Wasserman's Appellate Summaries
June 30, 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.
True v. Shank
Case No. E024465
California Court of Appeal, Fourth District, Division Two
(Certified for publication with the exception of parts II. and III.)
PERSONAL INJURY-PROCEDURE-NOTICE OF DEPOSITION OF EXPERT WITNESS-FAILURE TO ACCOMPANY NOTICE OF DEPOSITION OF EXPERT WITNESS WITH FEE-SANCTIONS FOR OBJECTION TO NOTICE OF DEPOSITION OF EXPERT WITNESS AND FAILURE TO ARRANGE FOR ALTERNATE DATE FOR DEPOSITION
Martin True fell from a ladder at a property owned by the Shanks. The ladder was manufactured by Keller and sold by K-Mart. True sued for negligence, premises liability, products liability and loss of consortium. True designated Dr. Mark Greenspan and Paige Eskridge as experts retained to testify at trial. The Shanks noticed expert witness depositions for Dr. Greenspan and Eskridge. Four days before the scheduled depositions, True served an opposition to the noticed depositions, objecting to the date and location of the depositions and requesting that mutually convenient dates for the depositions be arranged between counsel. The opposition did not state that the basis of the objection was defendants' failure to tender expert witness fees with the notice of depositions. Shanks' attorney responded in substance that the objection to the date was not meritorious and since she was not available before the time to take the deposition expired she insisted that the deposition would go forward as scheduled. When K-Mart and Keller noticed the deposition of Paige Eskridge, True's attorney objected to the date, K-Mart's attorney indicated that the objection to the date was not meritorious. The trial court granted defendants' motions in limine to preclude plaintiffs' expert witnesses from testifying. The court later granted a motion for nonsuit.
HELD: In regard to the deposition of an expert witness the statute provides that if the party noticing the deposition fails to tender the expert's fee the expert shall not be deposed at that time noticed, unless the parties stipulate otherwise. The noticing party is given the option of either tendering the expert's fees at the time of serving the notice of deposition, or tendering that fee at the commencement of the deposition. The trial court correctly held that defendants' deposition notices, which were not accompanied by the tender of expert witness fees, were proper. The record indicates that True failed to provide defendants with a single date wherein the experts' depositions could be taken. Instead, True's counsel continually informed defendants that she was working on clearing dates for the depositions. Affirmed.
Billiards v. City of Torrance
Case No. B128098
California Court of Appeal, Second District, Division Two
REAL PROPERTY-CONDITIONAL USE PERMIT-DISQUALIFICATION OF CITY COUNCIL MEMBERS FOR RECEIVING CONTRIBUTIONS FROM PERSON WITH ADVERSE INTEREST TO APPLICANT-BIAS DISQUALIFICATION BY COUNCILMAN FILING APPEAL OF PLANNING COMMISSION HEARING-NOTICE OF ISSUES AT COUNCIL HEARING
BreakZone has operated a billiard parlor, oriented to youth, in a retail development zoned C-3 and C-4 near the Torrance airport. In 1997 BreakZone applied to the Planning Department of the City of Torrance for a modification to its previously issued Conditional Use Permit in order to sell alcoholic beverages at the new location for its business. Only the Police Department objected to the permit. Opposition to the CUP was also filed by various neighbors and youth oriented business. BreakZone submitted letters and evidence in support of the CUP. After the public hearing, the planning commissioners added conditions to the CUP and approved the project on a four-to-one vote. Councilman Dan Walker filed an appeal to the decision of the planning commission. Prior to the hearing by the City Council, BreakZone challenged four city council members. The four council members whose participation had been challenged in the request for recusal each acknowledged receipt of campaign contributions and stated that circumstance would not affect their consideration of, or vote on, the application. Council member Walker further stated that he had filed the appeal because of significant community concern; he had met with counsel for BreakZone to discuss the matter; he had not already determined how he would vote; and he would give the matter a fair hearing. He also stated he intended to hear the appeal with an open mind and make his decision based upon the facts and the law. After the hearing the council voted unanimously to deny the application for the CUP. The superior court denied BreakZone's application for a writ of mandate.
HELD: Walker filed his notice of appeal on a form provided by the city. The form gave adequate notice of the nature of the proceeding before the city council: At the de novo hearing before the city council on the "appeal" of an application for a permit, the applicant bears the burden of demonstrating its entitlement to the permit. This standard was confirmed by our Supreme Court more than 33 years ago. BreakZone assertion of conflict of interest based upon the campaign contributions received by four of the members of the city council at least 17 months earlier did not establish that any council member had any present interest in the CUP, direct or indirect. The concept that campaign contributions perpetually disqualify the recipient from participating in governmental decisions has been expressly and emphatically rejected by our Supreme Court. Advance knowledge of adjudicative facts that are in dispute, as well as participation in the charging function, do not disqualify the members of an adjudicatory body from adjudicating a dispute; nor does the combination of such functions disqualify them from (1) determining that further investigation is warranted, (2) issuing the order to appear, and, (3) making the ultimate decision after hearing on the merits. Combining investigative and adjudicative functions in an administrative proceeding does not, by itself, constitute a denial of due process. There was substantial evidence to support at least some portions of the resolution of the Torrance City Council and, thus, the action which is before this court for review. Affirmed.
Coffney v. Family Savings and Loan Association
Case No. B119732
California Court of Appeal, Second District, Division Two
REAL PROPERTY-SALE UNDER DEED OF TRUST WITH POWER OF SALE-DATE ON WHICH NON JUDICIAL SALE CAN TAKE PLACE AFTER RESTRAINING ORDER TERMINATED-ERROR IN INFORMATION IN NOTICE OF DEFAULT
Goffney, a lawyer, purchased a condominium, which was financed by a secured loan from Family Savings and Loan. Goffney made payments which he characterized as principal only, even though Family Savings considered the checks to be for the principal and interest due on the note and received no other payments in any month in which the purported principal only payments were made. Family filed a Notice of Default and election to sell under the deed of trust. Thereafter, each time Goffney made a monthly payment Family returned it with a letter stating the reason for its rejection and the amount that Goffney must pay to reinstate the loan. In the notice of default and in each of these letters, Family Savings misstated the date of the initial failure to pay as "5-1-91", when in fact the correct original default date was that stated in its October 31 letter to Goffney: "5-1-90." Each letter correctly stated the amount due and the number of payments missed. When the trustee recorded a notice of sale, setting the sale for March 25, 1992 Goffney filed suit. The trust deed sale was held and the beneficiary was the successful bidder. Goffney's motions to set aside the judgment and for new trial were denied and Family Savings' motion for attorney fees was granted, the court awarding counsel for Family Savings $113,374.72 in attorney fees and costs.
HELD: The power of the trustee to sell the property upon default is created or authorized not by statute but solely by the contract between the lender and the trustor as embodied in the deed of trust. The statutes regulating nonjudicial foreclosures are not enabling or authorizing statutes; rather, they are exercises of the state's police power to restrict and limit private powers to the extent the Legislature has determined necessary. The statue provides, with respect to the time a sale can take place after a restraining order is terminated: the sale shall be conducted no sooner than on the seventh day after expiration or termination of the injunction, restraining order or stay (which required postponement of the sale) unless the order expressly directs the conduct of the sale within that seven-day period. If the sale had been scheduled to occur, but this subdivision precludes its conduct during that seven-day period, a new notice of postponement shall be given if the sale had been scheduled to occur during that seven-day period. The Court held that it was proper to conduct the sale on the seventh day after the termination of the court order, and in determining the seventh day, the day on which the order ceases to have effect is excluded and the last day of the period is included. An obvious error in information, not specifically required to be included and known by the defaulting trustor to be in error, will not serve to invalidate a nonjudicial foreclosure sale. Affirmed.
People v. Mooc
Case No. G023714
California Court of Appeal, Fourth District, Division Three
CRIMINAL-PITCHESS MOTION FOR PEACE OFFICERS RECORDS-MISCONDUCT BY PROSECUTOR
Mooc was in jail under an immigration hold. While he was assigned to the administrative segregation module - a special area reserved for difficult inmates - a fight broke out between a guard and him. As a result of this incident, Mooc was charged with battery on the officer. His motion to review the officer's personnel file was predicated on his intention to prove that the officer caused the fight and that he merely defended himself. The trial court reviewed the file in camera and denied the motion. Mooc was convicted of battery.
HELD: The Court of Appeal sought to augment the record with the in camera file reviewed by the trial court in camera. What the Court received it described as, a mountain of bureaucratic disobedience. The Court concluded from what it had seen that, in this case, the court was barred from ever exercising its discretion. Because the trial court never received the complete personnel file to review, its decision on the motion was without any rational basis. There was also prosecutorial misconduct in improperly cross-examining two defense witnesses as to a possible fabrication of their testimony at the instigation of a third party. The two witnesses, Le and Vo, testified that Garcia pushed Mooc into a corner and then hit him in the head. The prosecutor asked them whether another inmate named Solis had proposed they get together and pin this on the guard. The prosecution failed to present any evidence that such a hearsay statement was ever made by Solis or anyone else. The prosecutor then insisted on arguing that, irrespective of the lack of evidentiary support, the two witnesses came in here and committed perjury. Reversed with directions to strike the great bodily injury enhancement before any retrial.
People v. James
Case No. A083198
California Court of Appeal, First District, Division Three
ORDER
Modification of opinion filed on June 9, 2000, not affecting the judgment.
Teyssier/McCarty v. City of San Diego
Case Nos. D033171/D033622
California Court of Appeal, Fourth District, Division One
ORDER
Modification of opinion filed June 15, 2000, not affecting the judgment.
Alpert v. Villa Romano Homeowners' Association
Case No. B118182
California Court of Appeal, Second District, Division Two
ORDER
Modification of opinion filed on May 31, 2000, not affecting the judgment.
S.S. Retail Stores v. Ekstrom
Case No. 99-16413
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-EQUITABLE MOOTNESS-FAILURE TO SECURE STAY OF ORDER-DISGORGEMENT OF FEES PAID ATTORNEY OVER OBJECTION OF U.S. TRUSTEE
S.S. Retail Stores filed for reorganization under Chapter 11 bankruptcy reorganization proceedings. Gibson, Dunn & Crutcher was appointed as its attorney over the objection of the U.S. Trustee, that a partner of the proposed attorney had served as an officer of the debtor. The district court dismissed the appeal.
HELD: An appeal from a bankruptcy court's order is equitably moot when, in the absence of a stay, events occur that make it impossible for the appellate court to fashion effective relief. In this case compelling disgorgement of Gibson, Dunn's fees and expenses would not require the bankruptcy court to unravel a complicated bankruptcy plan. The appeal is not equitably moot. An order of disgorgement would be harsh and would create a difficult ethical dilemma for counsel. It would require a law firm to abandon its client whenever the UST objected to its employment, even though that employment had the blessing of two orders of the bankruptcy court and a decision of the BAP. Affirmed.
Castro-Baez v. Reno/Immigration and Naturalization Service
Case No. 99-70484
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-DEPORTATION FOR STATE RAPE CONVICTION-AGGRAVATED FELONY
Castro-Baez, a native and citizen of Mexico, entered the United States in 1978 and has been a lawful permanent resident since 1989. In 1996, he was convicted of rape. Two years later the INS brought deportation proceedings. After a hearing Baez was ordered deported.
HELD: The U.S. Code provides that: any alien who is convicted of an aggravated felony at any time after admission is deportable. As used in that section, an "aggravated felony" includes rape. Although the term "rape " itself is not further defined by the INA, the term encompasses convictions under either federal or state law and qualifies as an aggravated felony for purposes of establishing an alien's deportability. Petition dismissed.
Ladha v. Immigration and Naturalization Service
Case No. 99-70772
U.S. Court of Appeals for the Ninth Circuit
ORDER-IMMIGRATION-DEPORTATION-CLAIM FOR ASYLUM-REQUIREMENT FOR CORROBORATING EVIDENCE OF PERSECUTION
Amendment to opinion filed on June 1, 2000, not affecting the judgment.
United States v. Aviles/Barrenchea/Cornejo/Perez
Case Nos. 97-10251/97-10289
U.S. Court of Appeals for the Ninth Circuit
ORDER
Amendment to opinion filed August 8, 1998 is amended at 170 F.3d, not affecting the opinion. Mandate recalled.
Wasserman's Archived Appellate Summaries
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