Wasserman's Appellate Summaries
June 26, 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.
Abkco Music, Inc. v. Laverne
Case No. 98-56145
U.S. Court of Appeals for the Ninth Circuit
COPYRIGHT-DISTRIBUTION OF A PHONERECORD BEFORE JANUARY 1, 1978 DOES NOT CONSTITUTE PUBLICATION
Johnson, a blues artist, recorded 29 songs before he was murdered in 1938. Vocalion Records released his Stop Breakin' Down in1938 and Love in Vain in1939. No copyright registration for either song was filed. In the early 1960s, Columbia Records re-released Johnson's recordings. In 1969, The Rolling Stones released an album called Let It Bleed, which contained an adapted version of Love in Vain, and in 1972, the Rolling Stones adapted Stop Breakin' Down for their album Exile on Main Street. ABKCO's predecessor filed a copyright registration on Love in Vain in May 1970 and ABKCO filed a copyright registration claiming protection for The Rolling Stones' adaptation and arrangement of Stop Breakin' Down in 1972. In 1995 ABCKO sought an order that the Johnson versions of Love in Vain and Stop Breakin' Down are in the public domain. Each party moved for summary judgment, but before the district court could rule, the copyright law was amended. The district court granted ABKCO's motion, holding Johnson versions of Love in Vain and Stop Breakin' Down irrevocably entered the public domain when the copyrights were not renewed within the last year of the initial 28-year term of copyright protection.
HELD: Under the 1909 Act, a properly registered artistic work receives copyright protection for 28 years from the date of first publication, renewable once for another 28 years. In 1997 Congress amended the Copyright Act to provide that distribution of a phonorecord before January 1, 1978 shall not constitute a publication of the musical work. A phonorecord distributed in the late 1930s "published" the underlying work such that the clock started ticking under the Copyright Act of 1909. In November 1997, the Copyright Act was amended to provide that the distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein. There is a good argument that the 1997 amendment simply clarifies what the meaning of the 1909 Act was all along. Reversed and remanded.
United States v. Maldonado
Case No. 97-50440
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-FACTUAL DETERMINATION FOR SETTING OF BASE LEVEL-ENHANCEMENT FOR MANAGEMENT ROLE
Maldonado pleaded guilty to conspiracy to manufacture and distribute methamphetamine. The district court rejected the government's recommendation of a base offense level of 32 and set the base offense level at 34 in accord with the facts that were honestly and correctly acknowledged in the written objections and at the hearing. The district court also rejected the PSR recommendation of a four-level supervisory role enhancement and the government's recommendation of no supervisory role enhancement. Instead, the district court increased Maldonado's sentence by a two-level enhancement to 36 because of his supervisory role. He was sentenced to 168 months in custody.
HELD: There was no unresolved objection, nor any controverted matter regarding the base offense level set forth in the PSR. All parties initially erred in calculating the marijuana equivalency of the drugs. However, at sentencing all parties agreed on the amount of drugs for which Maldonado was accountable, and the resulting base offense level of 34. The Guidelines provide for an increase in a defendant's base offense level by two levels if the defendant was an organizer, leader, manager, or supervisor in any criminal activity. A single incident of persons acting under a defendant's direction is sufficient evidence to support a two-level role enhancement. The district court did not clearly err in finding that there was sufficient evidence to enhance Maldonado's sentence for his leadership role in the offense. Maldonado usually did the negotiating and provided the drugs to the agents. Maldonado waived the breach of plea agreement issue by failing to raise it at the court below. Affirmed.
Avetova-Elisseva v. Immigration And Naturalization Service
Case No. 98-70547
U.S. Court of Appeals for the Ninth Circuit
ORDER-IMMIGRATION-ASYLUM
Amendment to the opinion as filed on May 15, 2000 by revising footnote 21, not effecting the judgment.
San Luis Coastal Unified School District v. City of Morro Bay
Case No. B130647
California Court of Appeal, Second District, Division ix
OTHER-RIGHT TO TRANSPORT PURCHASED WATER THROUGH THE CITY WATER SYSTEM
The San Luis Coastal Unified School District (hereafter "school district") operates 18 schools in San Luis Obispo County. Three schools are located within the city of Morro Bay. Currently the school district purchases water from Morro Bay for the three schools. In 1993, the school district entered into a water supply agreement with the County of San Luis Obispo Flood Control and Water Conservation District. The contract required the county to deliver the water to a station just outside Morro Bay. To bring the water to the schools it must be carried through facilities belonging to Morro Bay. The City refused the District's request to transport the water to the schools. The trial court denied the District's petition for mandate.
HELD: The statute provides that, notwithstanding any other provision of law, neither the state, nor any regional or local public agency may deny a bona fide transferor of water the use of a water conveyance facility which has unused capacity, for the period of time for which that capacity is available, if fair compensation is paid for that use. A contract for purchase is also a contract for sale. One cannot exist without the other. The Legislature did not specify that the entity with the contract for sale must be the seller. If it had, it might have defined "transferor" as "a person or public agency with a contract to sell water." In the context of the statute, "transferor" does not mean "seller," but an entity that transfers water from one place to another. That is precisely what the school district intends to do. Reversed and remanded.
People v. Giovanni M.
Case No. B136918
California Court of Appeal, First District, Division Four
JUVENILE-WAIVER OF RIGHT TO APPEAL PLEA AGREEMENT-PLEA TO NECESSARILY INCLUDED CHARGE
A minor waived his rights and admitted the truth of the allegations in counts 2, unlawful discharge of a firearm with gross negligence and 3, unlawful possession by a minor of a firearm capable of being concealed upon the person. The juvenile court sustained the petition and found the minor was a person described in the Welfare and Institutions Code. The juvenile court dismissed the more serious allegation in count 1 and the enhancement and "strike" allegation accompanying that count, as well as the allegation in count 4. At the disposition hearing, the juvenile court followed the agreement it reached with the minor, and the minor was committed to the Youth Authority for a maximum aggregated period of 5 years and 2 months.
HELD: When the minor chose to accept the bargain with the juvenile court in order to avoid a longer maximum period of confinement, the minor waived any right to claim that the court was precluded from sustaining the petition on count 3 even if it could be viewed as an act in excess of jurisdiction for the court to sustain count 3. Giovani's admission to count 3 was not improper because count 3 was a necessarily included offense of count 2. Under the statutory definition of count 2 it is possible to commit count 2 with a firearm that is not concealable, and its commission in that manner would not also violate count 3. Affirmed.
Pearl v. Workers' Compensation Appeals Board
Case No. B125991
California Court of Appeal, Second District, Division Six
WORKERS COMP-WHEN VESTED RIGHT TO DISABILITY RETIREMENT-EFFECT OF AMENDMENT OF STATUTE ON VESTED RIGHT
The Public Employees' Retirement Board awarded petitioner Rodney Scott Pearl a non-industrial disability retirement for injury to his psyche. Pearl asserts his disability is industrial. If so, he is entitled to a higher disability retirement allowance. Pearl petitioned the WCAB for a finding of industrial disability. It found that Pearl's disability was not industrial.
HELD: The exclusive remedy available to challenge a decision of the WCAB is a writ of review. Pearl asserts that this remedy denies him the right to independent review of a determination regarding a fundamental vested right and this court should regard his petition as one for writ of administrative mandamus. Pearl's argument is without merit. The Government Code requires appellate courts to review decisions by the WCAB by writ of review. Additionally, the issues Pearl raises on appeal do not involve substantiality of the evidence; they involve questions of law which we review de novo in all cases. The right to an industrial disability retirement could not and did not vest at the time Pearl was hired because the contingency triggering the enhanced benefit, injury to his psyche, had not yet occurred. The adoption and amendment of the statute did not impair a vested right; it merely modified a contingency or condition. Petition denied.
People v. Talibdeen
Case No. B130967
California Court of Appeal, Second District, Division Five
(Certified for publication with the exception of part A of the Discussion.)
CRIMINAL-MANDATORY STATE AND COUNTY PENALTY ASSESSMENTS
Talibdeen was convicted following his guilty plea to possession of cocaine and his admission that he suffered one prior serious or violent felony conviction for first degree burglary, which was alleged as a strike under the Three Strikes law. Talibdeen was sentenced to state prison for a total of 32 months, consisting of a low term of 16 months, which was doubled to 32 months under the Three Strikes law. State and County penalty assessments were not imposed.
HELD: A trial court has a mandatory duty to levy and impose a state penalty assessment of $10 for every $10 or fraction thereof of every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses. The trial court also has a mandatory duty under Government Code section 76000 to levy and impose a county penalty assessment of $7 for every $10 or fraction thereof of every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses. The trial court in the instant case was under a mandatory duty to impose a state penalty assessment of $50 and a county penalty assessment of $35 on the $50 laboratory analysis fee it ordered. The judgment was modified to reflect the imposition of a $50 state penalty assessment under the Penal Code and the imposition of a $35 county penalty assessment under the Government Code.
Letitia V. v. Superior Court/Orange County Social Services
Case No. G026904
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-REFUSAL OF REUNIFICATION SERVICES
In 1999, Levi entered the world under the influence of cocaine and the juvenile dependency system. He was immediately taken into protective custody by the Orange County Social Services Agency. His mother, Letitia, had a long history of substance abuse and a long history with SSA. Due to Letitia's continued involvement with dangerous drugs, the social worker stated that placing Levi with his mother would risk substantial detriment to the child.
At the review hearing the court found that active efforts had been made to prevent the breakup of an Indian family, but found those efforts had repeatedly proved unsuccessful. It further found vesting custody with Levi's parents would be detrimental to him, and that reasonable efforts had been made to eliminate the need for his removal from their care. Finally, the court declined to offer additional reunification services and set a permanency hearing.
HELD: Under California dependency law, reunification services need not be provided to a parent when the court finds, by clear and convincing evidence that the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent, or hat the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition that brought the child to the court's attention SSA has spent years trying to encourage Letitia to see a drug program through. Its workers have provided her referral after referral. And their plethora of efforts has been entirely unsuccessful. She has had a solid year of reunification services, not to mention years of informal services, to aid her in preventing the breakup of her family. But despite losing her children seriatim she has been unable to break the destructive cycle she began at least eight years ago. Petition for a writ of mandate was denied.
Renee J. v. Superior Court/Orange County Social Services
Case No. G026981
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-LACK OF EVIDENCE TO SUPPORT FINDINGS OF DRUG USE
Renee has an unfortunate history with her children. In August of 1999, the appellate court issued an opinion affirming orders terminating her parental rights to Christopher and Anthony. In the same proceeding, she also lost her parental rights to Dylan, a half-brother to Christopher and Anthony, although she did not appeal that order. Those cases were initiated directly after Anthony's birth in September of 1996, when a toxicology screen revealed the presence of methamphetamine in Anthony's system. At a hearing relating to the minor, Sayrah, the court held that denial of reunification services was justified.
HELD: SSA presented no evidence, beyond rank speculation, that Renee had been using drugs since her pregnancy with Sayrah. There was no positive toxicology screen when Sayrah was born, no failed drug tests, no witnesses claiming to have seen Renee using drugs or under the influence of drugs, and no drugs or drug paraphernalia found on Renee when she was arrested. Sayrah was reported to be happy and healthy when she was detained. Under those circumstances, there was simply no evidence that Renee's drug problems, no matter how long standing, were impairing her ability to parent Sayrah on a current basis. Because SSA specifically eschewed reliance on her past drug problems Renee had no notice it was in issue, and was deprived of a meaningful opportunity to address it. Accordingly, the court erred in relying upon that subdivision in denying reunification in this case. Additionally, in the absence of any evidence Renee was still using drugs, the court could not simply assume, as the social worker admittedly did, that she was. The petition for extraordinary relief is granted. The juvenile court was ordered to vacate its order denying reunification services and setting the matter for a permanency hearing. The court was ordered to hold a new dispositional hearing.
Linder v. Thrifty Oil Company
Case No. S065501
Supreme Court of California
CIVIL-CRITERIA FOR CLASS CERTIFICATION-MERITS OF ACTION-NO SUBSTANTIAL BENEFIT TO MEMBERS OF CLASS
Linder filed this action under the Song-Beverly Credit Card Act and other unfair business practices of Thrifty Oil. One class sought to be certified were those holders of credit cards who were charged $.04 per gallon more than cash customer. The other class consisted of those credit card users who were presented with credit card forms with preprinted space for cardholders to fill in their telephone numbers. The trial court below denied certification of this case as a class action. The Court of Appeal affirmed. Class certification was denied based upon the trial court's preliminary assessment that the cause of action alleged on behalf of the class as lacking merit. The Court of Appeal held that the aggregate amount of potential statutory penalties would be either too small or too onerous to support certification of the class.
HELD: The Code of Civil Procedure authorizes class suits in California when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. To obtain certification, a party must establish the existence of both an ascertainable class and a well-defined community of interest among the class members. The community of interest requirement involves three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. The Credit Card Act provides in relevant part: No retailer in any sales transaction with a consumer may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash. A retailer may offer discounts for the purpose of inducing payment by cash or other means not involving the use of a credit card, provided that the discount is offered to all prospective buyers. The question of certification as essentially a procedural one that does not ask whether an action is legally or factually meritorious. Nonetheless, we remain mindful that if the class action is to prove a useful tool to the litigants and the court, trial courts must be accorded the flexibility to adopt innovative procedures, which will be fair to the litigants and expedient in serving the judicial process. Certification should not be conditioned upon a showing that class claims for relief are likely to prevail. In concluding that no substantial benefit would result from certification, both the trial court and the Court of Appeal focused narrowly on each putative class member's potential recovery under the surcharge claim. Setting aside the fact that class members who were repeat customers might be entitled to recover far more than the minimal 80-cent damage figure noted by the trial court, it is firmly established that the benefits of certification are not measured by reference to individual recoveries alone. The lower courts here did not evaluate whether the proposed class suit is the only effective way to halt and redress the alleged wrongdoing, or to prevent unjust advantage to Thrifty. Remanded to the matter to the Court of Appeal, with directions that it remand to the trial court for further proceedings consistent with the opinion.
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page