Wasserman's Appellate Summaries
June 29, 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.
United States v. Harrison
Case No. 99-10496
U.S. Court of Appeals for the Ninth Circuit
ORDER-CRIMINAL-SIXTH AMENDMENT-RIGHT TO COUNSEL
Amendment to slip opinion filed May 30, 2000, not affecting the judgment.
Radici v. Associated Insurance
Case No. 98-17437
U.S. Court of Appeals for the Ninth Circuit
OTHER-REQUIREMENT FOR CONTINUED MEDICAL BENEFITS WHEN CHANGING HEALTH CARE INSURER-CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT-PUBLIC HEALTH SERVICES ACT
Michelle Radici was born in 1982 with debilitating medical conditions that left her totally disabled: a brain stem anomaly, hydrocephalus, spina bifida and the congenital absence of one kidney. Since 1990, Michelle's substantial medical bills were paid by her father's health insurer, AICI. The Radici family moved to Las Vegas, Nevada, where Joseph had obtained a new position with a local school district. By virtue of his new position, Joseph and his family became enrolled in the health care plan offered by the Las Vegas school district. The Nevada policy excluded coverage of pre-existing medical Conditions. AICI canceled Michelle's coverage because the Nevada policy's one-year exclusion of coverage for pre-existing conditions had lapsed. AICI contended that the lapse of that exclusion automatically terminated AICI's obligation to provide continuation coverage under the Indiana policy, because Michelle could now be covered under the Nevada policy. The Nevada insurer would not agree to provide round-the-clock skilled nursing care. Despite her family's efforts, Michelle Radici died three months later. The Radici's sued right after the Nevada policy limited coverage. The district court dismissed the state law claims on preemption grounds and the federal claims because of mootness after Michelle died.
HELD: The Consolidated Omnibus Budget Reconciliation Act provisions mandating that group health plans provide continuation coverage benefits were placed in both the Public Health Services Act and the Employee Retirement Income Security Act. There are four distinct types of federal preemption of state law: (1) Congress may expressly state preemptive effect; (2) inferred intent where the scheme of federal regulation is comprehensive; (3) Congress's intent to preempt a whole field may be inferred if the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject; and, (4) compliance with both federal and state regulations is physically impossible. The Court found that Congress did not intend COBRA beneficiaries (under ERISA) to be denied appropriate state law remedies for improper denials of continuation coverage. Because nearly identical COBRA benefits were also placed in the PHSA the Court concluded that the same preemptive scope was intended. Reversed and remanded.
United States v. Smith
Case No. 99-10171
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-POSSESSION OF FULLY AUTOMATIC WEAPON-INSTRUCTIONS-FAILURE TO GIVE INSTRUCTION AS TO MISTAKEN BELIEF THAT THE WEAPON WAS SEMI AUTOMATIC-COMMERCE CLAUSE
Smith was stopped when the vehicle he was driving fit the description of a stolen vehicle. He was found to be a convicted felon, who had failed to register with the police department. A search of his vehicle revealed a fully automatic rifle. His motion to suppress the evidence obtained as a result of the investigatory stop of his vehicle was denied. He was convicted of possession of a machine gun. Smith was given a two point increase in his base sentence because the instant offense was committed within two years of his release from imprisonment.
HELD:The description of the stolen vehicle, a police helicopter report that he was leaving the place where he was observed in an expeditious manner, attempting a U-turn when the police car lights were activated, and approaching the officer at a high rate of speed, were all factors justifying probable cause for an investigatory stop of the vehicle Smith was driving. The trial court refused an instruction to the effect that he would be not guilty if the jury found that after discovering the rile he bought was fully automatic he made an immediate effort to have the rifle modified. The refusal to give Smith's instruction might have been harmless if the prosecutor had not argued extensively about Smith's knowledge that as soon as Smith knew the weapon was fully automatic the crime had been committed, regardless of whether he had believed it to be semi-automatic when he purchased it. The legislation does not exceed Congress's power under the Commerce Clause of the Constitution. Reversed.
Johnson v. Lewis
Case No. 98-16821
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-EIGHT AMENDMENT-CRUEL AND UNUSUAL PUNISHMENT AFTER PRISON RIOT-SUBJECTIVE AND OBJECTIVE COMPONENTS OF CAUSE OF ACTION
There were two prison riots at the Arizona State Prison in 1995. After the riots ere brought under control the prisoners were kept outside until the entire prison was completely searched. The inmates who were held outside on each occasion brought class actions against Arizona prison officials asserting that the conditions under which they were held violated the Eighth Amendment's prohibition against cruel and unusual punishment. The district court granted summary judgment for the defendant prison officials.
HELD: The Eighth Amendment prohibits cruel and unusual punishment of a person convicted of a crime. To succeed in an action the prisoner must make an objective showing that the deprivation was sufficiently serious to form the basis for an Eighth Amendment violation. Secondly, the plaintiff must make a subjective showing that the prison official acted with a sufficiently culpable state of mind. The circumstances, nature, and duration of a deprivation of these necessities must be considered in determining whether a constitutional violation has occurred. The more basic the need, the shorter the time it can be withheld. In this case the plaintiffs provided evidence of substantial deprivations of shelter, food, drinking water, and sanitation. This evidence, if believed, shows harm of sufficient magnitude to satisfy the objective prong of an Eighth Amendment violation. The district court did not resolve the question of the prison officials' mental state because it incorrectly held that the prisoners could not prove a sufficiently serious objective harm. The evidence shows that once the inmates were secured in the yard, the state-of-mind requirement that sufficed to show an Eighth Amendment violation was deliberate indifference to their basic physical needs. Reversed and remanded for further proceedings.
United States v. Williams
Case No. 99-10295
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-CONSIDERATION OF CRIMES BEYOND STATUTE OF LIMITATIONS IN SENTENCING
Williams was the secretary-treasurer of the American Federation of Government Employees. Over a period of time Williams wrote 162 checks on the union account to himself, to cash, or to his creditors. All sums were converted to his personal use. Williams pleaded guilty to one count of embezzlement within the special maritime and territorial jurisdiction of the United States and one count of making false statements to a department of the United States. In calculating Williams' sentence, the district court included amounts more than five years before the indictment.
HELD: A district court may consider as relevant conduct for sentencing purposes actions which may be barred from prosecution by the applicable statute of limitations. There was no error in sentencing. Affirmed.
Simi Valley Adventist Hospital v. Diana Bonta, Director, State of California, Department of Health Services
Case No. B117712
California Court of Appeal, Second District, Division Four
ORDER
Modification of opinion, filed on June 7, 2000, not affecting the judgment.
Rubenstein v. Rubenstein
Case No. B123085
California Court of Appeal, Second District, Division Three
FAMILY LAW-SETTING ASIDE JUDGMENT OF DISSOLUTION DISTRIBUTING COMMUNITY ASSETS-FRAUD AND PERJURY IN DISSOLUTION ACTION-STATUTE OF LIMITATIONS TO BRING ACTION TO SET ASIDE JUDGMENT OF DISSOLUTION-COMMENCEMENT OF STATUTE OF LIMITATIONS PERIOD
Arteena and Alan began living together in 1970, had a daughter in 1972, were married in 1976 and separated in 1984. Alan filed for dissolution. Arteena filed trial briefs in which she accused Alan of perjury on the basis that he had hidden assets from the court in that he had received income from the estate of Jimi Hendrix and from Are You Experienced? Ltd., the company which marketed Jimi Hendrix's works. In February 1992, trial was held. The court found there were no community assets subject to the court's disposition. In March 1992, Arteena filed motions to vacate the judgment and for new trial on the ground Alan gave false testimony at trial and that she had newly discovered evidence regarding community property. The trial court again found there were not community assets. The appellate court affirmed. In May of 1997, Arteena filed this action to set aside the further judgment. Alan's motion for summary judgment, on res judicata and statute of limitations grounds was granted.
HELD: Since 1993 the legislature has made it clear that there is a one-year statute of limitations for an action to vacate a dissolution judgment on the grounds of fraud or perjury. The remedy under the statute is a setting aside of the judgment, not a tort action for concealment of community assets. The one-year period begins to run from the date on which the plaintiff either discovered, or should have discovered, the facts constituting the fraud or perjury. The statute of limitations under the statute accrues as of the date the plaintiff either discovered or should have discovered the facts constituting the fraud or perjury, not the date the plaintiff began to suspect the fraud or perjury. The record discloses that Alan failed to meet his burden, as a defendant moving for summary judgment, of establishing Arteena either discovered or should have discovered his alleged fraud or perjury more than one year before she commenced this action. Reversed.
Shvarts v. Budget Group
Case No. B126504
California Court of Appeal, Second District, Division Four
OTHER-EXCESSIVE CHARGES FOR REFUELING BY CAR RENTAL COMPANY-UNFAIR COMPETITION ACT
The Shvart's complaint alleges a class action relating to rental car companies charging customers punitive fees for gasoline when the customers fail to comply with their obligation to return rented vehicles with the same level of fuel the car contained when originally delivered to them. The Budget rental agreement provides that the rental may refill the gas tank, buying the fuel at the inception of the rental, or being charged for the missing gasoline at a specified rate. Budget's demurrers to all causes of action were sustained.
HELD: The Unfair Competition Act prohibits unfair competition, which is defined as "any unlawful, unfair or fraudulent business act or practice. The Civil Code provides that; Items and services for which the rental company may impose an additional charge, include, but are not limited to, . . . charges for refueling the vehicle at the conclusion of the rental transaction in the event the renter did not return the vehicle with as much fuel as was in the fuel tank at the beginning of the rental. Each of the three payment options is clearly printed, in boldface, in the rental agreement provided to appellants at the time of rental. Nor can the amount of the refueling service option be claimed as a "surprise" given that the amount-per-gallon, $3.58, is clearly printed on the first page of the rental agreement. Affirmed.
Pullin v. Superior Court/Von's Companies
Case No. B139532
California Court of Appeal, Second District, Division One
PERSONAL INJURY-INVESTIGATION BY EXPERT WITNESS-FAILURE TO MAKE INSPECTION DEMAND FOR CONDUCTING TEST OF FLOOR SURFACE
Pullin slipped and fell at a Vons Market in Inglewood. Pullin sued The Vons Companies, for negligence. Pullin retained a forensic safety engineer, Ralph Engdahl, and designated Engdahl as his expert on the issue of liability. Vons noticed Engdahl's deposition. Pullin, in turn, telephoned Vons's lawyer to ask for permission for Engdahl to "conduct tests" on the floor at the Inglewood market. Vons's lawyer responded with a dissertation on Pullin's failure to timely serve a proper request for an inspection" and refused to allow Engdahl to inspect the premises or conduct any tests. While the Inglewood store was open for business, Engdahl went to the store, examined the spot where Pullin had fallen, used a small machine to conduct a test on the floor, purchased an item, then left the store. The entire process took about 15 minutes. No one complained or asked him to leave. Based on his test, Engdahl was prepared to testify at trial that, when wet, the co-efficient of friction on the floor was below acceptable safety standards, and that the condition of the floor caused Pullin's fall. On motion in limine Engdahl's testimony was ordered excluded.
HELD: There is scant authority on the distinction between formal discovery and investigation, with everyone apparently assuming that everyone else knows the difference. Evidence is not made inadmissible by the simple fact that it is obtained by investigation rather than by way of formal discovery. A peremptory writ of mandate issued compelling the trial court to vacate its order excluding Engdahl's testimony about his test.
Krusi v. S.J. Amoroso Construction
Case No. A086602
California Court of Appeal, First District, Division Two
ORDER
Modification of opinion filed herein on June 23, 2000, not affecting the judgment.
Baker v. Snyder, Acting Director of the Department of Motor Vehicles
Case No. E025915
California Court of Appeal, Fourth District, Division Two
ADMINISTRATIVE-DEPARTMENT OF MOTOR VEHICLES-SUSPENSION OF LICENSE-INTEGRITY OF BLOOD SAMPLE DURING ANALYSIS
Baker was arrested on suspicion of driving under the influence of alcohol. He took a blood test. The chain of title for the blood sample shows its delivery to the test laboratory, but no evidence that the vial containing the blood sample was ever opened or that the sample ever left the custody and control of the laboratory where it was ultimately tested. The sample went to the police laboratory, where it was analyzed at .09 blood alcohol content. At the DMV hearing Baker's expert testified that the chain of custody showed the blood sample seal was broken six days before the blood sample was analyzed. The DMV ordered the license suspended. Baker sought mandamus. The trial court issued a writ of mandate requiring the DMV to set aside the license suspension.
HELD: Baker had the burden of proving the nonexistence of the foundational trustworthiness of the BA report, and specifically, the nonexistence of the foundational reliability of the tests. There is no evidence that demonstrates that the cutting of the seal was the equivalent of opening the sample. As such, there is no evidence that the vial was opened or that the contents of the vial were mixed with any other ingredient. The record shows no more than a mere possibility that the integrity of the sample was not maintained. Such speculation is insufficient to support a reasonable inference that the integrity of the sample was, in fact, compromised. Reversed and remanded.
Kaiser v. Lockyer
Case No. S069522
Supreme Court of California
CONSTITUTIONALITY-ASSAULT WEAPONS CONTROL ACT-DUE PROCESS-DELEGATION OF POWER TO ATTORNEY GENERAL TO ADD WEAPONS TO REGULATED CATEGORY
Kasler challenges the constitutionality of the Roberti-Roos Assault Weapons Control Act, which classified certain weapons as assault rifles and restricts their possession. The trial court dismissed Kasler's action. The Court of Appeals found the statute unconstitutional.
HELD: The Court rejected any suggestion that the regulations at issue impermissibly infringe upon the right to defend life or protect property guaranteed by the California Constitution. As the AWCA does not burden a fundamental right under either the federal or the state Constitutions, the rational basis test applies. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. There is no violation of the separation of powers by allowing the Attorney General to add new weapons to the regulated category of assault weapons. None of the three branches is aggrandized by the delegation or encroached upon by it. The authority delegated to the superior court - to serve as a check on the power delegated to the executive branch by reviewing the question whether a firearm the Attorney General wishes to add to the list of assault weapons satisfies the criteria set forth in the statute - is appropriate to the central mission of the judiciary. Reversed the Court of Appeal.
People v. Rios
Case No. S055790
Supreme Court of California
CRIMINAL-MALICE AS AN ELEMENT OF MANSLAUGHTER-INSTRUCTIONS-PROVOCATION AND IMPERFECT SELF DEFENSE
Rios was convicted of voluntary manslaughter for a homicide the jury found to be both unlawful (i.e., neither justified nor excused) and intentional.
HELD: Manslaughter is an unlawful killing without malice, the element necessary for the greater offense of murder. Malice may arise when one kills, without legal justification or excuse, and with specific lethal intent or conscious indifference to the likelihood of death. Provocation and imperfect self-defense, though they do not justify or excuse an intentional or consciously indifferent homicide, mitigate the offense by negating the murder element of malice, and thus limit the crime to manslaughter. By statute and long-standing case law, an intentional but nonmalicious criminal homicide is voluntary manslaughter but no lesser offense. Where murder liability is at issue, evidence of heat of passion or imperfect self-defense bears on whether an intentional or consciously indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus the lesser offense of voluntary manslaughter. In such cases, the People may have to prove the absence of provocation, or of any belief in the need for self-defense, in order to establish the malice element of murder. But malice is not at issue upon a charge of voluntary manslaughter. A manslaughter charge concedes the absence of the murder element of malice. The trial court did not err by failing to instruct on provocation and imperfect self-defense as elements of voluntary manslaughter. That being so, the Court of Appeal correctly rejected defendant's claim that the instructional omission requires reversal of his conviction. Affirmed the Court of Appeal.
Wasserman's Archived Appellate Summaries
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