Wasserman's Appellate Summaries
July 6, 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.
People v. Jennings
Case No. A084322
California Court of Appeal, Fourth District, Division Three
(Certified for publication with the exception of part V.)
CRIMINAL-EVIDENCE OF PRIOR ACTS OF DOMESTIC VIOLENCE-EQUAL PROTECTION-SUA SPONTE LIMITING INSTRUCTION
Jennings was convicted of felony assault and aggravated assault by means of force likely to produce great bodily injury, as well as the two misdemeanors of dissuading a victim by force or threat and making threatening telephone calls. The acts were related to act of domestic violence. Evidence of three prior incidents of domestic violence were admitted at the trial.
HELD: The contention that the statute allowing admission of evidence of prior acts of domestic violence violates due process has been repeatedly rejected by the courts. The Court then proceeded to reject Jennings equal protection argument. The statute treats all defendants charged with domestic violence equally; the only distinction it makes is between such domestic violence defendants and defendants accused of other crimes. Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same. A trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under the discretionary admission statute depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. There was no abuse of discretion in admitting the prior acts of domestic violence. The trial court offered to review an instruction regarding the prior domestic violence offenses if one were proposed. No such instruction was ever offered or proposed by either the prosecution or the defense. A trial court generally has no sua sponte duty to give a limiting instruction. Affirmed.
Mainbog v. MediaOne of Los Angeles, Inc.
Case No. B132198
California Court of Appeal, econd District, Division Three
OTHER-STATUTORY LIMITATION ON LATE FEES THAT MAY BE CHARGED BY A CABLE TELEVISION OPERATOR
MediaOne provides cable television service to customers in Los Angeles under a franchise from the city. Manibog is a cable television subscriber and Los Angeles resident. Under the franchise agreement and pursuant to state and federal law MediaOne pays the city a franchise fee equal to 5 percent of its gross revenue. MediaOne advised Mainbog that he would be charged a late fee of $4.99 if his monthly payment was not received in 14 days. Mainbog sued. Summary judgment was for MediaOne.
HELD: The statute provides that a cable television operator may charge customers a delinquency fee of no more than $4.75. It states that a delinquency fee may exceed $4.75 only if the Federal Communications Commission expressly requires late fees to be fully included when setting benchmark rates, an exception that is inapplicable here. The statue prohibits a cable television operator from charging a delinquency fee in excess of $4.75, irrespective of whether the cable television operator designates part of that sum a delinquency fee and part a franchise fee. It does not prevent a cable television operator from passing through franchise fees provided that the total fee imposed upon the customer’s delinquency does not exceed $4.75. Reversed and remanded.
Californians For Scientific Integrity v. The Regents of the University of California
Case No. C028522
California Court of Appeal, Third District
CONSTITUTIONAL-FIRST AMENDMENT-POLITICAL ADVOCACY BY PUBLIC AGENCY
Plaintiffs sued the University, alleging that it had improperly permitted a professor to use public funds and resources to advance anti-smoking efforts. The trial court sustained the general demurrer of the University.
HELD: In the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign. An agency may expend funds to disseminate nonpartisan information relating to the election issues. The Legislature selected the University of California to administer the Cigarette and Tobacco Products Surtax Research Program to support research into tobacco-related disease. Advocacy on these issues, the activities challenged by plaintiff, are well within the parameters of this statutory mandate to reduce tobacco-related disease and promote a smoke-free environment. The University anti-smoking advocacy efforts do not violate the First Amendment because plaintiffs do not agree with the purpose of the program. Affirmed.
Fraley v. Allstate Insurance Company
Case No. D032817
California Court of Appeal, Fourth District, Division One
INSURANCE-INTERPRETATION OF CONDITIONS OF POLICY-POLICY TIME LIMIT TO MAKE REPAIRS
The Fraleys were insured by Allstate. There home was damaged by a fire. Allstate paid the Fraleys $200,000 for the repairs and advised the Fraleys they were entitled to additional benefits under the policy if they actually repaired or replaced their home. The Fraleys requested an appraisal. After some delays in setting a date, the appraisers set the actual cash value at $200,000 and the replacement cost at $364,500. Allstate then advised the Fraleys that the policy provided that they had 180 days following payment of the actual cash value of the property to repair or replace their home. However, because the 180-day period had already expired, Allstate offered to stipulate that the time would run from the service of the appraisal award. The Fraleys were not able to complete the repairs in the 180 day period. Allstate paid the Fraleys the difference between the $200.000 previously paid and the appraiser award. The Fraleys sued. Summary judgment was for Allstate.
HELD: Read as a whole, unambiguously required the Fraleys to comply with the 180 day limitation. Their claim was thus adjusted under the part of the policy, which contains the 180-day limitation. The Fraleys' claim that the $200,000 was a partial payment of replacement cost is without merit. There was no misrepresentation of the terms of the policy by Allstate. Affirmed.
Cooper v. Westbrook Torrey Hills, LP
Case No. D033909
California Court of Appeal, Fourth District, Division One
(The introductory paragraph, Factual and Procedural Background, Discussion I and Conclusion are certified for publication.)
REAL PROPERTY-REQUIREMENT FOR CONTRACTOR'S LICENSE TO RECOVER UNDER CONTRACT FOR WORK OF IMPROVEMENT
Cooper and Westbrook owned adjacent parcels of land they wished to develop. They entered into an Agreement Among Developers with the city of San Diego for pay for infrastructure improvements. Westbrook advanced the cost of improvement for the Cooper property and took a promissory note secured by a deed of trust on the Cooper property and undertook supervision of the work. Cooper stopped making payments to Westbrook when he found out that Westbrook did not have a contractor's license. Westbrook recorded a Notice of Default and Election to Sell Under the Deed of Trust. Cooper filed suit. Summary judgment was for Westbrook. Cooper appealed and posted a cash bond. The judgment was reversed on appeal, on the ground a contractor's license was required for the work undertaken by Westbrook. Cooper's motion for expenses in posting the bond was denied.
HELD: The Rules of Court requires that reasonable expenses necessary to acquire a bond are to be awarded to the prevailing party. The Code of Civil Procedure explicitly requires that a deposit given in place of a bond must be treated in the same manner as a bond. Contrary to the trial court's ruling the reasonable expense incurred in making a deposit must be awarded a prevailing party such as Cooper. Reversed.
Ball v. GTE Mobilnet of California
Case No. C031783
California Court of Appeal, Third District
ORDER
Modification of the opinion filed in this case on June 8, 2000. Not affecting the judgment.
Carley Gracie/Gracie United States v. Rorian Gracie/Brajitsu
Case Nos. 98-15672/98-16386
U.S. Court of Appeals for the Ninth Circuit
OTHER-SERVICE MARK-DAMAGES-AWARD OF ATTORNEY FEES-CANCELLATION OF REGISTRATION OF TRADE NAME
Carley came to the United States from Brazil in the early 1970s and began teaching jiu-jitsu in the eastern United States as early as 1974 and in California sometime after he arrived in the state in 1979. Carley has used the name "Gracie" in identifying his jiu-jitsu instruction business. In the late 1970s, Rorion came to the United States and began teaching the "Gracie method" of jiu-jitsu in Southern California. Rorion applied for and obtained a California registration for the Triangle Design logo and obtained federal registrations for the "Gracie Jiu-Jitsu" service mark and the Triangle Design logo in 1989. Carley sued Rorion, challenging the validity of the term "Gracie Jiu-Jitsu" and the Triangle Design logo as service marks. Judgment was for Rorion and in part for Carley.
HELD: Once the district court gave the jury the power to determine the validity of Rorion Gracie's federal service mark, refusing to cancel the registration for "Gracie Jiu-Jitsu" after the jury declared it to be incapable of serving as a mark was inconsistent with the court's duty to give effect to a jury verdict, and as such erroneous. Read as a whole, then, the jury instructions permitted the jury to find trademark infringement based on confusing similarity of the logos at issue; a finding of exact copying was not required. The jury's verdict of infringement was thus supported by the evidence, which included Carley's and Rorion's highly similar logos for their competing jiu-jitsu instruction businesses. Damages were properly awarded to Rorion. The Lanham Act provision upon which Rorion's trademark infringement claim rested, does not require actual consumer confusion for recovery of profits. Rather, by its terms it requires only a likelihood of confusion combined with willful infringement. The Lanham Act permits an award of attorneys' fees to the prevailing party in "exceptional cases." "While the term `exceptional' is not defined in the statute, generally a trademark case is exceptional for purposes of an award of attorneys' fees when the infringement is malicious, fraudulent, deliberate or willful." The jury found the infringement was willful. The amount of attorney fees awarded was 6 times the damages awarded and should be reviewed on remand. Affirmed in part, reversed in part and remanded.
United States v. Hursh
Case No. 99-50504
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EXCUSE OF JUROR FOR PREDETERMINATION OF CASE-BRIEF ABSENCE OF JUROR WHEN JURY RECONVENED-SUFFICIENCY EVIDENCE-EVIDENCE OF PRIOR FELONY-SENTENCING-DOWNWARD ADJUSTMENT
Hursh was convicted of importation of marijuana and for possession of marijuana with intent to distribute. At his trial one of the jurors sent a note to the judge indicating that he wanted to talk to the judge alone about a question of law even before the jury was instructed. Hursh's motion for a mistrial was denied and the juror not replaced. The trial judge advised the juror by note that after the instructions he could ask questions if he still had any. During deliberations one juror was not present when the jury reconvened and was not located for 10 minutes. Hursh's motion for acquittal was denied.
HELD: To hold that the mere existence of any preconceived notion as to guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a juror's impartiality, would be to establish an impossible standard. The juror who sent the note was properly allowed to remain on the jury. The late of arrival of a juror did not constitute deliberations by the other 11 jurors who merely reviewed their notes in the twelfth juror's 10 minute absence. The evidence was sufficient to convict Hursh. Mere possession of a substantial quantity of narcotics is sufficient evidence to support a finding that a defendant knowingly possessed the narcotics. Hursh was the driver and sole occupant of a car whose gas tank contained 59.3 pounds of marijuana, which is a "substantial quantity of narcotics." The jury could properly infer that Hursh knew about the drugs. Evidence of Hursh's prior felony convictions for possession of heroin was admissible for purposes of attacking his credibility. The prejudicial effect of the evidence was outweighed by its probative value. The conviction was sanitized to omit reference to the specific offense for which Hursh had previously been convicted. There was no evidence that Hursh's role in the crimes for which he was convicted was minimal or minor and he was not entitled to a downward adjustment. Affirmed.
Green v. City of Tuscon
Case No. 99-15625
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-ABSTENTION BY FEDERAL COURT-ONGOING STATE COURT PROCEEDINGS
An Arizona statute provides that a territory within six miles of an incorporated city or town having a population of five thousand or more cannot be incorporated without the consent of the city or town. In 1997, the Arizona legislature passed a two-year suspension of the statute for Pima County only. The City of Tucson, which is in Pima County, promptly filed an action in state court against the State of Arizona asserting the statute was unconstitutional under Arizona law. The Arizona Court of Appeals declared the suspension statute was unconstitutional and remanded to the state court. Plaintiffs then filed this action in district court asserting the statute violated the equal protection clause and due process clause of the Fourteenth Amendment. The district court dismissed, on the grounds that the important state questions required resolution in state court.
HELD: Abstention is required if the state proceedings are (1) ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. The plaintiffs had an adequate opportunity to intervene in the state proceedings to have their federal claims heard. Affirmed.
McCarthy, Johnson & Miller v. North Bay Plumbing/Pettit
Case No. 99-15413
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-AUTOMATIC STAY UPON FILING PETITION UNDER BANKRUPTCY CODE-REQUIREMENT FOR PROPERTY INTEREST SUBJECT TO STAY
Pettit is the owner of North Bay Plumbing. Various Union trust funds sued and obtained a judgment against Pettit and North Bay. Execution of the judgment was stayed upon payment of $700,000 into the district court's registry fund. The state court reversed the judgment and remanded. On retrial in the district court there was a judgment for the Union in the amount of $1.8 million. The district court signed an order releasing the $700,000. Pettit and North Bay filed for reorganization under the Bankruptcy Code before a check could be issued for payment to the Union. The next day, before the district court was advised of the bankruptcy filing the check was issued. On motion by the Union the Bankruptcy Court held that the deposit of the check by the Union was a violation of the automatic stay of the bankruptcy filing. The district court reversed.
HELD: The automatic stay of proceedings to obtain property of a bankrupt is self-executing, effective upon the filing of the bankruptcy petition. When the district court ruled against Pettit and signed the order releasing the registry funds under California's definition of "property," as well as under any general theory of ownership, the registry funds no longer belonged to Pettit. Affirmed the district court reversal of the bankruptcy court decision.
Liebowitz v. County of Orange
Case No. 99-55503
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-NON DISCHARGEABLE DEBT IN THE NATURE OF SUPPORT OWED TO A STATE OR MUNICIPALITY
Leibowitz and his wife Sondra separated in early 1991. In February 1991, Sondra applied to Orange County for Aid to Families with Dependent Children. As a condition for receiving AFDC, she was required under state and federal law to assign to the County any "accrued" rights to support from the children's father. In 1992, the County obtained a judgment against Leibowitz ordering him to pay $372 per month in child support and to reimburse the County $5,580 for AFDC payments made to Sondra. Leibowitz reached an agreement with the County on a monthly repayment plan. In 1996, Leibowitz filed a Chapter 7 bankruptcy petition, listing the County as a creditor. Leibowitz was granted a discharge of all dischargeable debts, Liebowitz filed a complaint seeking to determine whether his reimbursement debt to the County was dischargeable. Summary judgment was for the County and the BAP affirmed.
HELD: There are certain types of Debts that Congress has declared to be non-Dischargeable in a bankruptcy proceeding. The Welfare Reform Act of 1996 made several changes to the law of discharge. One change provided that debts owed under State law to a State or municipality that is in the nature of support, and enforceable under the Child Support Enforcement Act of the Social Security Act, are not dischargeable. Affirmed.
United States v. Juvenile
Case No. 98-50368
U.S. Court of Appeals for the Ninth Circuit
ORDER
The opinion filed December 15, 1999 was withdrawn.
Wasserman's Archived Appellate Summaries
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