Wasserman's Appellate Summaries
July 20, 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.
State Board of Equalization v. Woo
Case No. A088646
California Court of Appeal, First District, Division Four
CIVIL-FRAUDULENT TRANSFER BY AGREEMENT FOR TRANSMUTATION OF COMMUNITY PROPERTY INTO SEPARATE PROPERTY
The Board of Equalization secured a judgment against Ho for unpaid sales taxes relating to the operation of his restaurant. Several months later Ho and his wife, Woo, entered into a marital agreement transmuting their future earnings to separate property. The BOE sought an earnings withholding order against Woo's earnings, claiming the transmutation was fraudulent under the Family Code. After a hearing the earnings withholding order was granted.
HELD: Ho had a present interest in appellant’s future earnings at the time he executed the marital agreement. It is well settled that earnings of either the husband or the wife acquired during the marriage constitute community property. The attempt to transmute the community property earnings to her separate property constituted a fraudulent transfer. Affirmed.
McCullah v. Southern California Gas Company
Case No. B136358
California Court of Appeal, Second District, Division Six
CIVIL-CERTIFICATION AS CLASS-WELL DEFINED COMMUNITY OF INTEREST IN FACTS REQUIREMENT
Pursuant to a collective bargaining agreement with appellant's union, Gas Company maintains a job bid list by which employees seeking job changes bid on positions before they become available. When a position becomes vacant, it is filled by the most senior qualified person on the bid list unless another bidder has priority. Employees on disability have priority if they are qualified and are able to perform the duties of the position. The collective bargaining agreement also gives priority to employees "in the path of layoff. McCullah suffered two work-related injuries. He made 7 bids for a position in two years without success. Company sent him to a six-week clerical skills training program and he had temporary positions over the next year. In 1996, a new disability benefit plan was negotiated, which affected employees on disability whose injuries were rated permanent and stationary. It provided for termination if unable to perform occupations for which they were qualified, or they found a permanent position at SCG. After failed efforts to retrain McCullah he was terminated. He sued for violation of the Fair Employment and Housing Act and related claims. His effort to have all employees who became disabled in the past four years certified as a class was denied.
HELD: The party seeking certification as a class representative must establish the existence of an ascertainable class and a well-defined community of interest among the class members. The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. The community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the 'class judgment' determining issues common to the purported class. When the discrimination claim is based on an employee's physical or mental disability, it is difficult to identify and certify the class. In this case there is no well defined community of interest and that individual questions predominate. Affirmed.
People v. Jones
Case No. B133543
California Court of Appeal, Second District, Division Two
CRIMINAL-ATTEMPTED ROBBERY FROM EMPLOYEES OF BUSINESS ESTABLISHMENT-SENTENCING-MULTIPLE ENHANCEMENTS FOR USE OF MULTIPLE WEAPONS
Jones and an accomplice held up the administrative offices of a K-Mart store in Inglewood. During the course of the armed robbery they threatened and assaulted a number of employees in an unsuccessful attempt to get keys to open the cash room. Jones was found guilty of two counts of second degree robbery, five counts of attempted second degree robbery, and assault with a semiautomatic firearm. He was sentenced to an aggregate prison term of 18 years, 4 months.
HELD: Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property. Jones was properly convicted of attempted robbery of 4 of the employees. After finding that appellant used both a gun and a knife on one employee the trial court imposed two sentence enhancements. The Penal Code permits Jones sentence to be enhanced with only the firearm use allegation because that is the greater enhancement. Affirmed, and sentence modified to reflect one excessive enhancement and a clerical error.
Siskiyou County Human Services Department v. Darren D.
Case No. C033867
California Court of Appeal, Third District
FAMILY LAW-DEPENDENT CHILDREN-DENIAL OF CONTESTED HEARING RELATING TO PROPOSED REDUCTION IN VISITATION BY PARENT
The juvenile court sustained the petition for the three minor children of Darren, adjudged the minors dependent children, and ordered the minors placed in Darren's custody under the supervision of the court with family maintenance services provided by HSD. A supplemental petition was later filed and the children placed in foster care. At the status review hearing, Darren requested a contested hearing when the department requested reduced visitation by Darren. The court held that there is no right to a contested hearing on this issue. Visitation would still be in the discretion of the Department, unless it would be patently unreasonable.
HELD: Although visits are not addressed explicitly in the statute, from other language one must infer that visitation is a proper issue to address at the status hearing, since it pertains to parental interests as well as those of the minor. Darren is entitled to a hearing on the subject of visitation. Reversed and remanded.
Streit v. Covington & Crowe
Case No. E023862
California Court of Appeal, Fourth District, Division Two
TORTS-ATTORNEY MALPRACTICE-ATTORNEY MAKING ONLY ONE SPECIAL APPEARANCE AT REQUEST OF LEAD ATTORNEY
Streit sued Weldon Diggs, his professional corporation and other persons for legal malpractice. She later joined the law firm of Covington & Crowe, who had only specially appeared to contest the summary judgment motion in the underlying action. Defendant's motion for summary adjudication was denied for the Diggs defendants and granted as to Covington & Crowe.
HELD: One of the requisite elements of a legal malpractice claim is the existence of an attorney-client relationship or other basis for a duty of care owed by the attorney. Although the relationship usually arises from an express contract between the attorney and the client, it may also arise by implication. The relationship may arise without any direct dealings between the client and the attorney. By making a special appearance Covington & Crowe became associated with the Streit's attorney of record. Agency principles are not controlling when determining the existence and scope of an attorney’s duties. Reversed.
People v. Giardino
Case No. E023991
California Court of Appeal, Fourth District, Division Two
(Certified for publication with the exception of parts D, E, and F.)
CRIMINAL-INSTRUCTIONS-RAPE BY INTOXICATION-PREVENTED FROM RESISTING-BELIEF THAT CONSENT WAS GIVEN-ADMISSION OF POST CRIME CRIMINAL OFFENSE BY VICTIM INVOLVING MORAL TURPITUDE
Giardino was convicted of multiple counts of rape by intoxication and oral copulation by intoxication and related charges. The trial court refused to instruct the jury that lack of consent is an element of the charges of rape by intoxication and oral copulation by intoxication, on the meaning of "prevented from resisting" and of "his reasonably held but mistaken belief in the victim’s ability to give legal consent."
HELD: The CALJIC jury instruction given describes consent that is actually and freely given without any misapprehension of material fact. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had sufficient capacity to give that consent. If the charge is that the victim lacked the capacity to give legal consent then actual consent is irrelevant, and the jury instructions need not touch on that issue. The issue to be addressed is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent. The instruction relating to "prevented from resisting" in the language of the statute was not sufficient. As demonstrated by its request for a definition of "resistance," the jury was having difficulty grasping the import of the statutory language, and understandably so. The meaning of "prevented from resisting" in this context is not clear. A defendant’s honestly and reasonably held but erroneous belief that the victim actually consented to sexual intercourse is a defense to a charge of forcible rape. The actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant. The trial court also improperly excluded evidence of the victim's taking of a vehicle without the consent of the owner. with the intent to temporarily deprive the owner of possession. Although this offense occurred after the rape, it is an offense involving moral turpitude and should have been admitted. There is a reasonable probability of another verdict if admitted and was prejudicial error. Because there is insufficient evidence to establish that the victim’s losses totaled $7,359, the restitution order must be reversed. Reversed as to four counts and the restitution order. Affirmed as to other counts.
Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga/Lauren Development
Case No. E024244
California Court of Appeal, Fourth District, Division Two
ENVIRONMENTAL-ENVIRONMENTAL IMPACT REPORT MAY NOT BE REQUIRED AFTER ALL DISCRETIONAL AGENCY APPROVALS OBTAINED-WHEN SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT MAY BE REQUIRED-JUDICIAL NOTICE ON APPEAL
After much effort the prior owner of real property secured approval of a tentative tract map for 40 homes. After public hearings in 1990 here was no challenge to the adoption of a Negative Declaration and approval of the tentative map. In 1997 the Planning Commission for the City of Cucamonga approved the application of Lauren, the current developer's detailed site plan and architectural review for the 40 homes proposed for construction. CURE appealed the approval to the City Council. The Council denied Lauren’s design review application and found that no further environmental review was required. CURE's petition for a writ of mandate was denied.
HELD: The request of CURE for judicial notice of certain records not of record was denied. It would never be proper to take judicial notice of evidence that (1) is absent from the administrative record, and, (2) was not before the agency at the time it made its decision. A public agency may require a subsequent EIR only when the agency grants a discretionary approval. Once all discretionary approvals have been obtained no agency has jurisdiction to require a further EIR. In this case, the negative declaration and subdivision plans were approved in 1990. Since the City denied Lauren’s design review application, which prompted CURE’s request for a Supplemental EIR, the City was not required to prepare an SEIR. The issues of Riverside and Alluvial Fan Sage Scrub protection were not raised in any of the proceedings below and was not considered on appeal. Affirmed.
Chouchkov/Kondratieva v. Immigration and Naturalization Service
Case No. 98-70687
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-MAKING DE NOVO CREDIBILITY FINDING BY BOARD OF IMMIGRATION APPEALS WITHOUT OPPORTUNITY TO REBUT-FINDINGS NOT SUPPORTED BY RECORD
Chouchko is of Jewish descent. He and his wife Natalia Kondratieva are Russian citizens. He worked as a nuclear engineer. When he opposed supplying nuclear technology to Iran he and his family members were subjected to tactics of intimidation intended to get his cooperation to enable the Iran deal to proceed. He overstayed his visitation to the U.S. and conceded deportability but applied for asylum and withholding of deportation. His application was denied on the grounds that he had not shown that the Russian government was unwilling or unable to control those who sought to persecute him for his imputed political opinion.
HELD: The Attorney General has discretion to grant asylum to aliens who qualify as statutory "refugees." A "refugee" is defined as an alien who is unable or unwilling to return to the alien's 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. While an alien who establishes past persecution is presumed to have a well-founded fear of persecution, that presumption may be rebutted where the conditions in the country have significantly changed. In this case Chouchkov's credibility was also called into question by the BIA, without explicitly overturning the IJ's credibility finding, by highlighting two inconsistencies between Chouchkov's testimony and his written statements. But the BIA was in error in thus casting doubt on the IJ's credibility determination, because the record discloses that Chouchkov was not afforded an opportunity to explain the perceived inconsistencies. The BIA made several empirical assumptions that lack evidentiary support. Any reasonable finder of fact would have to conclude that there was a concerted governmentally-linked (at a minimum) effort to intimidate Chouchkov into cooperating with the Iran deal. Petition granted and remanded.
Joe Kennedy, as Successor in Interest and a Personal
Representative v. Southern California Edison Company/Combustion Engineering
Case No. 98-56157
U.S. Court of Appeals for the Ninth Circuit
TORTS-EXPOSURE TO RADIATION-INSTRUCTIONS-REASONABLE MEDICAL PROBABILITY EXPOSURE WAS A SUBSTANTIAL FACTOR CONTRIBUTING TO THE RISK OF DEVELOPING CANCER
Ellen Kennedy died in 1996 of chronic myelogenous leukemia, a rare form of cancer. She was 43 years old. The plaintiffs are her husband, Joe, and their four children. They sued Cal Edison in federal court, asserting jurisdiction pursuant to the Price-Anderson Act, and seeking damages for Ellen Kennedy's wrongful death from her negligent exposure to radiation. Combustion Engineering supplied the nuclear rods for operation of the Cal Edison plant at which Joe Kennedy was employed. Combustion's motion to dismiss product liability claims was granted. Kennedy's request for a burden of proof shifting instruction once his wife's death was shown to have been caused by radiation exposure brought home on Joe's clothing. Judgment was for defendants after trial.
HELD: Price-Anderson provides federal jurisdiction over lawsuits for injuries arising out of a "nuclear incident." Under such actions the substantive rules for decision are based on the law of the State in which the nuclear incident occurs, unless such law is inconsistent with the provisions of the federal act. California law provides that; in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. The standard instruction relating to multiple causation states, in part, that a cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. This instruction must be supplemented to state the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff's or decedent's risk of developing cancer. The district court's failure to give a proper instruction was not harmless error. An error in a trial court's jury instructions relating to the parties' respective burdens of proof ordinarily requires reversal. Reversed and remanded.
Estate of Macias v. Ihoe, et al.
Case No. 99-15662
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-EQUAL PROTECTION-ENFORCEMENT OF DOMESTIC VIOLENCE LAW
Mr. Macias physically and sexually abused Mrs. Macias and their children. After a long series of complaints to the sheriff and restraining orders, Mr. Macias shot and killed his wife and himself and wounded her mother. Her estate sued Sonoma County and several other individuals, on the grounds of violation of their rights to equal protection and substantive due process. The complaint alleged that Mrs. Macias death and her mother's injuries were the result of a Sonoma County policy to discriminate against women, victims of domestic violence, and Latinos. The district court dismissed the action for lack of causation.
HELD: The district court erred as a matter of law in concluding that the alleged constitutional deprivation was the murder of Mrs. Macias. There is no constitutional right to be protected by the state against being murdered by criminals or madmen. There is a constitutional right to have police services administered in a nondiscriminatory manner. This right may be violated when a state actor denies such protection to disfavored persons. Reversed and remanded so that the district court can determine, following completion of discovery, whether defendants deprived Mrs. Macias of her right to equal protection.
United States v. John Doe, a Juvenile
Case No. 99-50250
U.S. Court of Appeals for the Ninth Circuit
JUVENILE-ARREST OF JUVENILE BY FEDERAL OFFICERS-REQUIREMENT TO TAKE BEFORE A MAGISTRATE FORTHWITH-ADVISE THE JUVENILES PARENTS OF THE ARREST-ADVISE THE JUVENILE IMMEDIATELY OF HIS RIGHTS
Rudolfo, a juvenile, was arrested at a border crossing for transporting marijuana. A customs agent spoke to Rudolfo's sister, and informed her that Rudolfo had been arrested at San Ysidro for smuggling drugs. The agent did not inform Rudolfo's sister that Rudolfo would be undergoing interrogation, nor did he inform her of Rudolfo's Miranda rights. Rudolfo was read and waived his Miranda rights. He made a confession. Rudolfo was not brought before a magistrate until the next day, 10:30 a.m., nearly 32 hours after his arrest. Rudolfo's motion to suppress his statements was denied, on the grounds that they did not constitute a due process violation or cause him prejudice. He was adjudged a juvenile delinquent and ordered confined for 18 months.
HELD: Under federal law a federal arresting officer taking a juvenile into custody must immediately advise the juvenile of his rights; second, they must immediately advise the juvenile's parents of the juvenile's rights; and, third, they must bring the juvenile before a magistrate forthwith. None of these procedures was followed in this case: The juvenile was not advised of his rights until over three hours after his arrest; the parents were not notified of their child's rights at all; and, the juvenile was incarcerated for nearly a day and a half in a detention facility before being brought before a magistrate. His motion to suppress his statements should have been granted. Reversed and remanded.
Sidhu v. Immigration and Naturalization Service
Case No. 98-71363
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-PETITION FOR ASYLUM-REQUIREMENT FOR CORROBORATION OF TESTIMONY-SUBSTANTIAL EVIDENCE FOR ADVERSE CREDIBILITY FINDING-DUE PROCESS
Sidhu is a citizen of India and a member of the Sikh faith. After a hearing his asylum claim was denied on the basis of an adverse credibility determination. Sidhu failed to have his father present to corroborate his testimony. The BIA affirmed.
HELD: It is clear from the record and the case law that the BIA's first basis for finding Petitioner not credible does not constitute substantial evidence. The inconsistency in testimony focused on by the BIA related to the date of 1993, or 1994 that Sidhu was uncertain of when his father came to the U.S. When the IJ has reason to question the applicant's credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review. Because of the due process concerns the matter a new hearing in the case at bar is appropriate. Petition granted and remanded.
United States v. Dunifer
Case No. 99-15035
U.S. Court of Appeals for the Ninth Circuit
OTHER-PROCEDURE-CHALLENGE TO FEDERAL COMMUNICATIONS COMMISSION DECISION-COMMUNICATIONS ACT-INJUNCTION TO PREVENT UNLICENSED BROADCASTING
The FCC monitored transmissions on a FM frequency from an unlicensed, low power radio station in Berkeley, California, which identified itself as "Free Radio Berkeley." The strength of the signals was determined to be greater than that permitted for unlicensed stations. Dunifer was determined to be the broadcaster and the FCC applied for a Notice of Violation and for a $20,000 penalty. Dunifer sought a hearing. The FCC filed suit and secured a preliminary injunction. Dunifer's First Amendment arguments were heard and the district court summary judgment for the FCC.
HELD: The Communications Act prohibits the operation of a radio station without a Federal Communications Commission license. The Act grants the court of appeals exclusive jurisdiction to enjoin, set aside, suspend or determine the validity of all final orders of the FCC. The district court lacked subject matter jurisdiction to decide Dunifer's challenges to the licensing regulations. While the district court had jurisdiction to entertain the government's action for injunctive relief, it lacked jurisdiction to adjudicate Dunifer's affirmative defenses. Dunifer's remedy was to first apply to the FCC for a license and if denied to challenge the denial in the appellate court. Affirmed the injunctive relief.
Gorbach v. Janet Reno/Immigration and Naturalization Service
Case No. 98-35723
U.S. Court of Appeals for the Ninth Circuit
OTHER-INS DOES NOT HAVE THE POWER TO REVOKE NATURALIZATION OF ALIENS-IMPLIED DELEGATION OF POWER
Gorbach and nine other plaintiffs are naturalized citizens, who had been served with notices of intent to revoke naturalization, under new regulations of the INS. The district court granted class certification and issued a temporary injunction. On appeal the INS prevailed. The matter was reconsidered en banc and a new decision substituted.
HELD: Until 1990 the district courts had authority to naturalize persons as citizens of the United States. In 1990 the sole authority to naturalize persons as citizens of the United States was conferred upon the Attorney General. The statute entitled "Revocation of Naturalization" says that United States attorneys shall institute actions to revoke naturalization, in appropriate circumstances, in United States District Courts. The delegation that Congress expressly made to the Attorney General was of authority to naturalize citizens. There is no express delegation in the statutes to the Attorney General to denaturalize citizens. There is an express delegation to cancel "certificates of citizenship," but the statute on cancellation cuts against the government's argument of an implied delegation, because Congress expressly provided that such cancellations "shall affect only the document and not the citizenship status. Affirmed.
Kibler v. Walters
Case No. 98-35536
U.S. Court of Appeals for the Ninth Circuit
ORDER-INEFFECTIVE ASSISTANCE OF COUNSEL-RAISING ISSUE IN LOWER COURT
Amendment to opinion filed October 27, 1999, published at 197 F.3d 1251, not affecting the judgment.
Wasserman's Archived Appellate Summaries
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