Wasserman's Appellate Summaries
June 20, 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.
Bautista v. Los Angeles County
Case No. 97-56074
U.S. Court of Appeals for the Ninth Circuit
CIVIL-PROCEDURE-DISMISSAL OF SECONDED AMENDED COMPLAINT FOR FAILURE TO STATE CAUSE OF ACTION-ABUSE OF DISCRETION
The restaurant operations of the L.A. Music Center was transferred to R.A. Music, Inc. and the plaintiffs were not employed by R.A. Plaintiffs are 51 individuals filing claims of employment discrimination against the County of Los Angeles and R.A. Music, Inc. the district court sustained demurrers to the complaint.
HELD: While the complaint contains stray allegations of discriminatory policies or practices imposed by R.A. Music, what it seeks is individual relief for each of the plaintiffs. Each plaintiff's right to relief therefore depends upon proof of the operative facts giving rise to an enforceable right in favor of that plaintiff. The three claims in the complaint do not meet that test; they are hybrids that qualify neither as class action allegations nor as statements of individual claims. To comply with Rule 8 each plaintiff must plead a short and plain statement of the elements of his or her claim, identifying the transaction or occurrence giving rise to the claim and the elements of the prima facie case: that he or she is a member of a particular protected class; was qualified and applied for the position he or she sought; and was rejected on a prohibited ground. Each plaintiff's claim being founded upon a separate transaction or occurrence, it is properly "stated in a separate count since a separation facilitates the clear presentation of the matters set forth. Dismissal of the complaint for failure to comply with the rules was therefore within the court's discretion. In this case, the record shows no indication of undue delay, docket congestion or risk of prejudice to defendant militating in favor of dismissal or outweighing the policy favoring disposition of cases on their merits. There was no consideration of less drastic alternatives. When it granted plaintiffs leave to file a second amended complaint, the court issued a bare-bones order with only a cursory direction. The deficiencies of the complaint were readily curable with some guidance from the court. The court's sudden-death response was, therefore, an abuse of discretion. Reversed and remanded.
Botosan v. McNally Realty
Case No. 99-55580
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-AMERICANS WITH DISABILITIES ACT-EQUAL ACCESS TO BUSINESS OFFICE-RESPONSIBILITY OF LANDLORD AND TENANT-DAMAGES UNDER CALIFORNIA UNRUH CIVIL RIGHTS ACT
Botosan is a paraplegic who requires the use of a wheelchair at all times. In December 1997, he visited Realty World, a real estate office, and discovered that the office did not provide handicapped parking. Due to the lack of a designated parking space for disabled persons, he was prevented from entering the office and becoming a customer. He filed a complaint alleging violations of the public accommodations provisions of the Americans With Disabilities Act, California's Health and Safety Code, and other statutes. The district court granted Botosan's motion for summary judgment and awarded him $1,000 in damages.
HELD: Botosan was not required to give notice to any state or local agency before filing his ADA action. The express terms of the ADA hold a landlord and tenant liable for noncompliance, but allocation of responsibility for complying with the obligations of the ADA may be determined by lease or other contract. The landlord's responsibility may not be eliminated by contract. The district court correctly held that Botosan could recover damages under California's Unruh Civil Rights Act without proving that it was impossible for him to enter Realty World. Affirmed.
Escobar Grijalva v. Immigration and Naturalization Service
Case No. 98-71469
U.S. Court of Appeals for the Ninth Circuit
ORDER-IMMIGRATION-INEFFECTIVE ASSISTANCE OF COUNSEL
Amendment to opinion filed on March 24, 2000, not effecting the judgment.
Schaeffer v. Townsend
Case No. 98-55718
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-CALIFORNIA RESIDENCY REQUIREMENT TO RUN FOR UNITED STATES HOUSE OF REPRESENTATIVES
Schaeffer, a Nevada resident, sought to file as a candidate in the special congressional election of April 7, 1998, to fill the vacancy for the 44th Congressional District of California. The seat was previously held by the late Congressman Sonny Bono who died while in office. The Registrar of Voters for Riverside County refused to give Schaeffer the required nomination papers because he was not registered to vote in California as required by California Elections Code. Schaeffer sued. Judgment was for the state of California. The election was held without Schemer's participation.
HELD: Generally a case is rendered moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. An exception is recognized when the basis of the claim is capable of repetition. The U.S. Constitution sets forth the requirement for election to the House of Representatives as being the age of 25, been 7 years a citizen of the U.S. and who shall when elected, be an Inhabitant of that State in which he shall be chosen. The Framers of the Constitution discussed and explicitly rejected any requirement of in-state residency before the election. The California residency requirement for election to nationwide office is unconstitutional reversed.
Navas v. Immigration and Naturalization Service
Case No. 98-70363
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-EVIDENCE DEMONSTRATING PERSECUTION FOR POLITICAL OPINION
Navas fled El Salvador at age 17 after members of the Salvadoran military murdered his aunt and uncle, shot at him, threatened him with death, and assaulted his mother. Navas submitted extensive materials documenting the prevalence of human rights violations in El Salvador by both the government and its opponents. These documents substantially corroborate Navas' account. The BIA denied both asylum and withholding of deportation, on the ground that Navas did not demonstrate that a reasonable person in his circumstances would fear persecution on account of one of the five enumerated grounds for asylum.
HELD: To be eligible for a grant of asylum, the applicant must simply demonstrate a well-founded fear of persecution. He need not prove, however, that it is more likely than not that his fear will be realized. In order to establish eligibility for asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily protected grounds; and, (3) is committed by the government or forces the government is either unable or unwilling to control. To show persecution for political opinion the applicant must show that he held (or that his persecutors believed that he held) a political opinion that his persecutors persecuted him (or that he faces the prospect of such persecution) because of his political opinion. It has been consistently held that death threats alone can constitute persecution. Petition for review granted and amended.
Young v. City of Simi Valley
Case No. 97-56484
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-ZONING ORDINANCE FOR ADULT ENTERTAINMENT-SENSITIVE VETO PROVISION OF ORDINANCE
Young bought a property, received a zoning clearance from the City, and applied for and received a business tax certificate. A few weeks later the City rescinded Young's zoning clearance and requested additional information. In the interim period the City passed an emergency ordinance which placed a moratorium on adult entertainment in the City. It later passed a permanent ordinance restricting where adult entertainment could be located. Young had to abandon the site he selected, but found an alternate location acceptable to the City on a preliminary inspection. Thereafter the City delayed his application for a permit by seeking additional information. A religious institution applied for and was granted a permit for bible studies within the prohibited 500 foot zone. Young's permit was then denied. Young sued. The district court declared the adult business zoning ordinance unconstitutional and granting an injunction barring its enforcement.
HELD: The right to open and operate an adult theater featuring topless, exotic or nude dancing is protected by the First Amendment. The challenged permitting scheme for adult businesses in Simi Valley is facially invalid under the First Amendment. The ability of private parties to obtain an over-the-counter zoning permit that effectively blocks an adult use, at any time during the lengthy permitting process for adult businesses, deprives a potential adult business owner of the required reasonable alternative avenues of communication. Affirmed, with directions to modify the injunction to effect only the sensitive use veto provision of the ordinance.
Northland Insurance v. Briones
Case No. E024437
California Court of Appeal, Fourth District, Division Two
INSURANCE-DUTY TO DEFEND-COVERAGE FOR ALLEGED RAPE AND PHYSICAL ABUSE
Briones was a karate instructor for a 15 year old deaf girl enrolled at the California Institute of the Deaf. The girl filed an action accusing Briones of repeatedly raping and stalking her. Briones tender of coverage to his mobile home insurer, Northland, was rejected. The policy provided personal liability coverage in the event suit was filed against the insured for damages because of bodily injury or property damage. However, the policy specifically applied only to accidents, occurrences, and loss during the policy period shown on Page One while YOUR mobile home and unattached structures are within the United States and the insurance does not apply to any bodily injury, property damage, personal injury, or medical expense arising out of: 1. Physical abuse, sexual abuse, sexual molestation or sexual harassment by anyone. Briones sued. Summary judgment was for Northland.
HELD: Briones asserts that since there is a possibility that there may be inconsistent factual determinations in this case against Northland and the rape suit against him, which creates a duty to defend. The Court went through the exercise of comparing the allegations of the complaint to the terms of the policy. In some situations a stay of the declaratory relief action is appropriate until the facts are determined in the underlying action. The Court was unable to discern any potential issue in the underlying action that would give rise to a duty to defend. It is a familiar principle that a liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity. There is simply no such thing as "unintentional child molestation," "negligent harassment," "negligent stalking" or "accidental intercourse." The request to stay summary judgment was properly denied and judgment entered for Northland.
Sacramento Children's Home v. Department of Social Services
Case No. C030858
California Court of Appeal, Third District
GOVERNMENT-METHOD OF COMPUTATION OF PAYMENT OF SERVICE PROVIDER TO THE DEPARTMENT OF SOCIAL SERVICES
The Department of Social Services sought a refund of overpayments made to the Sacramento Children's Home. After an adverse administrative adjudication, SCH petitioned for a writ of mandate. The superior court denied the writ.
HELD: The case involved the application of estimated levels of services versus actual levels maintained by the service provider. In no sense is the plaintiff paying back money it "never received." The defendant compensated the plaintiff per actual client for a particular staffing level. Upon discovering the plaintiff did not maintain this staffing level, the defendant sought reimbursement of the excess per actual client. The Rate Classification Levels presumes there is sufficient staffing to provide sufficient services at that level for 90 percent of a vendor's capacity. The audit determines whether this in fact was the case. The actual number of clients is irrelevant to this determination of staffing levels and concomitant compensation levels. There was no abuse of discretion on the part of DSS in segregating the 1991-92 fiscal year into two RCL components. Nor is there an abuse of discretion in measuring audit periods of fewer than 12 months. Affirmed.
Bartold/Cohen v. Glendale Federal Bank
Case No. G020529
California Court of Appeal, Fourth District, Division Three
REAL PROPERTY-DUTY TO EXECUTE RECONVEYANCE WHEN SECURED OBLIGATION PAID
Bartold, Cohen and Krasne executed deeds of trust identifying Glendale as the lender/beneficiary and Verdugo as the trustee when they borrowed money to purchase or refinance their homes. Hopenstand's loan was from another lender, but Glendale later became his loan servicer. All four plaintiffs refinanced their homes and paid off their loans to Glendale; all but Hopenstand paid Glendale a reconveyance fee. In each case, Verdugo failed to record a reconveyance of the trust deed and the title company handling the refinance transaction was required to record a release of the obligation to clear title. The parties sued for the $300 fee and punitive damages. The parties sought discovery, which the trial court denied because there had been no class certification. When the parties moved for class certification the motion was denied.
HELD: When the beneficiary receives full repayment of an obligation secured by a trust deed effecting real property it is obligated to execute a request for reconveyance and deliver it to the trustee, who is then obligated to record a full reconveyance within 21 days (unless it receives contrary instructions from the trustor or his escrow), thereby delivering clear title back to the property owner. The Civil Code sets out these requirements and provides that if the trustee has not recorded the reconveyance within 75 days of repayment, a title insurance company may prepare and record a release of the obligation, demonstrating satisfaction of the loan. The statute imposes a $300 penalty on one who fails to fulfill the statutory requirements. The trial court erred in refusing to certify the class, should have allowed discovery on class issues, and erroneously granted summary judgment against Cohen and Hopenstand.
Wilson v. Crane, Inc.
Case No. A087001
California Court of Appeal, First District, Division Four
(Certified for partial publication, excepting parts I., II., III., and IV.)
TORTS-APPLICABILITY OF PROPORTIONAL SHARE OF DAMAGES FOR SHARE OF FAULT TO STRICT LIABILITY CLAIMS-CREDIT FOR ECONOMIC DAMAGES-LOSS OF CONSORTIUM AS NON ECONOMIC DAMAGES
Daniel Wilson's work involved the daily and continuous replacing gaskets in pipes and fittings. The parties stipulated at trial that Daniel Wilson was suffering from mesothelioma caused by industrial exposure to asbestos. Wilson settled with some of the defendants before trial. Judgment was for Wilson and that 2.5 percent of the total causes contributing to Wilson's harm was attributable to Crane. The net award was adjusted to reflect a credit for Wilson's settlements with other defendants.
HELD: The statute fixing liability for non economic damages according to a defendant's proportional share of responsibility is applicable to claims for strict liability. There was no credit for settlement sums properly allocated to Lois Wilson's claim for loss of consortium since she recovered only non-economic damages on that claim and defendant was entitled to credit only insofar as economic damages were compensated by settlement. Affirmed.
People v. Carr
Case No. G024951
California Court of Appeal, Fourth District, Division Three
CRIMINAL-AUTHORITY FOR CROSS BURNING ON ANOTHER'S PROPERTY-INTOXICATION DEFENSE UNAVAILABLE IN GENERAL INTENT CRIME
Carr was convicted for burning a cross on another person's property without authorization. At trial Carr requested CALJIC No. 1.23, which sets forth the legal elements for consent. Noting that lack of authorization is an element of section 11411(c), Carr's attorney stated, "I think authority is akin to consent." The prosecutor disagreed, claiming the two concepts are not the same. The prosecutor also pointed out the term consent does not appear in section 11411(c). In the end, the court declined to give CALJIC No. 1.23 and instead instructed that the cross burning simply had to be conducted "without authorization."
HELD: Another person, Jarod was not legally entitled to authorize the cross burning on his parent's property. Accordingly, the court did not err in refusing Carr's consent instruction, and the prosecutor did not misstate the law in closing argument by asserting Jarod lacked authority to permit the cross burning. The court properly excluded Carr's proffered expert testimony on the physiological and mental effects of drinking, since the crime charged was a general intent crime. Affirmed.
Wasserman's Archived Appellate Summaries
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