Wasserman's Appellate Summaries
June 21, 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.
Craik v. County of Santa Cruz/Odenweller
Case No. H020690
California Court of Appeal, Sixth District
REAL PROPERTY-CONDITIONS FOR GRANTING A VARIANCE NOT LIMITED TO PHYSICAL CHARACTERISTICS OF PROPERTY-REQUIREMENT FOR FINDINGS IN SUPPORT OF GRANT OF VARIANCE
The general plan generally prohibits three-story homes in the area involved. The County of Santa Cruz granted Odenweller variances to exceed two stories, a 28-foot height limit, allowing 32 feet, reducing a 20-foot front-yard setback, to 16 feet (and 8 feet for a second story deck), to exceed a 50 percent floor-area ratio, allowing 53 percent house-to-lot coverage, to allow a second story deck and to exceed a 50 percent limit on front yard space to be used for parking. Craik, neighbor, sued.
HELD: Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. The Government Code requires variances to be granted "because of special circumstances applicable to the property. The Santa Cruz County Code adopts the same special circumstances concept. The special circumstances are not limited to physical characteristics of a property. The leading case in this area interprets the concept as emphasizing only undefined disparities between properties. The Residential Site and Development Standards ordinance can be construed as explicitly stating that the standards governing the maximum number of stories can be modified by a variance. The findings need not be stated with judicial formality. Findings must simply expose the mode of analysis, not expose every minutia. The analysis in support of granting the variances are clear. Affirmed.
Dimock v. Emerald Properties, Et al.
Case No. D032454
California Court of Appeal, Fourth District, Division One
REAL PROPERTY-SALE OF REAL PROPERTY AT TRUST DEED SALE BY TRUSTEE NOT OF RECORD IS VOID
Dimock owned a home in San Diego. The beneficiary of a trust deed against the property was Bankers Trust and the trustee was Commonwealth Trust Deed Services. Dimock went into default in payment and a Notice Of Default was recorded by Commonwealth. Bankers later caused a substitution of trustee, to be recorded, naming Calmco as the substitute trustee. Trust Deed prepared the substitution and recorded a second Notice Of Default. The second NOD was prepared in error, rust Deed having forgotten the previous NOD. When Trust Deed discovered the error it reinstated the first NOD file and abandoned the second Calmco file. TD, again acting on behalf of Commonwealth, conducted the trustee's sale and sold the property to defendant and respondent Emerald Properties. Dimock sued, alleging defects in notice of the sale. During discovery the substitution of trustee was discovered. Defendants motion for summary judgment was granted.
HELD: By statute the Legislature has permitted the beneficiary of a deed of trust to substitute, at anytime, a new trustee for the existing trustee. Under the governing statute the substitution is made by simply recording a document evidencing the substitution. By its terms the statute provides that after such a substitution has been recorded, the new trustee succeeds to all the powers, duties, authority, and title granted and delegated to the trustee named in the deed of trust. The recording of the substitution of trustee transferred to Calmco the exclusive power to conduct a trustee's sale. Commonwealth had no power to convey Dimock's property, since the non-judicial sale by TD was void. Reversed and remanded, with directions to enter judgment quieting title in favor of Dimock.
United States v. Mateo-Mendez
Case No. 99-50394
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EVIDENCE-CERTIFICATION OF CERTIFICATE OF NON EXISTENCE OF RECORD-SENTENCING-REDUCTION OF BASE LEVER FOR SENTENCING
Mateo was caught by the Border Patrol. He had an extensive criminal history, including prior convictions for rape and burglary, and had been previously deported. Mateo admitted at that time that he was an illegal alien and that he had entered without inspection the day before. At trial a "Certificate of Nonexistence of Record" was admitted in evidence to as proof that Mateo was in the U.S. without inspection. The absence of a record was certified by a management analyst in the Records Services Branch, Office of Records of the INS, and recited that she was authorized to certify the nonexistence in the records of the INS. Mateo was convicted of illegal reentry into the U.S.
HELD: Under the Federal Rules of Evidence, a document may not be excluded for lack of authentication if the document is under seal and the document must bear a signature purporting to be an attestation. The CNER clearly bears the signature of Karen A. Malveaux Joy, and, although the signature is not labeled an "attestation," it appears under a statement that the same person does "certify to the following." The CNER satisfies the Rules as a whole. The CNER was not required to be certified by any officer of the INS designated by the Attorney General to make such certification. Mateo was entitled to a three level reduction in sentence lever because of his cooperation. Affirmed conviction reversed sentence and remanded.
Frank v. United Airlines
Case Nos. 98-15638/98-16687
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-PRECLUSIVE EFFECT OF PRIOR SETTLEMENT OF CLASS ACTION
Plaintiffs are thirteen named flight attendants who were terminated for failing to comply with United Airline's maximum weight requirements. They alleged causes of action under the Civil Rights Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the California Fair Employment and Housing Act. Summary judgment was for United, based on a 1979 class action judgment.
HELD: The district court erred in giving claim preclusive effect to a former class judgment. First, the plaintiffs in this suit assert claims based on alleged Title VII violations arising after 1980. A claim arising after the date of an earlier judgment is not barred, even if it arises out of a continuing course of conduct that provided the basis for the earlier claim. Second, this suit is based on a different weight policy from that challenged in the 1979 action. Third, there are different standards for notice in the two actions. The notice in the former action was not sufficient under Rule 23 to preclude monetary claims in later suits. The class in the 1979 action was certified and given notice as a Rule 23(b)(2) "injunction" class action. The present suit, by contrast, is a Rule 23(b)(3) "damages" class action. Rule 23(c)(2) requires a higher standard of notice for a Rule 23(b)(3) class action, under which individual notice must be provided to all members who can be identified through reasonable effort. Fourth, the 1979 settlement is not incorporated into a judgment and therefore cannot have preclusive effect. Reversed in part, affirmed in part.
Wasserman's Archived Appellate Summaries
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