Wasserman's Appellate Summaries
July 17, 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.
McFetters v. Aplicon, Inc.
Case No. G021374
California Court of Appeal, Fourth District, Division Three
TORTS-CONSTRUCTIVE TERMINATION-DISCHARGE IN VIOLATION OF PUBLIC POLICY-PROCEDURE FOR GRANT OF JUDGMENT NOTWITHSTANDING THE VERDICT
McFetters sued his former employer, Amplicon, Inc. and its principal, Patrick Paddon for assault and battery, constructive termination, false imprisonment and intentional infliction of emotional distress. The trial court granted a nonsuit on all cause of action, except for assault and battery. The jury returned a substantial monetary verdict in favor of McFetters. On a motion for Judgment Notwithstanding the Verdict the trial court substantially reduced the judgment. The court also granted a conditional new trial on the ground of excessive damages, in the event the judgment notwithstanding the verdict failed to survive appeal.
HELD: To sustain a constructive termination action it must be shown that the conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee. The evidence in this case was more than sufficient for a jury to conclude that while McFetters showed a strong motivation to remain on the job to earn a livelihood and to serve his employer the continued hostility, combined with the departure of a supervisor-intermediaries, created a situation which no reasonable employee would have tolerated. To sustain the claim of wrongful discharge in violation of fundamental public policy, Turner must prove that his dismissal violated a policy that is: (1) fundamental, (2) beneficial for the public, and, (3) embodied in a statute or constitutional provision. The type of tactics, objected to by McFetters, encouraged by Amplicon was to induce unsuspecting customers into signing its leases would fall within the definition of unfair business practices and was a violation of statute. The Legislature has provided an exclusive remedy for a trial court to employ where some damages are properly awarded, but the amount is excessive. That is through a remittitur pursuant to Code of Civil Procedure, in which a plaintiff has the opportunity to consent to a lower amount, with the understanding the court will order a new trial if plaintiff refuses. Reversed as to all causes of action and to the grant of the JNOV. The superior court is directed to allow McFetters, within 10 days from issuance of the remittitur, to elect either to accept $870,000 as his entire judgment in this case or retry the entire matter before a different judge.
People v. Robles
Case No. S072243
Supreme Court of California
CRIMINAL-SEARCH AND SEIZURE-WARRANTLESS SEARCH OF GARAGE-COHABITANT OF RESIDENCE AND GARAGE UNDER UNKNOWN CONSENT TO PROBATION SEARCH CONDITION-EXPECTATION OF PRIVACY-INEVITABLE DISCOVERY
The victim's car was stolen. He saw Robles driving the car. When police arrived the car was gone. Robles was detained by police. One officer looked in garages associated with the nearby area where Robles lived. Through a tear in the garage door he saw the victim's vehicle. The officer then entered the garage without requesting consent from Robles. Robles' motion to suppress evidence as a result of a warrantless search and seizure by police was denied. Several days later the police learned that Robles brother, who shared the apartment, was subject to a probation search. The trial court denied Robles motion to suppress because the brother, with whom Robles lived, had agreed to submit his person and property to warrantless police searches and seizures as a condition of probation. It is undisputed that the officers involved were unaware of the brother’s probation condition when they obtained the challenged evidence. The Court of Appeal reversed.
HELD: Under California law, issues relating to the suppression of evidence derived from police searches and seizures must be reviewed under federal constitutional standards. The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures by police officers and other government officials. The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy in the place searched. Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. By entering the garage with no warrant and no awareness of the brother's advance consent to probation searches, the police violated Robles reasonable expectations of privacy. The inevitable discovery doctrine was found to be inapplicable under the facts. Affirmed the reversal by the Court of Appeal.
Snukal v. Flightways Manufacturing
Case No. S067271
Supreme Court of California
CIVIL-STATUTORY CONCLUSIVE PRESUMPTION-CERTAIN CORPORATE OFFICERS PRESUMED TO HAVE AUTHORITY TO BIND THE CORPORATION
Flightways leased real property from Snukal. The president of Flightways signed the lease. Snukal successfully sued in Municipal Court for breach of the lease. The Superior Court appellate panel affirmed. The Court of Appeal ordered the case transferred to itself and determined that Corporations Code, which precludes a corporation from challenging an agreement based upon lack of authority when the agreement has been executed on behalf of a corporation by specified corporate officers, was inapplicable to the lease agreement here in question. The matter was ordered remanded to the Superior Court.
HELD: The Court of Appeal erred in proceeding under the assumption that it was authorized selectively to resolve only a nondispositive issue regarding the applicability of a particular statute and then to remand the case to the appellate department of the superior court æ by issuing the remittitur to that court æ to decide the remaining issues presented by the appeal. On the merits, a statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption. The Corporations Code former section 833 established a rebuttable presumption that the executing officers possessed the authority to bind the corporation. The present statute provides a conclusive, rather than a merely rebuttable evidentiary presumption of authority to enter into the agreement on the part of the specified corporate officers. Reversed the Court of Appeal, and remanded to the Court of Appeal with directions to affirm the judgment of the municipal court in favor of plaintiff.
Coveau v. American Airlines
Case No. 99-10071
U.S. Court of Appeals for the Ninth Circuit
CIVIL-APPEAL-PROCEDURE-FAILURE OF TRIAL COURT TO DESIGNATE GROUNDS ON WHICH SUMMARY JUDGMENT GRANTED
Couveau brought an employment discrimination action against American Airlines under California's Fair Employment and Housing Act. American Airlines motion for summary judgment was granted summarily, without identifying which of the several grounds American's asserted it found persuasive. Nothing else in the record reveals the basis for the court's decision.
HELD: Appellate review is a particularly difficult process when there is nothing to review. A summary judgment order that fails to disclose the district court's reasons for the ruling runs contrary to the interest of judicial efficiency by compelling "the appellate court to scour the record in order to find evidence in support of the decision. When multiple grounds are presented by the movant and the reasons for the district court's decision are not otherwise clear from the record, it may vacate a summary judgment and remand for a statement of reasons. In this case this would only penalize the litigants further, because after having reviewed the record and briefs and having heard oral argument, the Court concluded that no valid ground for summary judgment exists. The court enumerated and considered all the grounds for the motion and found that none had merit, including a one-time, two-day delay in filing opposition papers. Reversed and remanded.
United States v. Albers/Freegard/Moran et al.
Case No. 99-10071
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-BASE PARACHUTE JUMPING-DISORDERLY CONDUCT-RISK TO PUBLIC
National Park Service rangers arrested Albers and eleven others for BASE parachute jumping in the Glen Canyon National Recreation Area. All were convicted of delivering and retrieving persons by parachute and disorderly conduct.
HELD: The Park Service regulation prohibits delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit. Technological improvements in the shape, maneuverability, and control of modern parachutes, including those used here, do not make them cease to be parachutes. The ram-air chutes used by the defendants are parachutes and are not aircraft subject to regulation by the FAA. Under the Code of Federal Regulations, a person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person creates or maintains a hazardous or physically offensive condition. The criminal law generally permits a finding of recklessness only when persons disregard a risk of harm of which they are aware. BASE jumping can create a risk of harm to the public and the Court deferred to the trial courts' evidentiary findings. The defendants deliberately disregarded a substantial and unjustifiable risk of creating a hazardous or physically offensive condition of which they were aware. Affirmed.
Andrews v. TRW, Inc.
Case No. 98-56624
U.S. Court of Appeals for the Ninth Circuit
OTHER-FAIR CREDIT REPORTING ACT-STATUTE OF LIMITATIONS-IDENTITY THEFT-RESTRICTION ON EXPERT TESTIMONY RELATING TO CREDIT REPORTING PROCEDURES
Andrea Andrews obtained the social security number and California driver's license number of Adelaide Andrews during her employment as a doctor's receptionist. Andrews applied for credit at three companies using her own name, but the social security number and birth date of Adelaide. TRW responded to the credit inquiries of the three companies by treating the applications as made by the Adelaide. Each of the credit applications applied for by the impostor was denied by the company getting the TRW report. Andrea used the social security number of the Adelaide in applying for television cable service. This account became delinquent and was referred to a collection agency. When Adelaide learned of the fraud she contacted TRW and requested deletion from her file of all reference to the Andrea's credit activities. TRW complied. Adelaide sued TRW under the Fair Credit Reporting Act, for not maintaining reasonable procedures to assure maximum possible accuracy and other asserted violations. Summary judgment was for TRW on several causes of action, based on the statute of limitations and no evidence of disregard of reasonable procedures. At trial the court disallowed expert testimony relating to whether TRW's procedures were not reasonable in assuring maximum possible accuracy. The verdict was for TRW.
HELD: The general federal rule is that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured. By this test none of the Plaintiff's injuries were stale when suit was brought. It was a job for a jury to decide whether identity theft has been common enough for it to be reasonable for a credit reporting agency to disclose credit information merely because a last name matches a social security number on file. Expert testimony on this subject was unreasonably restricted. Affirmed in part and reversed in part.
United States v. Clark
Case No. 99-30200
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INTERPRETATION OF PLEA AGREEMENT UNDER CONTRACT LAW PRINCIPLES-DUTY OF PROSECUTION TO DISCLOSE POSSIBLE OTHER CHARGES WHEN NEGOTIATING PLEA AGREEMENT
A year and a half before the charges in this case Clark had entered into a plea agreement relating to a series of post office robberies. This agreement provided that no other charges would be filed against Clark in connection with that investigation. Clark's pretrial motion to dismiss the new charges was denied. Clark was convicted of distribution of marijuana; theft of firearms moved in interstate commerce; theft of firearms from a federally licensed firearms dealer; possession of a stolen firearm which has moved in interstate commerce; and, being a felon in possession of a firearm. He was sentenced to 293 months in prison.
HELD: Plea agreements are contractual in nature and are measured by contract law standards. The plea agreement mentions no crimes or charges other than the three postal robberies to which Clark pleaded guilty. The term "this investigation" clearly and unambiguously refers to the investigation of the postal robberies, and does not encompass the firearm burglary. Even assuming "this investigation" is ambiguous, the extrinsic evidence shows that "this investigation" refers only to the postal robberies. During plea bargain negotiations, a prosecutor has a good faith duty to inform a defendant of possible future criminal charges only when a failure to inform rises to the level of a denial of due process. Here the firearm burglary and the postal robberies involved independent criminal transactions. The government here did not file an indictment in the firearm burglary until more than a year after executing the postal robberies plea agreement. Affirmed.
Columbia River People's Utility District v. Portland General Electric
Case No. 99-35411
U.S. Court of Appeals for the Ninth Circuit
OTHER-SHERMAN ANTI TRUST ACT-REQUIREMENT OF BUSINESS OR COMMERCIAL TRANSACTION
In 1961, the Oregon legislature established a regulatory framework that allowed utility providers to allocate customers and territories without violating antitrust laws. In 1963, PGE's application for the exclusive right to serve much of the territory it was serving was approved. PGE's territory included the Boise Cascade plant at issue in this case. Columbia River People's Utility District was organized as a People's Utility District under Oregon law in the 1940s. Its territory included much of the territory PGE had the exclusive right to serve, including the Boise Cascade plant. CRPUD was largely a shell organization until 1980, when voters approved a bond measure enabling it to purchase electric utility distribution facilities from PGE. CRPUD filed a condemnation action in state court to acquire some of PGE's facilities by eminent domain. PGE then agreed to sell CRPUD most of the sought-after utility property and territory, but PGE retained the servicing of the Boise Cascade plant. The agreement also stated that the acquisition price of the plant servicing Boise Cascade would be $31 million, whether by eminent domain or negotiation. Several years later, CRPUD realized that it could build facilities to serve the Boise Cascade plant for approximately $2 million, a price significantly less than the $31 million purchase price in the settlement agreement. CRPUD sued, alleging the damage clause violated the Sherman Anti Trust Act. The district court dismissed the case under the rationale that PGE's actions were cloaked with state-action immunity from antitrust violations.
HELD: A complaint for violation of the Sherman Antitrust Act, must allege sufficient facts to demonstrate: (1) the existence of a contract, combination, or conspiracy among two or more separate entities that (2) unreasonably restrains (3) interstate trade or commerce. Condemnation of property by a governmental entity is not a business or a commercial transaction. It is not competition. Affirmed.
Saffold v. Newland
Case No. 99-15541
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-STATUTE OF LIMITATIONS FOR HABEAS CORPUS PETITION-TOLLING OF LIMITATION PERIOD-MAILBOX RULE
Saffold is a state prisoner. His petition for habeas corpus was dismissed, on the ground that it was not filed within the one-year statute of limitations for a state prisoner filing a federal habeas petition.
HELD: Based on its recent decision in another case the Court held that the district court erred by failing to toll the federal statute of limitations for the entire period during which Saffold pursued state habeas relief. Additionally, the "mailbox" rule (when a prisoner delivers legal papers to prison authorities for transmission to court) for pro se prisoners applies to Saffold's petitions to the California court and the federal court for purposes of calculating tolling time under Antiterrorism and Effective Death Penalty Act. Whether and when Saffold delivered his petitions to prison authorities is unresolved. Reversed and remanded.
Portland General Electric Company v. U.S. Bank Trust
Case No. 99-35189
U.S. Court of Appeals for the Ninth Circuit
CIVIL-APPLICABLE LAW-PROVISION FOR APPRAISAL
Portland General Electric and the United States Bank Trust National Association were parties to a lease agreement under which they agreed that a qualified independent appraiser would be appointed to determine the fair market value of two turbine generators. Although the appraiser's valuation was to be considered final, the Trust was dissatisfied and challenged the appraisal on multiple grounds. In response, PGE sought a court order confirming the appraisal. The district court treated the appraisal decision as an arbitration award, analyzed the case under the Federal Arbitration Act and confirmed the appraisal.
HELD: Because the FAA neither defines arbitration nor spells out whether the term arbitration includes appraisal, state law is applicable. The contract at issue specifies Oregon law as controlling and sets out an appraisal procedure. Oregon courts treat appraisals under common law contract principles rather than under arbitration. Reversed and remanded.
Aleman v. Glickman
Case No. 98-16893
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-CLASSIFICATION FOR PURPOSES OF DISTRIBUTING WELFARE BENEFITS-RATIONAL PURPOSE TEST APPLICABLE
The Food Stamp Act established a state-administered, federal program to supplement the food purchasing power of low-income households. Eligibility for participation in the program is determined on a household rather than an individual basis, and the program is restricted to households with net incomes below the federal poverty level and certain other low income resource households. The Welfare Reform Act significantly restricted the eligibility of permanent resident aliens to receive food stamps. The Act provides that, subject to certain enumerated exceptions, an alien who is lawfully admitted for permanent residence is ineligible for the program. An exception applies to such alien, or whose spouse has worked 40 qualifying quarters of coverage as defined by the Social Security Act and such alien remains married, or the spouse is deceased. Five months after Aleman filed her complaint, the President signed into law the Agricultural Research, Extension & Education Reform Act of 1998, which restored food-stamp eligibility for disabled aliens lawfully residing in the United States. She seeks payment for food stamps denied before the Act. The district court held that cut off of benefits did not violate the equal protection component of the Due Process Clause of the Fifth Amendment and dismissed her complaint.
HELD: The standard applied to review an equal protection challenge to a classification provision for the distribution of benefits to aliens is the rational basis test. A classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity and must be upheld if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Congress could rationally enact the qualifying-quarters provision as a reward to a legal alien for his past work in this country. Affirmed.
Eisenger v. Federal Labor Relations Authority
Case No. 98-70866
U.S. Court of Appeals for the Ninth Circuit
EMPLOYMENT-GOVERNMENT-STANDING OF INDIVIDUAL TO SEEK CLARIFICATION OF REPRESENTATION
Eisinger was employed in the Fresno District Office of the SBA. He was part of a nationwide consolidated bargaining unit represented exclusively by AFGE. The FLRA is the agency in charge of overseeing labor-management relations in the federal government. When Eisinger was transferred from the district office to the smaller Fresno Commercial Loan Servicing Center he filed a petition with the FLRA requesting a determination that the employees of the Servicing Center, particularly its professional employees, were not subject to the master labor agreement. His petition was dismissed for lack of standing under the FLRA regulations.
HELD: The statute states that if a petition is filed with the Authority by any person seeking clarification of, or amendment to, a certification then in effect or a matter relating to representation; the Authority shall investigate the petition. A clarification of unit petition is a type of representation petition that is "appropriate where there is uncertainty about the status of an employee with respect to the bargaining unit or in cases where reorganization has altered the scope of the unit. The FLRA regulation contravenes the statute. Reversed.
Wasserman's Archived Appellate Summaries
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