Wasserman's Appellate Summaries
June 22, 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.
Moore v. Apfel
Case No. 98-56318
U.S. Court of Appeals for the Ninth Circuit
OTHER-SOCIAL SECURITY DISABILITY BENEFITS-INTERNAL POLICY RULES NOT BINDING ON COMMISSIONER 0F SOCIAL SECURITY-SUBSTANTIAL EVIDENCE
Moore applied for disability insurance benefits and supplemental security income benefits in February 1991. Moore alleged that he had been disabled since February 19, 1988, due to an injury to his right knee and leg. He also complained of limitations in his arms and of psychiatric and emotional impairments. The matter was bounced back on forth on both judicial and administrative remands. In 1995, the fact that Moore had turned 50 was found not to effect the employment possibilities of Moore and the same Administrative Law Judge that had presided at the past hearings denied his claim. The district court granted summary judgment to Apfel, Commissioner of the Social Security Commission.
HELD: The Social Security regulations ("HALLEX") state that on a remand from district court the case must be flagged and immediately assigned to the same ALJ who issued the decision or dismissal unless: the case was previously assigned to that ALJ on a prior remand from the Appeals Council and the ALJ's decision or dismissal after remand is the subject of the new Appeals Council remand. In order for HALLEX to have the force and effect of law, it must prescribe substantive rules - not interpretive rules, general statements of policy or rules of agency organization, procedure or practice. It is clear that HALLEX does not provide substantive rules and is not binding on the Commissioner. The decision of the Commissioner was supported by substantial evidence and in accordance with the correct legal standards. Affirmed.
AT&T Corporation v. Western Enterprise America
Case No. 99-35609
U.S. Court of Appeals for the Ninth Circuit
OTHER-REGULATION BY CITY OF CABLE FRANCHISE-CONDITION OF MERGER TO GRANT COMPETITIVE ACCESS TO CABLE BROADBAND SERVICES-COMMUNICATIONS ACT
AT&T and TCI sought to merge their cable operations. The City of Portland conditioned the merger on the continued provision of non-discriminatory access to the Franchisees' cable modem platform for providers of Internet and on-line services, whether or not such providers are affiliated with the Transferee or the Franchisees, unless otherwise required by applicable law. ITT refused this condition and sued. Summary judgment was granted for Portland.
HELD: The Communications Act provides that a cable operator may not provide cable service without a franchise. The Act defines cable service" as (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Because the Internet services AT&T provides through @Home cable modem access are not "cable services" under the Communications Act, Portland may not directly regulate them through its franchising authority. Although Portland may not directly regulate cable operations through its franchising authority, it may condition AT&T's provision of standard cable service upon its opening access to the cable broadband network for competing Internet Service Providers. Since cable broadband facilities is a telecommunications service under the Communications Act Portland may not condition the transfer of the cable franchise on non-discriminatory access to AT&T's cable broadband network. Reversed.
Kransco/International Insurance v. American Empire Surplus Lines Insurance
Case No. S062139
Supreme Court of California
INSURANCE-COMPARATIVE FAULT IN BAD FAITH ACTION BY INSURED
In 1987 thirty five year-old Michael Hubert jumped headfirst onto his Wisconsin neighbor's backyard water slide toy known as a Slip 'N Slide and broke his neck, rendering him a partial quadriplegic. Hubert brought a personal injury action in Wisconsin against Kransco, the California corporation that manufactured the Slip 'N Slide toy. Kransco tendered defense of the action to its Ohio-based primary liability carrier, American Empire Surplus Lines Insurance Company. Kransco also had three layers of excess insurance above its AES primary insurance coverage: International Insurance Company provided $2 million in excess of the $1 million primary coverage, Agricultural Excess and Surplus Insurance Company provided the next layer of $1 million in excess of the $3 million, and Transco Syndicate No. 1 Ltd. provided the last layer of excess insurance; $1 million in excess of the $4 million. During discovery Kransco first denied knowledge of prior Slip 'N Slide accidents that had resulted in cervical injuries to adults. Kransco later amended its response to admit knowledge of two such accidents. One accident had resulted in the user's death, the other had left the user a quadriplegic and resulted in a $1.5 million settlement against the corporation from which Kransco had purchased the rights to manufacture the Slip 'N Slide. Kransco's amended response itself contained inaccurate information about the date of one of these accidents. During trial AES rejected Hubert's $750,000 settlement offer and, given Kransco's willingness to contribute $100,000, and excess insurer International's willingness to contribute another $100,000, made a counteroffer of $450,000, which Hubert rejected. The jury ultimately returned verdicts awarding Hubert roughly $2.3 million in compensatory damages and $10 million in punitive damages. Kransco then settled with Hubert. Kransco and its insurers paid Hubert $7.5 million. Of this amount, AES contributed its policy limits of $900,000 while objecting to the settlement as unreasonable. Under the terms of the settlement Kransco agreed to prosecute a bad faith action against AES and to split equally with Hubert any net proceeds from the litigation. Kransco then sued AES. The trial court instructed the jury on comparative fault, based on Kransco's false responses to discovery. The jury verdict assessed compensatory damages at over $13.6 million, apportioning fault for these damages at 90 percent to Kransco and 10 percent to AES. On a motion
notwithstanding the judgment the trial court found that there as no evidence of comparative fault and awarded Kransco the full amount of damages. The Court of Appeal affirmed.
HELD: The duty of good faith and fair dealing in an insurance policy is a two-way street, running from the insured to his insurer as well as vice versa. In the context of comprehensive general liability coverage, however, the insured is purchasing insurance in exchange for the payment of premiums precisely to avoid financial liability for its own negligent or fault-based conduct causing injury to others, comparative fault principles are not applicable. Affirmed.
People v. Walsh
Case No. A085779
California Court of Appeal, First District, Division Four
CRIMINAL-COUNTY JURISDICTION OVER OFFENSE-EXCEPTION WHEN OFFENSE WITHIN 500 YARDS OF COUNTY BORDERS
The San Mateo County District Attorney filed an information charging defendant Walsh with one count of felony possession of methamphetamine and a medley of other charges. Walsh's motion to dismiss was granted, on the grounds that offenses were committed within San Francisco, the San Mateo Superior Court lacked territorial jurisdiction.
HELD: By statute, except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed. One exception to this rule is that when a public offense is committed on the boundary of two or more jurisdictional territories, or within 500 yards thereof, the jurisdiction of such offense is in any competent court within either jurisdictional territory. Since the alleged offenses were committed within 500 yards of the San Mateo County line, San Mateo County had territorial jurisdiction over the case. Reversed.
People v. Wakefield
Case No. D032530
California Court of Appeal, Fourth District, Division One
CRIMINAL-SEXUALLY VIOLENT PREDATOR ACT-NECESSITY FOR CUSTODY OF SVP-NECESSITY FOR CURRENTLY DIAGNOSED MENTAL DISORDER
In 1981 Wakefield pleaded guilty to committing a lewd act with a child (§ 288a) and served a prison term. In 1990 Wakefield pleaded guilty to rape and was sentenced to prison. He was paroled on December 20, 1993, and after having his parole twice revoked, he was again paroled in July 1995. In December 1995 Wakefield's parole was revoked for a November 1995 arrest for vandalism, false identification to a police officer and resisting arrest. Wakefield waived a revocation hearing in exchange for a nine-month revocation term. In October 1996, a revocation hearing was held based upon Wakefield's possession of letters from his stepdaughters and suggestive photographs of his wife in violation of the special terms of his parole as well as based upon his November 1995 domestic violence arrest/battery conviction. A true finding was made on all charges and a nine-month revocation term was imposed. The former nine month probation term was rescinded and a three year term imposed. The San Diego County District Attorney filed Sexually Violent Predator petitions. Wakefield was found to be a SVP and committed.
HELD: The SVP Act provides that if the Director of Corrections determines that an individual who is in custody under the jurisdiction of the Department of Corrections may be a sexually violent predator the person may be referred for evaluation in accordance with the SVP Act. Lawful custody has never been a jurisdictional prerequisite to filing an SVP petition. A later judicial or administrative proceeding determination the custody was unlawful does not deprive the court of the power to proceed on an SVP petition if the custody status when the petition was filed was a result of a good faith mistake of law or fact. Both the petitions, filed in March and October 1997, were properly filed while Wakefield was in good faith custody of the Department of Corrections. The SVP Act provides an individual may not be found to be a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. Wakefield did not raise this issue below. He did not raise any challenges to the sufficiency of the evidence to support a finding he was a sexually violent predator. He submitted the case based on the transcript of the probable cause hearing transcript and documentary evidence. Both of the psychologists who had evaluated Wakefield testified at the probable cause hearing their diagnoses were current, unchanged from their earlier evaluations. Affirmed.
Hunt v. Superior Court/Commercial Money Center
Case No. D034797
California Court of Appeal, Fourth District, Division One
CIVIL-JURISDICTION-INTERSTATE CONTRACT-MINIMUM CONTACTS WITH STATE OF CALIFORNIA-UNENFORCEABLE FORUM SELECTION CLAUSE
Commercial Money Center is located in Escondido, California. It financed a lease of property to Jamtter, which was guaranteed by the Hunts, all who reside in Maryland. The agreement was signed in Maryland and the equipment was supposed to be delivered in Maryland. Jamtter claimed he never received the equipment and refused to pay. The guaranty by the Hunts states that the Hunts "FREELY CONSENT TO PERSONAL JURISDICTION OF THE APPLICABLE JURISDICTION AND WAIVE TRIAL BY JURY. CMC sued the Hunts on the lease in San Diego County Superior Court. The Hunts' petition to quash service was denied.
HELD: The only contact with California was the Maryland vendor using a California company to process, approve and supply the financing for the purchase. The courts have repeatedly refused to find minimum contacts under substantively indistinguishable circumstances. When an out-of-state resident's only contact with California is a single purchase from a California vendor of goods for delivery out of state, there are insufficient minimum contacts to establish personal jurisdiction even though the California vendor supplies financing to the buyer. Courts will enforce forum selection clauses contained in a contract freely and voluntarily negotiated at arms length unless enforcement would be unfair or unreasonable. When the clause does not give adequate notice to the defendant that he is agreeing to the jurisdiction cited in the contract, "the requisite mutual consent to that contractual term is lacking and no valid contract with respect to such clause thus exists. Standing alone, the forum clause does not identify California as the applicable jurisdiction. Mandate issued to vacate the order denying the motion to quash jurisdiction and enter a new order granting the motion.
Burdette v. Burdette II
Case No. B120032
California Court of Appeal, Second District, Division Three
PROBATE-WILL CONTEST-PROOF OF WILL-ADMISSION OF WRITTEN STATEMENT OF UNAVAILABLE WITNESS
Decedent left two wills, one executed in 1992 and one in 1993. The 1993 will divides decedent's estate equally among his three children, one of whom is the petitioner. The 1992 will, on the other hand, provided less to decedent's children and made bequests to decedent's nephew, niece and grand-niece. No such bequests are included in the 1993 will. The admission to probate of the 1993 will was opposed. One of the subscribing witnesses to the 1993 will testified that the decedent first spoke with him about his will in 1993. The decedent expressed unhappiness with his earlier will (i.e., the 1992 will), which he said had been made while he was in an emotional state, and stated his desire to make a new will. The testimony of the second subscribing witness was admitted in the form of a sworn written transcript of testimony given in Florida where the witness resides. He had declined to come to California to testify in person and his attendance could not be compelled by subpoena.
HELD: If only one subscribing witness is available in a will contest then his or her evidence alone may be sufficient to prove due execution and the unavailable witness is really not necessary and, in any event, the written statement of an unavailable witness, as authorized by statute, may be utilized. The petitioner presented sufficient evidence of due execution and that the trial court did not err in admitting the statement of one of the subscribing witnesses, which was in the form of a transcript of sworn testimony given in Florida where such witness resided. Affirmed the admission of the 1993 will to probate.
People v. Gaio, Jr.
Case No. B125769
California Court of Appeal, Second District, Division Two
CRIMINAL-BRIBERY-INTENT TO INFLUENCE SPECIFIC OFFICIAL ACT NOT REQUIRED-INSTRUCTIONS-SENTENCING-CONSECUTIVE SENTENCES FOR EACH ACT OF BRIBERY
Gaio, Jr., and Hodgin were convicted of three counts each of receiving a bribe and giving a bribe of value in excess of $400. Gaio received a five-year sentence, and Hodgin was sentenced to a term of three years and four months. They were also were assessed restitution fines of $1,000 for Gaio and $600 for Hodgin, and direct victim restitution ordered.
HELD: It is a crime to give or offer a bribe to any state, city, or county ministerial officer or employee. A "bribe" is defined as "anything of value asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity. The evidence showed that Hodgin, a salesman had paid Gaio, an executive in the L.A. jail food service division, and Gaio had received from Hodgin, three bribes. The bribes were to influence Gaio in selecting companies he represented to purchase products from. It was not necessary that the bribe was given with the intent to influence a specific official act. The court was not required to give an instruction that the jury had to agree unanimously as to the particular act constituting the offense. When the trial court imposed consecutive sentences, it impliedly found that appellants had entertained multiple objectives with respect to the several counts and bribes, and substantial evidence supports that determination. Affirmed.
Finley v. Tird Laguna Hills Mutual
Case No. E024743
California Court of Appeal, Fourth District, Division Two
ORDER
Modification of opinion filed in this matter on May 23, 2000, not effecting the judgment.
Wasserman's Archived Appellate Summaries
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