Wasserman's Appellate Summaries
July 14, 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.
Dunkin v. Boskey
Case No. A087866
California Court of Appeal, First District, Division One
FAMILY LAW-ENFORCEABILITY OF CONTRACT OF UNMARRIED PERSONS TO CUSTODY OF CHILD CONCEIVED BY THIRD PERSON ARTIFICIAL INSEMINATION-UNJUST ENRICHMENT
Dunkin was sterile. He contracted with the Pacific Fertility Center for artificial insemination of his cohabiting female partner, Boskey. The parties entered into an agreement, provided by Pacific fertility, which provided that Dunkin would be considered the parent of the child for all purposes, without the necessity of further action. A child was born and Dunkin was named as the "Father of Child" on the birth certificate. After the birth, Dunkin cared for her on a daily basis and held out the child as his natural child. The parties never married, and he did not adopt the child. Two years later they terminated their relationship. Boskey moved to Wisconsin and denied Dunkin visitation or custody of the child. Dunkin's previous suit for custody and to determine visitation rights was dismissed for lack of standing. Dunkin's present suit in contract was dismissed for lack of standing.
HELD: Under the doctrine of res judicata, a prior judgment operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action. Unless the issue or cause of action in the two actions is identical, the first judgment does not stand as a bar to the second suit. The present action for breach of written contract does not assert the same primary right as the prior action in family law court to establish paternity. Under the Uniform Paternity Act, the ‘parent and child relationship’ is defined as ‘the legal relationship existing between a child and the child’s natural or adoptive parents.' While Dunkin has alleged the elements of reception of the child into his home and open acknowledgment of her as his daughter, he cannot become a presumed father under the statute absent any biological link to the child. There is nothing in the agreement between the parties that so offends public policy as to require us to find it illegal or invalid. The recognized power of the court to act to protect the best interests of the child does not relieve Boskey of the obligations into which she has entered with Dunkin. The Court concluded that recovery of special damages for readily ascertainable economic loss under an unjust enrichment theory was Dunkin's remedy. Reversed and remanded.
City and County of San Francisco v. Tijerino
Case No. A083665
California Court of Appeal, First District, Division One
FAMILY LAW-PROCEDURE-MOTION TO RECONSIDER-SETTING ASIDE STIPULATION OF PATERNITY BASED ON BLOOD TEST
Tijerino signed a written stipulation that he was the father of an unborn child. When the child was nearly a year old, blood tests excluded Tijerino from paternity. His motion to reconsider the judgment was granted.
HELD: The statue providing for reconsideration of a court order expressly requires a showing of new or different facts, circumstances, or law in order to permit an order granting reconsideration. Tijerino's showing on the motion for reconsideration did not satisfy the requirements of Code of Civil Procedure section 1008 as a matter of law. The requirements of this section are jurisdictional. Any evidence of an order for payment for the blood testing was tangential to the issue of whether the order establishing paternity could be set aside based upon the accuracy of the test results. The question of whether the court itself ordered the tests was raised and previously rejected by the court. The new evidence of payment was barely mentioned at the hearing of the motion for reconsideration and the reliability of the tests was not disputed. It was obvious at the time of the second hearing that the newly published case raised by Tijerino was not final and could not be cited as law. No other grounds for the revocation of the original order appears in the record. Genetic testing is not sufficient to set aside an otherwise valid paternity judgment in the absence of extrinsic fraud. Reversed.
Toucher v. City of Santa Ana
Case No. 97-55628
U.S. Court of Appeals for the Ninth Circuit
GOVERNMENT-MUNICIPAL REGULATION OF TOW TRUCK BUSINESS-FEDERAL PREEMPTION-INTERVENTION REQUIREMENTS
Tocher is the operator of a tow truck business. The City of Santa Ana enacted a set of municipal ordinances that regulated automobile towing operations and tow trucks. Tocher received several citations for violation of the ordinances and filed suit. The district court found federal law preempted the ordinances and permanently enjoining the City of Santa Ana from enforcing any law related to the price, route, or services of towing businesses. After judgment was entered the Santa Ana Police Towing Association's motion to intervene was denied.
HELD: An applicant can intervene as of right under the Federal Rules of Civil Procedure if: (1) the motion to intervene is timely filed; (2) the applicant has a significantly protectable interest that is related to the subject of the action; (3) the applicant is situated so that the disposition of the action may, as a practical matter, impair or impede its ability to protect that interest; and, (4) the applicant's interests are inadequately represented by the parties to the action. A post-judgment motion to intervene is generally considered timely if it is filed before the time for filing an appeal has expired. The motion was timely, since the time for filing an appeal had not yet expired, it satisfied all the conditions for intervention and Tocher was not prejudiced by SAPTA's post-judgment motion. On the substantive issues; federal preemption occurs when: (1) Congress enacts a statute that explicitly preempts state law; (2) state law actually conflicts with federal law; or, (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field. Under the applicable federal statute a state or local law is preempted if: (1) the law is related to a price, route, or service of any motor carrier with respect to the transportation of property; and, (2) the law is not saved from preemption by one of the regulatory exceptions. The enforcement of the ordinances enjoined by the district court have more than an indirect, tenuous, or remote effect on the prices, routes, or services of a towing company. Affirmed the injunction and reversed the denial of the motion to intervene.
Big Horn v. Adams, Tax Commissioner of the Crow Tribe of Indians
Case No. 99-35799
U.S. Court of Appeals for the Ninth Circuit
OTHER-JURISDICTION-REGULATORY AUTHORITY OF INDIAN TRIBES OVER NON TRIBAL MEMBERS
The Crow Tribe enacted a provision which assessed a 3% tax on the full fair market value of all "utility property" located on tribal or trust lands. Big Horn Electric Cooperative has utility property which is within the Crow reservation and has an easements for its transmission and distribution lines. Big Horn filed an action for injunctive and declaratory relief, contending that the Tribe exceeded its regulatory jurisdiction in enacting an advalorem tax on its property. Summary judgment was for Big Horn.
HELD: Jurisdiction over nontribal members' conduct on non-Indian fee land is extremely limited. Big Horn's easement rights-of-way are the equivalent of non-Indian fee land for the purpose of considering the limits of the Tribe's regulatory jurisdiction. The state of Montana's main rule is that absent a treaty or a federal law, a tribe has no civil regulatory authority over tribal non-members. The two exceptions are: (1) the tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases or other arrangements"; and, (2) a tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Big Horn's voluntary provision of electrical services on the Reservation did create a consensual relationship. An ad valorem tax on the value of Big Horn's utility property is not a tax on the activities of a non-member, but is instead a tax on the value of property owned by a nonmember, a tax that is not included within Montana's first exception. The enactment also fails the second requirement. Affirmed in part and reversed in part.
United States v. Barrios-Gutierrez
Case No. 99-10148
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-POST GUILTY PLEA MOTION FOR ENHANCEMENT-REQUIREMENT THAT COURT INFORM OF MAXIMUM POSSIBLE SENTENCE
Barrios-Gutierrez pleaded guilty to illegal entry after deportation. He was advised that the sentence could be two years, but that the prosecution may ask for enhancement of the sentence and he could be resentenced up to 20 years. After Gutierrez's plea the government announced its intention to seek the enhancement. Gutierrez was not offered the chance to withdraw his plea. At the sentencing hearing he was sentenced to a term of 57 months imprisonment.
HELD: The Federal Rule of Criminal Procedure requires that the court address the defendant before accepting a guilty plea and determine that the defendant understands the maximum possible penalty provided by law. In this case, the district court never unambiguously stated the actual maximum sentence which Gutierrez faced. Reversed.
Kozulin/Larina v. Immigration and Naturalization Service
Case No. 99-70162
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-REQUISITES FOR ASYLUM-WITHHOLDING OF DEPORTATION
Kozulin, a native and citizen of Russia, entered the United States in April of 1991 and applied for asylum. He presented evidence at his hearing that he was beat up by three unknown men because he had signed a letter stating that the captain of his merchant vessel was stealing supplies. The Board of Immigration Appeals denied Kozulin's application for asylum and withholding of deportation.
HELD: The Court found that it had jurisdiction, since the removal proceedings were pending prior to April 1, 1997. A person is eligible for a discretionary grant of asylum if he is a "refugee," i.e., if he is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The Court found that substantial evidence supported the conclusion that Kozulin failed to prove: (1) that any mistreatment he suffered was on account of his political opinion; or, (2) that upon his return to Russia he risks disproportionately severe punishment for his illegal departure to the United States. Petition denied.
DiSalvo v. DiSalvo/In Re: DiSalvo
Case No. 98-56166
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-RES JUDICATA-CLAIM PRECLUSION-SEPARATENESS OF DEBTOR IN CHAPTER 11 PROCEEDING AND PERSONALLY-MOOTNESS
A state court Judgment of Dissolution included an equalizing award of $100,000 in the ex wife's, Jodi's favor, evidenced note and secured by a trust deed on the spouses' former marital residence. Salvotore did not pay on the note and Jodi made numerous collection, excepting noticing a default and sale under the trust deed. Salvatore filed for reorganization under the Bankruptcy Code. Jodi's adverse proceeding to determine nondischargeability was dismissed as a sanction, but the BAP reversed. He then initiated an adverse proceeding for abuse of process and a tortious violation of the California statutory one-action rule that requires a creditor whose debt is secured by a real property trust deed to proceed first against the security before seeking to enforce the debt against the debtor personally. The Bankruptcy Court dismissed both of Salvatore's claims as barred on claim preclusion grounds (using the older vocabulary of res judicata). The BAP reversed that ruling in part, that Salvatore's abuse-of-process claim remained viable but that his claim grounded on the one action rule was not sustainable in substantive terms.
HELD: In the Chapter 11 context a debtor and debtor-in-possession are not to be treated as separate legal entities for the purpose of application of claim preclusion claims. In a liquidation proceeding, only the trustee has standing to prosecute or defend a claim belonging to the estate. Under reorganization the debtor has express authority to sue and be sued. The Court also found that the BAP's reversal of the dismissal of Jodi's $100,000 claim was moot, since Salvatore's Chapter 11 plan had been confirmed and fully executed. Affirmed the BAP reversal of the dismissal of the $100,000 claim by Jodi.
Bass v. St. Paul Fire/First Pacific Networks
Case No. 97-15127
U.S. Court of Appeals for the Ninth Circuit
CIVIL-SUPERSEDEAS BOND ISSUED RELATING TO APPEAL OF STATE CLAIMS-FEDERAL RULES APPLY TO THE BOND-ATTORNEY FEES NOT AWARDED WHEN BOND ISSUED UNDER FEDERAL RULES
Bass, now deceased, originally filed an action in state court against First Pacific Networks alleging in state claims and a federal RICO cause of action that he was entitled to 425,307 shares of FPN stock. FPN removed the action to federal court. The district court dismissed the federal RICO cause of action, but retained supplemental jurisdiction over the remaining state law claims. The district court entered an interlocutory judgment, which determined that FPN stock had been validly issued to Bass. As a condition of granting stay pending appeal, the district court ordered FPN to post a supersedeas bond in the amount of the value of the stock at the time of the stay order. FPN posted a bond issued by St. Paul Fire & Marine Insurance Co. The parties then reached a settlement under which the subject stock was sold and the proceeds paid to the estate of Arthur Bass. The executors of his estate then filed an action against the supersedeas bond and secured judgment for the amount reflecting the difference between the market value of the stock on the date of the district court stay order and the proceeds of the sale of the stock pursuant to the parties' settlement agreement. The district court then denied the Estate's motion for attorney fees.
HELD: The federal rules, under which the bond in the instant appeal was posted, does not provide for the recovery of attorney's fees, and both rules are silent on recovery of costs or damages. Because the bond was issued pursuant to the Federal Rules state rules do not apply. Only a federal question was involved, and attorney's fees are not recoverable under federal case law. Affirmed.
Wasserman's Archived Appellate Summaries
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