Wasserman's Appellate Summaries
July 18, 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.
California Correctional Peace Officers' Association v. State of California
Case No. A085064
California Court of Appeal, First District, Division Two
GOVERNMENT-PUBLIC SAFETY OFFICERS PROCEDURAL BILL OF RIGHTS ACT-LIMITATION ON INVESTIGATIVE TECHNIQUES OF PEACE OFFICERS
An investigation of officers at Corcoran state prison was precipitated by claims that the rape of an inmate had been set up by prison staff, who then endeavored to conceal their conduct. The officers filed a lawsuit alleging abusive tactics in investigating the alleged criminal activity. The superior court issued a preliminary injunction against the California Department of Justice and the California Department of Corrections, limiting their conduct in investigating the alleged criminal activity.
HELD: The Public Safety Officers Procedural Bill of Rights Act. requires that, prior to interrogation, an officer must be informed of the identity of the interrogators and the nature of the investigation. The interrogation must be conducted at a reasonable hour, for a reasonable period of time, may not include offensive language, and may be tape recorded by the officer. The right to representation arises when the interrogation focuses on matters likely to result in punitive action. The DOJ’s involvement in the investigation did not serve to immunize the CDC from the provisions of the Act. The Act applied to the investigation at issue in this case and that a number of provisions were violated. Enjoining the DOJ is, as a practical matter, unnecessary because the injunction issued against the CDC will effectively prevent any such future concerted activity. Reversed as granted, with instructions to modify.
Rosasco v. Commission on Judicial Performance
Case No. A086366
California Court of Appeal, First District, Division Three
(Certified for publication with the exception of part II.)
OTHER-PROPOSITION 190-RETROACTIVE APPLICATION OF PROPOSITION TO INVESTIGATION OF RETIRED JUDGE
The Rosasco family had an ongoing complaint against certain judges. They alleged malpractice, fraud and violation of fiduciary duty in the preparation of testamentary instruments for and representation of different members of appellant’s family between 1949 and 1967 by retired Superior Court Judge James R. Hardin, at that time an attorney in private practice; and Judge Hardin’s subsequent alleged perjury, obstruction of justice and willful misconduct while in office. The member of the family sent a detailed letter of the charges to the Commission on Judicial Performance. The Commission notified Rosasco by letter that it did not have jurisdiction or authority to initiate an investigation of a retired judge who retired before March 1, 1995. The demurrer of the Commission to Rosasco's petition for a writ of mandate was granted, without leave to amend.
HELD: In 1994, the voters passed Proposition 190. The Proposition provided that the Commission had jurisdiction to investigate, publicly admonish, censure, or sanction former judges by barring them from receiving future assignments, appointments, or references from any California state court, with discretionary review by the Supreme Court. Both Proposition 190 and the ballot pamphlet were silent on the question of whether the expansion of the Commission’s jurisdiction to include retired former judges was intended to be retroactive. The general rule, both in California and in the United States, is that absent some clear indication to the contrary, any change in the law is presumed to have prospective application only. The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student. At the time Judge Hardin retired, in 1993 his retirement terminated the Commission’s jurisdiction to initiate an investigation against him. Affirmed, with a technical modification of the writ as issued.
People v. Martinez
Case No. B137144
California Court of Appeal, Second District, Division Six
CRIMINAL-PROOF OF EXCUSE OF JURORS BECAUSE OF ETHNICITY-STANDARD OF APPELLATE REVIEW-INEFFECTIVE COUNSEL-SUFFICIENCY OF EVIDENCE FOR ENHANCEMENT-CONFLICT OF INTEREST OF ATTORNEY
Martinez and Quintero robbed a landscaper while he was working in the front yard of a client's home. They were convicted of second degree robbery with firearm enhancement allegations. During voir dire of the jury, the prosecutor used four of her first eleven peremptory challenges to remove Hispanic jurors from the panel. Counsel for Martinez brought a motion to dismiss the venire on the ground that the Hispanic jurors had been excused solely because of their ethnicity ("Wheeler motion"). The trial court here found no prima facie case of group discrimination.
HELD: The record supports the trial court's finding that the prosecution had nondiscriminatory reasons for excusing the four Hispanic jurors. To succeed on a Wheeler motion a defendant must demonstrate a "'"strong likelihood"'" of discrimination to establish a prima facie case under Wheeler. The Ninth Circuit standard on the other hand, requires only that the defendant raise an inference of a discriminatory purpose ("Batson"). Even if Martinez preserved a federal Batson claim automatic reversal is not required whenever a state court applies the strong likelihood standard to a Batson claim. The discrepancy between the two standards means that a trial court's finding under Wheeler is entitled to no deference when a reviewing court makes a de novo review under Batson. A de novo review of the voir dire in this case reveals ample reasons for dismissing the Hispanic jurors, and we conclude there was no "reasonable inference" of a discriminatory purpose. Quintero's assertion of ineffective counsel, because he failed to join in Martinez' motion is also denied, because Martinez' motion has no merit Quintero was not prejudiced. The Penal Code mandates a ten-year sentence enhancement when the defendant personally used a firearm during the commission of a robbery. The evidence was sufficient to sustain the enhancement. The fact that Quintero's attorney had applied to the District Attorney's office for a job did not create a conflict of interest to require his disqualification. Denial of Quintero's motion to withdraw for failure to pay required fees did not create a conflict of interest. Affirmed.
McLaughlin v. McLaughlin
Case No. B125410
California Court of Appeal, Second District, Division Four
FAMILY LAW-DISSOLUTION OF MARRIAGE-REQUIREMENT FOR PRELIMINARY PROPERTY DECLARATION IN DISSOLUTION-WAIVER OF FINAL PROPERTY DECLARATION PERMITTED-HARMLESS ERROR IN FAILURE TO FURNISH PROPERTY DECLARATION
Donald filed a petition for dissolution of marriage to Janet. The parties entered into an agreement as to the distribution of their separate and community property. Donald’s counsel prepared a proposed judgment incorporating the terms of the settlement agreement, and the parties signed the agreement. The settlement agreement required Janet to pay Donald $750 per month in spousal support and $637 per month in child support. A month later Janet filed a notice of rescission of the settlement agreement and stipulation for judgment. Her stated grounds for rescinding were; fraud, misrepresentation, failure of consideration, failure to notarize, and failure to submit and serve preliminary and final declarations of disclosure. The motion was denied.
HELD: By statute the parties to marital dissolution proceedings have an affirmative duty to exchange both a preliminary and a final declaration of disclosure, detailing all of their assets and liabilities, prior to judgment being entered. In contrast to the statutory provisions regarding preliminary declarations of disclosure, the provisions regarding final declarations specifically give the trial court discretion to enter judgment in the absence of final declarations, and also permit the parties to waive the requirement under specified circumstances. Some of the methods of waiver of a final declaration are by execution of a waiver in a marital settlement agreement or by stipulated judgment or a stipulation entered into in open court. Janet did not point to anything in the record to support a finding of prejudice. Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there. Given that Janet has not identified any omitted assets, setting aside of the agreement/proposed judgment for the exchange of disclosure statements would exalt form over substance. Any error was harmless. Affirmed.
Curtis v. Estate of Fagan
Case No. E024452
California Court of Appeal, Fourth District, Division Two
PERSONAL INJURY-JURISDICTION OF COURT TO AWARD AND ALLOCATE ATTORNEY FEES BETWEEN MULTIPLE ATTORNEYS-SUFFICIENCY OF EVIDENCE TO SUPPORT AWARD
The father of minor, Curtis died as a result of injuries sustained in a motor vehicle accident. Attorney Lloyd filed an action for wrongful death on behalf of on behalf of John M. Clayton , a passenger in the vehicle. A few days later attorney Bryant filed a wrongful death action for the same accident on behalf of Michelle Jessop minor’s mother and guardian ad litem. The Clayton action was dismissed six months later. Lloyd filed a notice of attorney’s lien in the Jessop action. According to Lloyd, Jessop had retained him to represent her as guardian ad litem for Curtis. Following settlement of the Jessop action, Bryant filed a petition for compromise of the minor’s claim, in which he requested attorney fees, expenses and costs totaling $35,000. Lloyd filed another lien in the Jessop action, this time asserting a quantum meruit claim as the minor’s former attorney. Attorney fees of $12,500, were awarded to Lloyd, and Bryant’s was awarded $22,500. Bryant appealed.
HELD: The Probate code provides that: the court making the order or giving the judgment in a minor's compromise of a claim shall make a further order authorizing and directing that such reasonable expenses (medical or otherwise and including reimbursement to a parent, guardian, or conservator), costs, and attorney’s fees, as the court shall approve and allow therein, shall be paid from the money or other property to be paid or delivered for the benefit of the minor or incompetent person. According to the unambiguous language in the statute, the trial court is empowered to approve and allow payment of reasonable expenses, costs, and attorney fees. The trial court properly engaged in a determination of the reasonable amount of fees to be paid to both Bryant and Lloyd. The evidence shows that Lloyd represented Clayton for six months. The expenses claimed by Lloyd may not all be due to his concurrent work relating to the minor, Curtis' representation. Reversed and remanded.
Utility Cost Management v. Indian Wells Valley Water District
Case No. F030932
California Court of Appeal, Fifth District
(Certified for publication with the exception of Exhibit A.)
OTHER-CHALLENGE TO AMOUNT OF WATER DISTRICT CHARGES FOR WATER-LIMITATION OF TIME TO BRING ACTION UNDER GOVERNMENT CODE
UCM as the assignee of Kern Community College District filed a complaint against Indian Wells Valley Water District. The complaint asserted that amount of the capital facilities fees charged by the IWVWD, and the periodic increases, exceeded the maximum amounts authorized by statute. A demurrer to the third amended complaint was sustained without leave to amend, on the grounds of a120 day statute of limitations provided for in the Government Code.
HELD: The 120 day limitation period of the Government Code applies when the plaintiff’s goal is a judicial finding that the legislative decision adopting the charge cannot be enforced in any circumstance against any existing or future development because of some procedural or substantive illegality in the decision. When the fundamental legislative decision enacting the charge is not in issue, and instead there is a challenge to an agency’s adjudicative decision to impose upon a particular development project a fee adopted by a generally applicable legislative decision, the 120 day period was not the applicable statute of limitations. The UCM complaint does not challenge the legislative decision to impose a charge on College, rather it challenges the adjudicative decision of the particular amount to charge College. Reversed and remanded.
Jasmine G./Orange County Social Services Agency v. Daphne S.
Case No. G026130
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-REMOVAL AND DETENTION OF FIFTEEN YEAR OLD FOR LACK OF PARENTAL SKILLS
In late May 1999 15-year-old Jasmine was living with her mother, Daphne, in Tustin. Her father, Michael, lived in Fountain Valley. Both parents were employed, law-abiding citizens with no alcohol or drug dependencies and no prior encounters with the juvenile dependency system. Both parents explicitly shared the responsibility for rearing Jasmine, in terms of such things as curfew hours, when she could go out, and what sort of clothes she could wear. On May 21, Daphne used a switch to discipline Jasmine for having invited a boy into the home in violation of house rules. Both parents considered the presence of a stranger in the home to be a serious, even "life-threatening" matter. Michael used a thin leather belt to strike Jasmine across the buttocks and on the upper back of the legs for the same incident. These incidents left marks and prompted the county's social services agency to file a petition to declare Jasmine a dependent child and detain her. A social worker opined that a teenager should not be returned to her mother because both her parents apparently lacked a "full understanding" of their 15-year-old daughter's adolescent "issues." Both parents testified that they had changed their attitudes toward corporal punishment for teenagers and expressed remorse that their physical abuse of their daughter had led to the dependency. During her detention Jasmine had a nose ring inserted. The trial court decided to remove Jasmine from her mother's home.
HELD: "Excuse us -- but what parent doesn't that describe? What in the world is going on when a 15-year is removed from her family, put into supposedly 'protective' custody, and the first thing that happens is that she gets a nose stud? And who gave the parental consent that should have been obtained before any body piercing was done?" A social worker's opinion that parents have not sufficiently internalized proper parenting skills is not substantial evidence to justify even a detriment finding. The trial court was more interested in how the stud got removed. From county counsel's description of the incident, one would think that Jasmine acquired a nose ring which Daphne "ripped" out. That is a distortion of the record. Reversed and remanded with directions.
Redwood Empire v. Gombos
Case No. H019557
California Court of Appeal, Sixth District
REAL PROPERTY-IMPLIED DEDICATION OF PUBLIC EASEMENT-SCOPE OF IMPLIED DEDICATION FOR PUBLIC PURPOSES
Gombos owns property in the Santa Cruz Mountains on Summit Road. They privately own the portion of a road that crosses their property. Gombos sued to prevent Redwood Empire from using that portion of the road to conduct logging operations. Redwood cross-complained for an order preventing Gombos from impeding their use of the disputed portion of the road. The trial court found that the portion of the road in issue has been impliedly dedicated to the public as a result of public recreational use of the road in the 1950’s and 1960’s. The court enjoined Gombos from interfering with Redwood's use of the road. The trial court allowed evidence of prior use, although Redwood had previously responded to a request for admission by admitting they had no such evidence, which was true at the time.
HELD: Redwood had no duty to update their response to the request for admission when they subsequently discovered evidence of prior use. While the problem only appeared in hindsight, it is a consequence of the choice to use an RFA regarding a matter of a party’s present knowledge, rather than the more typical RFA, which addresses a matter of historical fact. An implied dedication may arise when the public has used the land for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone. The public usage must have been by various groups of persons not a limited and definable number of persons. prior to 1972 adverse public use of a road for more than five years generally gave rise to an implied dedication of a public easement to use the road. An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other’s land. A person using the land of another for the prescriptive period may acquire the right to continue such use, but does not acquire the right to make other uses of it. While substantial evidence supports the finding of an implied dedication, an issue remains as to the scope of the implied dedication. It was premature to deny Dean injunctive relief without determining the scope of the public easement. Reversed the denial of injunctive relief to Gombos and remand for a determination of the scope of the public dedication. If the court concludes the dedication was too limited to permit commercial logging operations on the roadway, Gombos will then be entitled to injunctive relief.
Krusi v. S.J. Amoroso Construction
Case No. A086602
California Court of Appeal, First District, Division Two
ORDER
Modification of opinion filed herein on June 23, 2000, not affecting the judgment.
DeGeorge v. United States District Court
Case No. 99-71446
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-REQUIREMENTS FOR ISSUANCE OF WRIT OF MANDATE TO VACATE ORDER DENYING DISMISSAL OF CHARGES- EX PARTE APPLICATION TO SUSPEND RUNNING OF STATUTE OF LIMITATIONS TO SECURE EVIDENCE IN FOREIGN NATION
In late 1992 and early 1993, DeGeorge and a partner bought a 76-foot motor yacht in Italy, inflated its apparent value through sham sales and purchases, insured it at the inflated value, and after scuttling it on its maiden voyage attempted to collect the insurance. The insurer brought an action to rescind the policy for fraud. Recission was granted. As a result of the discovery in the matter the district court referred the matter to the U.S. Attorney for investigation of perjury. After some internal delays on August 26, 1997, the Assistant U. S. Attorney filed an ex parte, in camera application, pursuant to statute for an order suspending the running of the statute of limitations for any federal offenses related to DeGeorge's alleged conduct pending the government's foreign evidence request. The district court granted the request on September 3, 1997, suspending the statute of limitations period as of August 18, 1997, the date of the foreign evidence request. In January 1999, a fourteen-count indictment was returned charging DeGeorge with various federal crimes. DeGeorge's motion to dismiss 12 of the charges, on statute of limitations grounds, was denied.
HELD: To secure relief by mandamus the petitioner must show that: (1) there is no other adequate means to attain the relief desired; (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) the court's order is clearly erroneous as a matter of law; (4) the court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and, (5) the district court's order raises new and important problems, or issues of law of first impression. The Court found that direct appeal was an adequate means for DeGeorge to obtain the relief he seeks. Unnecessary cost and delay resulting from an erroneous ruling of the district court are not prejudice correctable through use of the writ of mandamus. There was no clear error in allowing an in camera, ex parte motion to suspend the statute of limitations period. The statute provides this may be done when evidence of an offense is sought and it reasonably appears that such evidence is in a foreign country. Petition denied.
Benct-Woodward v. Internal Revenue Service
Case No. 99-70136
U.S. Court of Appeals for the Ninth Circuit
TAXATION-CONTINGENT FEES PAID TO AN ATTORNEY FOR PUNITIVE DAMAGES AWARDED ARE NOT INCOME AND NOT DEDUCTIBLE FOR THE PURPOSE OF COMPUTING THE ALTERNATIVE MINIMUM TAX
Plaintiffs recovered judgment against their employer. The damage award included compensatory and punitive damages. The plaintiffs excluded the portion of the punitive damages paid to their attorney under their contingency fee agreement with him. The Tax Court held that the punitive damages were includable in plaintiffs income, and that as miscellaneous itemized deductions, the contingent fees are subject to disallowance as a result of the application of the Alternative Minimum Tax.
HELD: Contingent fee contracts with an attorney do not operate to transfer a part of the cause of action to the attorney but only give him a lien upon his client's recovery. The Tax Court also correctly determined that the legal expenses at issue here are miscellaneous itemized deductions, see and as such are not allowed as deductions for purposes of computing AMT liability. Affirmed.
Agbuya v. Immigration and Naturalization Service
Case No. 98-70965
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-REQUISITES FOR GRANT OF ASYLUM-IMPUTED POLITICAL OPINION-REBUTTABLE PRESUMPTION OF WELL FOUNDED FEAR OF FUTURE PERSECUTION FROM PAST PERSECUTION
Agbuya is a citizen of the Philippine. She had a job making her responsible for terminating employees or notifying individuals that they were being disciplined for various infractions and employment related difficulties. She was unpopular and her situation was exacerbated when the company cut back employment. Agbuya learned that the union had been infiltrated by members of the New People's Army, an armed communist guerilla group responsible for numerous deaths and kidnappings. She began to receive telephone calls demanding her resignation and threatening her family if she failed to comply. She was kidnapped and a ransom paid for her release. Her application for asylum and withholding of deportation was denied by the Board of Immigration Appeals.
HELD: To be eligible for asylum, Agbuya must show that she is unwilling or unable to return to her 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. Evidence of past persecution alone can establish a well-founded fear. Establishing past persecution triggers a rebuttable presumption of a well-founded fear of future persecution. Where an asylum applicant relies on past persecution on account of political opinion to establish a rebuttable presumption of a well-founded fear of future persecution, she must show that: (1) she was a victim of persecution; (2) she holds a political opinion or has had one imputed to her; (3) her political opinion was known to or imputed by her persecutors; and, (4) the persecution was on account of her actual or imputed political opinion. There is little doubt that Agbuya was singled out by the guerillas for persecution because of the unpopular actions she took while an employee of Benguet. The NPA viewed Agbuya as an enemy of the miners, the NPA, and the communist cause. Her petition was granted. Agbuya is eligible for asylum and her application for withholding of deportation is granted. The case was remanded with directions to present this matter to the Attorney General as eligible for the exercise of her discretion as to asylum.
Cervantes v. County of Santa Cruz
Case No. 99-15441
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-NON DSCHARGEABILITY OF PAYMENTS MADE AS AID TO FAMILIES WITH DEPENDENT CHILDREN-APPLICATION TO CHAPTER 13 PROCEEDING
Cervantes fathered a child with his girlfriend, Monica. In 1993, shortly after the child was born, Monica applied to the County for Aid to Families with Dependent Children She was required under state and federal law to assign to the County any "accrued" rights to support from the child's father. In 1994, the County obtained a judgment requiring Cervantes to pay $219 per month in child support and to reimburse the ounty $4,161. In 1996 he filed for relief under chapter 13 of the Bankruptcy Code. The Bankruptcy court held the debt dischargeable and the BAP affirmed, concluding that the County waived its key argument of the effect of 1996 amendments to the Bankruptcy code made by the Welfare Reform Act.
HELD: The Court first concluded that the County did not waive its argument relating to the effect of the Welfare Reform Act on the Bankruptcy Act. On the merits the Court found that the WRA amendment stating that a debt owed under State law to a State or municipality that is in the nature of support and that is enforceable under the Act is not released by a discharge in bankruptcy under title 11 of the United States Code, is applicable to proceedings under Chapter 13 of the Bankruptcy Code. The ambiguity in the provision's application to the Chapter 13 of the Bankruptcy Code was resolved in favor of non dischargeability. The plain language of the statute makes it clear that it applies to all chapters of the Bankruptcy Code. Reversed.
Wasserman's Archived Appellate Summaries
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