Wasserman's Appellate Summaries
July 12, 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.
Catalano v. Superior Court/Camenson/Baker, Manock & Jensen
Case No. F034292
California Court of Appeal, Fifth District
CIVIL-PROCEDURE-SUMMARY ADJUDICATION MUST DISPOSE OF ENTIRE CAUSE OF ACTION OR CLAIM FOR PUNITIVE DAMAGES
The law firm of Baker, Manock & Jensen sued the Catalanos for attorney fees. The Catalanos cross complained for fraud and breach of fiduciary duty and sought punitive damages. BM&J motion for summary adjudication, on five issues on which punitive damages could be based, was granted, except for one issue relating to whether a failed limited partnership was explained to Sam and Darlene Catalano and they understood it.
HELD: The Code of Civil Procedure provides that a party may move for summary adjudication as to one or more causes of action within an action, one or more claims for damages, or that there is no merit to a claim for punitive damages, as specified in Section 3294 of the Civil Code: "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." Although a claim for punitive damages is specifically set forth as an area which may properly be the subject of summary adjudication, in keeping with the purposes of Code of Civil Procedure a grant of summary adjudication in this area must cover the entire claim. The purpose of the enactment of Code of Civil Procedure section was to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.The trial court, following the five separate factual contention format of BM&J’s motion for summary adjudication, rendered a decision which disposed of certain factual allegations without disposing of the entire claim for punitive damages. Such piecemeal adjudication of factual allegations supporting a claim for punitive damages is prohibited. If any one or more of the facts would support a claim for punitive damages, then summary adjudication is not available to eliminate from trial other facts relating to the claim for punitive damages. Mandate issued directing vacation of the order granting partial summary adjudication and directing entry an order denying summary adjudication with regard to punitive damages.
People v. Glee
Case No. B128359
California Court of Appeal, Second District, Division Five
CRIMINAL-SENTENCING-ASSAULT WITH FIREARM AS STRIKE-SENTENCE TO COUNTY JAIL CONVERTS OFFENSE TO MISDEMEANOR
Glee was convicted of burglary. His three prior felony offenses included one for assault with a deadly weapon. The proof of Glee’s prior assault conviction consisted of a transcript of the sentencing hearing, and several documents filed in that case, including an information, an amended information, two minute orders, a report of an indeterminate sentence or other sentence choice and a Department of Justice form entitled "Disposition of Arrest and Court Action. Glee pleaded guilty to assault with a firearm in return for the promise that his sentence would be a grant of probation, with a year in the county jail, with probation to terminate at the end of that year.
HELD: The People concede that the records were insufficient to show the assault conviction and urge remand for retrial on this issue. The determination of whether a prior conviction is a prior felony conviction for sentencing purposes shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. Under the Penal Code a felony is automatically converted to a misdemeanor after a judgment imposing a punishment other than imprisonment in the state prison. When the court suspended proceedings, granted summary probation, ordered appellant to serve one year in the county jail and directed that probation be terminated upon completion of the jail term, it automatically rendered the crime a misdemeanor. The judgment is modified to vacate the finding that Glee’s conviction for assault constitutes a strike and remand for resentencing.
People v. Superior COurt/Zamudio
Case No. S073031
Supreme Court of California
ORDER
Modification of opinion affecting a change in the judgment and remanded.
Robinson v. Solano County
Case No. 99-15225
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-FALSE ARREST-EXCESSIVE FORCE IN ARREST-GUN POINTED AT HEAD OF SUSPECT
Robinson lives on a five acre parcel where he raises cattle, ducks, turkeys, geese, and chickens. He saw two dogs attacking and killing his livestock. He shot both dogs. The neighbor, who owned the dogs called police and reported a man with a shotgun killing two dogs and standing in the road shouting. Six police cars arrived at Robinson's house. He walked out to surrender and the officers pointed pistols at him at close range, handcuffed him and put him in the back of a police vehicle. Thirty minutes later he was released. Robinson sued Solano County and police officers for false imprisonment, and the use of excessive force in arresting him. The district court granted summary judgment for the defendants on the state law claims and the magistrate judge granted a post-trial judgment to defendants on the federal excessive force claim, based on qualified immunity.
HELD: Qualified immunity shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The right at issue in this case was sufficiently clear at the time of the alleged conduct. Robinson had a right to be free from excessive force. The law is clear in this circuit that holding a gun to a suspect's head may constitute excessive force under S 1983. Robinson could not be considered to be a flight risk; he neither resisted arrest nor attempted to evade arrest. On the contrary, he walked up to the police voluntarily in order to tell his story. The fact that Robinson was completely surrounded by the police greatly diminished both the potential threat he may have posed as well as his flight risk. Relating to the dismissal of the state claims, California holds counties liable for acts of their employees under the doctrine of respondeat superior, and grants immunity to counties only where the public employee would also be immune from liability. Reversed as the state and federal law claims and remanded for retrial so that a jury may decide whether the use of force was reasonable.
Solis v. Garcia
Case No. 98-56219
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INSTRUCTIONS ON AIDING AND ABETTING SECOND DEGREE MURDER-FAILURE TO GIVE INSTRUCTION ON PREDICATE CRIME
Solis was the driver of a vehicle involved in a drive by shooting in San Diego. Solis was convicted in California State court of second-degree murder and was sentenced to sixteen years to life in prison. The jury was only instructed on first degree murder and second degree murder under the doctrine of natural and probable consequences. Instructions on lesser included crimes were refused. Solis petition for a writ of habeas corpus was denied. The district court granted Solis a Certificate Of Appealability for a single question: whether the trial court's failure to instruct the jury on the elements of the predicate offense giving rise to an aiding and abetting offense. violated Solis' constitutional right to have a jury find upon proof beyond reasonable doubt every fact necessary for a conviction on second degree murder.
HELD: In a habeas corpus review the state court's factual findings are entitled to a presumption of correctness unless the petitioner rebuts the presumption with clear and convincing evidence. The district court's factual findings in support of the denial of a Petition for Writ of Habeas Corpus must be upheld unless clearly erroneous. The instructions did not describe the elements of the target crime, which Solis allegedly aided and abetted but otherwise were admittedly correct. In such instances, constitutional error is presumed, and the court must determine whether that error was harmless. Comparing the elements of Solis' alleged crime to the instructions given at Solis' trial, it is clear that the instructions were sufficient. California law does not require that jurors unanimously agree upon the basis for a defendant's guilt, when alternate legally valid theories exist, in reaching an unanimous guilty verdict. Affirmed.
Favish v. Office of Independent Counsel
Case No. 98-55594
U.S. Court of Appeals for the Ninth Circuit
OTHER-FREEDOM OF INFORMATION ACT-BALANCE OF PRIVACY WITH PUBLIC PURPOSE FOR RELEASE-IN CAMERA REVIEW OF PHOTOGRAPHS REQUIRED
Vincent W. Foster, Jr., the Deputy Counsel to the President was found dead in Fort Marcy Park. His death was extensively investigated. Favish is a lawyer skeptical of the of the investigations. He filed his request under the Freedom Of Information Act seeking 150 photocopies of photographs compiled for law enforcement purposes. His request was denied, under the claim that the photos were exempt as records whose release could reasonably be expected to interfere with enforcement proceedings and for personal privacy. After Favish filed suit most of the requested photos were given him. Summary judgment was for the OIC, on privacy grounds.
HELD: The statutory command coupled with the statutory exemption requires balancing of the personal privacy expected by a reasonable person to be invaded by the production of the records against the public purpose served by release. Favish's request focuses on how the OIC conducted its investigation of Foster's death. His request is in complete conformity with the statutory purpose that the public know what its government is up to. The Court held that the personal privacy in the statutory exemption extends to the memory of the deceased held by those tied closely to the deceased by blood or love and that the expectable invasion of their privacy caused by the release of records made for law enforcement must be balanced against the public purpose to be served by disclosure. An in camera review should have been made by the district court of the photos in dispute. The case was remanded to the district court to examine the photos in camera and to balance the effect of their release on the privacy of the Foster family against the public benefit to be obtained by their release.
United States v. Estrada-Macias
Case No. 97-10115
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INSUFFICIENCY OF THE EVIDENCE-MERE KNOWLEDGE OF DRUG MANUFACTURE NOT SUFFICIENT TO CONVICT
Estrada-Macias was convicted of conspiracy to manufacture methamphetamine.
HELD: There is no doubt in this case that there was a conspiracy to manufacture methamphetamine, and that Estrada lived in the presence of it. The only question, and it is a close one, is whether there was enough evidence to permit the jury to find that he participated in the conspiracy. The evidence is sufficient to raise a strong inference that Estrada must have known that several individuals living around him were engaged in a conspiracy to manufacture methamphetamine. That inference is not enough to permit conviction, which requires certainty beyond a reasonable doubt. Reversed.
Birth Hope Adoption Agency v. Arizona Health Care Cost Containment
Case No. 99-16057
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-COMMERCE CLAUSE-CHARGE TO OUT OF STATE RESIDENTS WHO ADOPT CHILDREN IN ARIZONA
Birth Hope Adoption Agency, Inc., is an adoption and child placement agency licensed by the State of Arizona. It brought this action seeking a declaration that the Arizona statute, which requires out-of-state persons who adopt children from Arizona to reimburse the State of Arizona for the full cost of prenatal care and delivery of the adopted child when such costs have been paid by the Arizona Health Care Cost Containment System, violates the Commerce Clause. Summary judgment was for AHCCCS.
HELD: The Interstate Compact on the Placement of Children, which has been adopted by all 50 states, governs placement of children in adoptive homes among the signatory states. The first step in evaluating state regulatory measures under the dormant Commerce Clause is to determine whether it regulates evenhandedly with only incidental effects on interstate commerce, or discriminates against interstate commerce. Because the Arizona statute is discriminatory the virtually per se rule of invalidity provides the proper legal standard. The statute must be invalidated unless the State can show that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. The state does not meet the first condition necessary for a valid compensatory tax. Reversed and remanded, with directions to enter judgment for Birth Hope.
Devereaux v. Perez/Abbey/Et al.
Case No. 97-35781
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-QUALIFIED IMMUNITY-POLICE METHODS OF SECURING TESTIMONY FROM WITNESSES
Devereaux and his former wife were licensed foster parents caring for young girls. After his divorce, Devereaux managed the foster home alone. Department of Health and Human Services suspected him of abusing Devereaux had molested her. The girl later was interviewed by a DHHS agent, who was told that she was pressured into setting up Devereaux and he had not molested her. When he agent reported this he was arrested for tampering with a witness. The case escalated into charges and recantations by a number of the girls. All charges were eventually dropped as part of a plea bargain where, in exchange for a dismissal of all the felony charges pending against him, Devereaux pled guilty to one count of rendering criminal assistance and one count of fourth degree assault for having spanked a girl. Devereaux then filed a civil rights action. Summary judgment was for the individual defendants.
HELD: Individuals may maintain a civil rights action when the government deprives them of any rights, privileges, or immunities guaranteed by both the United States Constitution and federal laws. Regardless of whether a constitutional violation occurs, a peace officer should prevail if the right asserted by the plaintiff was not clearly established or the officer could have reasonably believed that his particular conduct was lawful. The Fourteenth Amendment does not protect against all deprivations of liberty, only against deprivations of liberty accomplished without due process of law. Devereaux fails to raise a genuine issue of material fact or law regarding the interview techniques employed by the Individual Defendants. Devereaux simply contends that had the Individual Defendants implemented different interview techniques he would not have been charged at all. Affirmed.
MNBA America v. Locke, as Trustee/In Re: Greene
Case No. 98-16539
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-TRANSFER OF PROPERTY WITHIN 90 DAYS OF FILING OF THE BANKRUPTCY PETITION-COUNTING BACKWARDS
The Greenes paid MBNA America $21,000 by check. The check cleared the Greenes' bank on March 8, 1996, which was a Friday. On June 7, 1996, the Greenes filed a petition for relief under Chapter 7 of the Bankruptcy Code. Jeffry G. Locke, trustee of the Greenes' bankruptcy estate filed an adverse proceeding seeking to recover the Greenes' payment to MBNA as a preferential transfer capable of being avoided. Summary judgment was for MBNA, because the transfer was made more than 90 days before the filing of the bankruptcy petition. The District Court computed the 90 day period by counting backwards from the date the petition was filed and reversed.
HELD: In computing any period of time prescribed the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday. The transfer sought to be avoided by the Trustee was made on March 8, 1996, ninety-one days before the petition in the Greenes' case was filed. It is not avoidable as a preferential transfer.
Wasserman's Archived Appellate Summaries
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