Wasserman's Appellate Summaries
June 27, 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.
Diamond v. City of Taft
Case No. 98-17253
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONALITY-MUNICIPAL ORDINANCE RESTRICTING LOCATION OF ADULT BUSINESS
The City of Taft adopted and ordinance in 1995 which provides that adult entertainment businesses are permissible only in certain commercial and manufacturing zones and may not be located within 1000 feet of any area zoned for residential use, any other adult entertainment business, any public or private school, park, playground, public building, church, commercial establishment operated by a bona fide religious organization, or any establishment likely to be used by minors. Diamond owned and operated a pawnshop in the City. He closed the pawnshop and applied for a use permit to sell adult books. The property was within 1000 feet of parks, churches, and residences. Diamond sued the City challenging the constitutionality of the zoning ordinance restricting the locations in which adult businesses can operate. At trial only three sites would satisfy the location ordinance. The district court found the ordinance constitutional.
HELD: By merely asserting that the three complying sites lacked proper infrastructure, Diamond did not show that the sites were inadequate for any generic commercial enterprise. Despite the current unavailability of these sites, Diamond did not offer sufficient evidence to show that these sites would not reasonably become available to any commercial enterprise. There is no constitutional requirement that a city make available a certain number of sites. Affirmed.
Lim v. City of Long Beach
Case No. 98-55915
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONALITY- MUNICIPAL ORDINANCE RESTRICTING LOCATION OF ADULT BUSINESS-BURDEN OF PROOF OF ADEQUATE NUMBER OF PROPERTIES SUITABLE FOR PURPOSE OF ADULT BUSINESS-DISCRIMINATORY ENFORCEMENT OF ZONING ORDINANCES
The City of Long Beach ordinance provided that an adult entertainment business may not be located within (1) 300 feet of a residential zoning district or a residential planned development district; (2) 1,000 feet of any public or private school; (3) 600 feet of any city park; (4) 500 feet of a church; or (5) 1,000 feet of any other adult entertainment business. The ordinance established an eighteen-month amortization period for existing adult businesses. The owners of three adult book and video stores and an adult mini-theater sued the City of Long Beach challenging the constitutionality of a Long Beach zoning ordinance restricting the locations in which adult businesses can operate. At trial Long Beach identified 115 sites that were available for use by adult businesses. It provided specific and detailed information about each site. Long Beach also noted that these 115 sites did not represent every site that was potentially available to adult businesses. The City enforced the Adult business location more vigorously than it did other zoning ordinances. The district court found that the ordinance did not violate the Plaintiffs' rights under the First Amendment or the Equal Protection Clause.
HELD: Where an ordinance does not ban adult businesses outright, but limits the areas of a city in which they may operate, it is considered a content-neutral time, place, and manner restriction. The burden of proving alternative avenues of communication rests on Long Beach. A city allows for alternative avenues of communication if it offers adult businesses a "reasonable opportunity to open and operate within the city. Sites must only reasonably become available to some generic commercial enterprise, not specifically to adult businesses. Here, there is evidence that Long Beach had a rational reason for enforcing its adult business ordinance and not enforcing other zoning ordinances. Long Beach enforces its adult business ordinance because of its interest in curbing the secondary effects of adult businesses. Affirmed in part, reversed in part and remanded.
United States v. Poehlman
Case No. 98-50631
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-ENTRAPMENT-PREDISPOSITION TO DO CRIMINAL ACT
Poehlman is a cross-dresser and foot-fetishist. He made contact with a Sharon, who indicated she understood his needs. Sharon solicited specifics of what Poehlman could teach her children. In later e-mails, Poehlman graphically detailed his ideas to Sharon, usually at her prompting. Among these ideas were oral sex, anal sex and various acts too tasteless to mention. A meeting was arranged for Poehlman to give the children the first lesson. Poehlman was arrested and convicted under California law with attempted lewd acts with a minor. Two years after his release he was convicted in federal court of crossing state lines for the purpose of engaging in sex acts with a minor in federal court.
HELD: In their zeal to enforce the law Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. The government induces a crime when it creates a special incentive for the defendant to commit the crime. This incentive can consist of anything that materially alters the balance of risks and rewards bearing on defendant's decision whether to commit the offense, so as to increase the likelihood that he will engage in the particular criminal conduct. Even if the government induces the crime, the defendant can still be convicted if the trier of fact determines that he was predisposed to commit the offense. It was Sharon who first suggested that Poehlman develop a relationship with her daughters. Sharon did not merely invite Poehlman to have a sexual relationship with her minor daughters, she made it a condition of her own continued interest in him. The Court found that there was not evidence of predisposition to have sex with children. Reversed.
United States v. Sims
Case No. 99-15665
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-POWER OF THE TRUSTEE OF THE BANKRUPTCY ESTATE TO AVOID NET OPERATING LOSS ELECTION
Sims, as trustee of the bankruptcy estate of the Feilers, sought to avoid as fraudulent an election to forego a net operating loss carryback. Under the Internal Revenue Code a taxpayer's election to forego a net operating loss carryback is "irrevocable". Under the Bankruptcy Code a bankruptcy trustee may avoid any transfer" of an interest of the debtor in property when made under conditions set forth in the statute as a fraudulent transfer. The Bankruptcy court found the trustee had the power to avoid the election and the Bankruptcy Appellate Panel affirmed.
HELD: The Bankruptcy Code provides that: The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily-- (A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and, (ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation. Congress intended that Net Operating Losses not be beyond the trustee's grasp. This valuable asset was to be used for the benefit of the estate. Affirmed.
Hornung v. Superior Court/Zych
Case No. D034993
California Court of Appeal, Fourth District, Division One
CRIMINAL-SEPARATION OF POWERS-SUBPOENA OF QUASI JUDICIAL ADMINISTRATIVE OFFICERS
Real Parties are inmates serving indeterminate life terms. Each filed a petition of habeas corpus challenging the decision to deny parole at his most recent parole suitability hearing. Real Parties subpoenaed Deputy Commissioner Carol Bentley and Commissioner Thomas Giaquinto to appear at the evidentiary hearings. On November 30, Petitioners filed motions to quash the subpoenas. After a hearing, the court issued an order denying the motions to quash but limiting the commissioners' testimony to training, policies, and evidence about the Respondents' specific cases.
HELD: Review is not generally available to resolve the admissibility of evidence, which is normally resolved by appeal. When the remedy by appeal is rendered is inadequate in the context of a specific case, the appellate court may, in its discretion, permit an aggrieved party to bypass the appellate process and pursue extraordinary relief. An administrative officer performing a quasi-judicial function may not be questioned about his mental processes. The constitutional doctrine of separation of powers precludes the court from inquiring into the mental processes or motivation that underlie the commissioners' actions. Unfortunately, the court's attempt to limit the commissioners' testimony still violates the separation of powers doctrine. First, the law clearly holds that a court may not inquire as to what materials a quasi-judicial officer reviewed and relied upon in making a decision. Second, the distinction the court attempted to draw between the training and the written and oral directives that are controlling in a parole suitability and release date hearing -on the one hand - and the mental processes that result in a decision -on the other hand - is a distinction without a difference. Mandate issued, directing the Superior Court to vacate the portion of its order denying the motions to quash the subpoenas of Commissioners Bentley and Giaquinto and to issue an order quashing those subpoenas.
Maryland Casualty/National Union Fire Insurance v. Nationwide Mutual Insurance
Case No. D032972
California Court of Appeal, Fourth District, Division One
INSURANCE-EQUITABLE SUBROGATION-EQUITABLE CONTRIBUTION
Nielsen Construction was hired to build a residential development. Nielsen retained West Coast Sheet Metal and R.W. Strang Mechanical as subcontractors. The subcontract agreements required West Coast and Strang to name Nielsen as an additional named insured and provided specifically that such policies are primary and noncontributing with any other insurance carried or available to Nielsen. West Coast and Strang obtained liability insurance coverage from Nationwide and purchased additional insured endorsements. When Nielsen was sued for construction defects, Nielsen tendered defense of the action to its own insurers (Maryland and National Union), and to each of the subcontractor insurers under the additional insured endorsements. Maryland and National Union ultimately paid for Nielsen's defense in the action. Maryland and National Union then brought claims against each subcontractor insurer for recovery of the defense costs under equitable subrogation and equitable contribution theories. The court shifted the entire defense burden to Nationwide under equitable subrogation principles.
HELD: In the insurance context, equitable subrogation and equitable contribution doctrines each pertain to the allocation of costs when there is more than one potentially responsible insurance company. But the two doctrines are "entirely different" concepts. Equitable subrogation allows an insurer who paid coverage or defense costs to be placed in the insured's position to pursue a full recovery from another insurer who was primarily responsible for the loss. Because this doctrine shifts the entire cost burden, the moving party insurer must show the other insurer was primarily liable for the loss and that the moving party's equitable position is inferior to that of the second insurer. Equitable contribution, on the other hand, applies to apportion costs among insurers who share the same level of liability on the same risk as to the same insured. It arises when several insurers are obligated to indemnify or defend the same loss or claim, and one insurer has paid more than its share of the loss or defended the action without any participation by the others. In this case, there was no evidence showing that Nielsen and the two subcontractors had agreed the subcontractors would be responsible for costs that did not pertain to their work. The fact that one of Nationwide's policies imposed on Nationwide the primary obligation to pay for the additional insured's vicarious liability coverage does not mean that Maryland and National Union are entitled to shift the entire obligation of Nielsen's defense to Nationwide. Reversed. On remand, the trial court shall apply the equitable contribution doctrine and reallocate the defense costs among the parties in accordance with the insurance contracts and equitable principles.
Maranian v. Workers' Compensation Appeals Board/Simplot
Case No. F033647
California Court of Appeal, Fifth District
(Certified for publication with the exception of Part III.)
WORKERS' COMPENSATION-FINAL DECISION FOR PURPOSES OF JUDICIAL REVIEW
At trial, the Workers' Compensation Judge applied the presumption of liability in the Labor Code and awarded benefits. The Board granted Simplot's petition for reconsideration. The WCJ again applied the statutory presumption and awarded Maranian benefits. The Board reversed and remanded for a new trial on all issues, including liability. Maranian sought judicial review.
HELD: The WCAB decision challenged by Maranian did not decide the merits of Maranian's claim for compensation, and it is possible Maranian may succeed, at the ordered plenary trial, in proving liability and a right to the benefits he wants. Were the usual rules of civil appellate practice to apply, the WCAB's order would not be a "final," and therefore not an appealable, order. A writ of review from the Board's order on reconsideration lies under the statute, because the order resolved, for purposes of the compensation proceedings, a substantial issue fundamental to the employee's entitlement to benefits. Affirmed.
In Re: Vargas
Case No. B137582
California Court of Appeal, Second District, Division Three
CRIMINAL-HABEAS CORPUS-INEFFECTIVE COUNSEL
Vargas pled nolo contendere to three counts of forcible lewd conduct upon a child and was sentenced to a total prison term of 24 years. He sought habeas corpus, on the grounds of ineffective assistance of counsel.
HELD: Petitioner contends he did not receive effective assistance of counsel. An evidentiary hearing is warranted as the issue hinges upon the credibility of witnesses. A claim of ineffective assistance of counsel has two components: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. The voluntariness of a plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. In this case the repeated and severe accusations of misfeasance on the part of attorney Vargas have been recognized by many courts as having substance worthy of investigation. The Court took judicial notice of the number of cases in which attorney Vargas represented criminal defendants. These and other cases may establish a pattern by attorney Vargas of rendering ineffective assistance of counsel. There is strong evidence that attorney Vargas is lying when she says she did not know of, nor was able to contact, witnesses. There is no evidence that attorney Vargas had prepared to present evidence on petitioner's behalf, even though witnesses were willing to do so. The petition for a Writ of Habeas Corpus was granted and the superior court was directed to conduct an evidentiary hearing.
Wasserman's Archived Appellate Summaries
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