPLICATION
In June 1987, Galanty had his blood tested for antibodies to HIV. The result was positive. The lay counselor who reported the result to Galanty told him it could be erroneous, needed to be confirmed, and did not necessarily mean he was infected with HIV or would ever get AIDS. Galanty did not take another test at that time. He was later treated for flu by his general practitioner. When solicited by Paul Revere for insurance coverage he filled out the application he answered "no" to the questions of whether he had indications of a broad range of disorders in the past 5 years. He also indicated his treatment for flu. The application did not ask whether Galanty had tested positive for HIV. Paul Revere requested and received Galanty's medical records from his general practitioner. The records for Galanty's visit in May 1988 contain the notations "viral syndrome" and "in UCLA double blind study." Paul Revere did not at that time ask Galanty to submit to any tests or examinations or to authorize UCLA to release its research records and issued a disability insurance policy to Galanty in March 1989. In 1994, Galanty presented a claim to Paul Revere for benefits for total disability due to AIDS and distal symmetric peripheral neuropathy, a neurological condition sometimes associated with AIDS that causes numbness and pain in the extremities. His general practitioner certified the diagnosis of AIDS and DSPN and that Galanty, a court reporter, was no longer able to practice his profession. Paul Revere started paying policy benefits and also began an investigation of the claim. Galanty then retained an attorney, who disclosed to Paul Revere that Galanty had first tested positive for HIV in 1987. The policy contained the statutory required incontestability clause. The insurer thereupon formally denied coverage. Galanty sued. Summary judgment was for Paul Revere.
HELD: The Paul Revere policy excluded coverage for "Pre-Existing Conditions." It further stated that "We will not pay benefits for a Pre-Existing Condition if it was not disclosed on your application." The incontestability provision provided that, "After Your Policy has been in force for 2 years, excluding any time You are Disabled, We cannot contest the statements in the application. No claim for loss incurred or Disability that starts after 2 years from the Date of Issue will be reduced or denied because a sickness or physical condition not excluded by name or specific description before the date of loss had existed before the Date of Issue." The incontestability clause the Legislature has mandated for disability policies takes precedence over other language in the policy. An incontestability clause does not condone fraud but merely establishes a time limit within which it must be raised. Reversed and remanded.
City of Long Beach v. Farmer's and Merchant's Bank
Case No. B130936
California Court of Appeal, Second District, Division Five
CIVIL-PROCEDURE-REQUIREMENT FOR WRITTEN OBJECTIONS TO EVIDENCE IN SUMMARY JUDGMENT-EFFECT OT FAILURE TO SECURE RULING ON EVIDENTIARY OBJECTIONS
The City of Long Beach filed an action to foreclose its special assessment for seismic improvements. The City moved for summary judgment. The Bank argued the assessment was not legally made and opposed on the grounds: (1) the city's motion was not supported by admissible evidence; (2) questions of fact exist as to the validity of the assessment district and its liens; and (3) matters of which the trial court was required to take judicial notice raise questions of fact as to whether the city complied with all applicable laws in creating the district and liens. The trial court granted summary judgment to the City.
HELD: In this case the Bank prepared specific written objections to the City's evidence. The written objections contained places for the court to indicate whether an objection was sustained or denied. Although requested to dos so several times. the trial court never ruled on the written evidentiary objections. The Code of Civil Procedure requires that objections to evidence in support of a motion for summary judgment be made in writing, or a reporter be present at the hearing of the motion. Typically, when a trial judge fails to rule on summary judgment or adjudication motion evidentiary objections, the California Supreme Court has held that the objections are deemed waived on appeal. In this case the defense counsel twice orally requested that the trial court rule on the written evidentiary objections. The trial court neglected to rule on the written evidentiary objections. Trial courts have a duty to rule on evidentiary objections. Under the circumstances the written evidentiary objections have been preserved for appellate review. Although the objections were considered on appellate review, the judgment was affirmed.
Collins Development Company v. D.J. Plastering
Case No. D028673
California Court of Appeal, Fourth District, Division One
CIVIL-ALLOCATION OF CONSTRUCTION PROJECT DAMAGES-SETTLEMENT OF CLAIM AS PRESUMPTIVE EVIDENCE OF LIABILITY-ALLOCATION OF SETTLEMENT DAMAGES WHEN MULTIPLE CLAIMS
Collins Development Company was the developer of a large tract of condominium duplexes. Collins was sued by University Canyon West Homeowners Association for a number of defects, including defective stucco on the exterior of the units. Collins filed cross-complaints for contractual and equitable indemnity against 28 subcontractors. It settled all claims with Homeowners for $5 million, except with DJ, the stucco subcontractor. The Homeowners and Collins made an agreement that provided for a minimum payment to Homeowners, subject to a sharing agreement of any recovery over $600,000, which was all subject to Collins' right to assign UCW its indemnity rights against DJ in lieu of the payment. Judgment was for UCW, finding that it had suffered $3.5 million in damages; the jury assigned 95 percent of fault to Collins and 5 percent to UCW. Collins was awarded $3.5 million in damages against DJ and assigned the judgment to UCW. There was no jury determination of how much of the settlement with the Homeowners and Collins was for the stucco repair.
HELD: When the indemnitee settles without trial, the indemnitee must show the liability is covered by the contract, that liability existed, and the extent thereof. The settlement is presumptive evidence of liability of the indemnitee and of the amount of the liability, but it may be overcome by proof from the indemnitor that the settlement was unreasonable in amount, entered collusively or in bad faith, or entered by an indemnitee not reasonable in the belief that he or she had an interest to protect. In the absence of its consent, the procedure adopted by the trial court was not the proper means of allocating the settlement payments between stucco and non stucco claims. DJ had the right to have the allocation issue decided by the jury and the right to present evidence bearing on the question of what proportion of the settlement should be allocated to it acts and what proportion should be allocated to the acts of other subcontractors. Reversed.
United States v. Aguirre
Case No. 99-50135
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-LIMITATION ON COURT'S AUTHORITY TO RESENTENCE
Aguirre was sentenced to 57 months imprisonment for her participation in brokering a drug deal. The trial court originally granted an increased the downward departure for extraordinary family circumstances to four levels. Two days later, sua sponte, the court resentenced her, adding a two level downward departure in the sentence because of the absence of a local woman's prison.
HELD: While district courts generally have inherent authority to decide motions for reconsideration and rehearing of orders in criminal proceedings their resentencing authority is expressly limited by statute. A sentence is imposed at the time it is orally pronounced. When the district court reopened the sentence two days later, any alterations to the sentence could be made only if there was an arithmetical, technical, or other clear error. The initial sentence did not contain any error. The district court was aware at the time of sentencing of the possibility that southern California lacked a woman's prison facility. The resentence was vacated and the original sentence ordered imposed.
United States v. Wright
Case No. 98-50489
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FACTS SUFFICIENT TO ORDER DRAWING OF BLOOD FOR EVIDENCE-FAILURE TO RAISE ISSUE IN COURT BELOW-CARRYING A FIREARM DURING A CRIME OF VIOLENCE-SHOOTING ONESELF IN FOOT WHILE EXITING VEHICLE IS IN COURSE OF ROBBERY
Wright was involved in a bank robbery. At the start of the robbery he accidentally shot himself in the foot. He proceeded with the robbery and left blood all over the bank. Investigators obtained a court order to draw a sample of Wright's blood for comparison with the blood left by the injured robber at the bank. DNA showed a great likelihood that it was Wright's blood. His motion to suppress was denied and he was convicted of conspiracy to commit armed bank robbery armed bank robbery, and using or carrying a firearm during a crime of violence. He was sentenced to 214 months.
HELD: Taken as a whole, the facts presented to the magistrate judge corroborated the tip and established the required fair probability that Wright's blood specimen would yield evidence of the robber's identity. Wright's argument of his allegedly illegal arrest was not made in a pre-trial suppression motion to the district court and was not reviewed on appeal. The evidence was sufficient to convict. The crime of using or carrying a firearm during a crime of violence requires proof of an underlying predicate offense. Armed bank robbery qualifies as a crime of violence. While it is true that the robbers had yet to enter the bank when Wright was shot in the foot, they were seconds from doing so. At least one robber was brandishing a weapon at bystanders in order to keep them from entering the bank. The district court did not clearly err in concluding that the robbery had already commenced when the gun was discharged. Affirmed.
Bibiesca v. Galaza
Case No. 99-55957
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SIXTH AMENDMENT RIGHT TO REPRESENT ONESELF
Bribiesca appeared in court for pre-trial proceedings in his first-degree murder case. Defense counsel informed the court that Bribiesca wished to exercise his Sixth Amendment right to represent himself. The court refused to allow him to do so. Bribiesca was convicted. After exhausting his state court remedies, Bribiesca 's application a writ of habeas corpus in federal district court was granted, on the ground that Bribiesca was denied his Sixth Amendment right to self-representation.
HELD: Under the Anti-Terrorism and Effective Death Penalty Act of 1996, a habeas petition will not be granted with respect to any claim adjudicated on the merits in a state court unless the adjudication "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A criminal defendant has a Sixth Amendment right to represent himself. This right exists despite the fact that, in most cases, a defendant would be better served if represented by counsel. An incarcerated criminal defendant who chooses to represent himself also has a constitutional right to access to law books or other tools to assist him in preparing a defense. Affirmed.
In Re Mego Financial Corporation/Dunleavy v. Nadler, Et al.
Case No. 99-15361
U.S. Court of Appeals for the Ninth Circuit
ORDER
Minor amendment to opinion filed on May 22, 2000, not effecting the judgment.
Wasserman's Archived Appellate Summaries
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