Wasserman's Appellate Summaries
July 24, 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.
Horton v. City of Oakland
Case No. A085460
California Court of Appeal, First District, Division Three
GOVERNMENT-MUNICIPAL ORDINANCE PROVIDING FOR CIVIL FORFEITURE OF VEHICLE USED IN SOLICITATION OF PROSTITUTION OR ACQUISITION OF CONTROLLED SUBSTANCES-STATE PREEMPTION OF LOCAL ORDINANCE
The City of Oakland has an ordinance authorizing civil forfeiture of vehicles involved in solicitation of prostitution or acquisition of controlled substances. Horton and others sued for injunctive relief against enforcement of the ordinance, on the grounds it was preempted by state law. Judgment was for the City.
HELD: The "home rule" doctrine, reserves to charter cities the right to adopt and enforce ordinances that conflict with general state laws, provided the subject of the regulation is a "municipal affair" rather than one of "statewide concern." The state statutory scheme is silent with regard to vehicles used by drug buyers. The ordinance covers an area untouched by statewide legislation. There is a state pilot program relating to use of a vehicle during commission of an act of prostitution, which provides impoundment of the vehicle for a maximum of 48 hours for a second offense. This statute contains no explicit statement of intent to occupy the area. The Court concluded that the state left it to local communities to establish a pilot program pursuant to that statute if they so choose. Affirmed.
Ludgate Insurance Company v. Lockheed Martin Corporation
Case No. H018333
California Court of Appeal, Sixth District
INSURANCE-REQUIREMENT OF ACTUAL CASE OR CONTROVERSY-PARTY BOUND BY OWN PLEADINGS-DISCRETIONARY REQUIREMENT FOR BOND BY FOREIGN INSURER
A group of individual London market insurers and syndicates, issued primary and excess liability insurance policies, "each for itself and not for any others," to Lockheed from approximately 1940 through 1985. While an underlying lawsuit was pending Ludgate separated itself from the plaintiff group, and pursued its claim against Lockheed on its own as a separate and independent plaintiff. The lawsuit related to the requirement of the insurers to provide a defense environmental contamination, when the government had or will pay such defense expenses. Lockheed cross-complained. Ludgate's response was that the primary insurance had not been exhausted and there was no claim to adjudicate. Lockheed's motion to require a bond from Ludgate was denied. Judgment on the pleadings was for Ludgate.
HELD: The motion for judgment on the pleadings may only be made on the grounds that either the court has no jurisdiction of the subject of the cause of action alleged in the complaint, or the complaint does not state facts sufficient to constitute a cause of action against that defendant. The grounds for the motion must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. In this case Ludgate initiated the action by filing a complaint against Lockheed. That complaint alleged that an actual and justiciable controversy exists between the parties regarding whether a defense obligation is owed by Ludgate to Lockheed. Ludgate is bound by those allegations. It cannot now be permitted to deny the existence of an actual controversy between itself and Lockheed. By moving for a judgment on the pleadings, Ludgate admitted, for purposes of that motion, all the material allegations in Lockheed’s complaint were true. Exhaustion of underlying limits is not necessary to create actual controversy. Exhaustion is merely an issue of proof and entitlement to recovery, not of pleading. A cardinal rule of pleading is that only the ultimate facts need be alleged. The trial court did not abuse the discretion it had under the Insurance Code in denying Lockheed’s bond motion. Reversed the grant of the summary judgment. Affirmed the order denying the motion for Ludgate to provide a bond.
ECC Construction v. Ganson
Case No. B132155
California Court of Appeal, Second District, Division One
ORDER-CONTRACT WITH HOMEOWNERS ASSOCIATION-RIGHT TO RECOVER FROM INDIVIDUAL CONDOMINIUM OWNER
Modification of opinion filed on June 29, 2000, not affecting the judgment. Clarification of right to recover from each individual condominium owner the reasonable value of work performed on each condominium unit and proportionate share of common area expense.
Connecticut Indemnity v. Superior Court of San Joaquin Valley/City of Lodi
Case No. S065841
Supreme Court of California
GOVERNMENT-POWER OF GOVERNMENT BODY TO ISSUE SUBPOENAS
Groundwater in a central business and residential area of the City of Lodi are contaminated with a number of carcinogenic substances. The City Council resolved to investigate the adequacy of existing environmental legislation and seek a solution to the problem. In its effort to determine potential financing sources the City issued subpoenas to the known liability insurers of three potentially liable parties seeking information about the existence, terms, and remaining limits of liability of any liability insurance policies that the responsible parties have had since they have been in business. The insurers sought injunctive relief. The trial court ruled for the City. The Court of Appeal reversed.
HELD: The legislative power of inquiry, and process to enforce it, is an essential and appropriate auxiliary to the legislative function. The city’s specific authority to issue subpoenas is set out in the Government Code, which provides that a legislative body may issue subpoenas requiring the attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it. The use of subpoenas must have a valid legislative purpose, and the witnesses or material subpoenaed are pertinent to the subject matter of the investigation. The Court found the subpoenas satisfied all the requisites for their issuance. Reversed the Court of Appeal.
United States v. Musa
Case No. 99-50183
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-STATED REASON FOR DEPARTURE FROM SENTENCING GUIDELINES-FAILURE TO MAKE INQUIRY AS TO REASON FOR REQUEST FOR SUBSTITUTE COUNSEL
While on supervised release following convictions on three counts of bank fraud, Musa was convicted of misdemeanor witness intimidation. At the revocation hearing Musa's request for substitute counsel was denied without inquiry and he statutory maximum three-year prison term, exceeding the three-to-nine-month range of the sentencing guidelines.
HELD: The district court did not abuse its discretion by imposing the three-year sentence and stated a legitimate reason for departing from the range listed in the Sentencing Commission's non-binding policy statement. The reason stated was that Musa is a danger to the community. The court did abuse its discretion in not inquiring into Musa's reasons for seeking substitute counsel. Sentence vacated and a new hearing was ordered.
United States v. Cormier
Case No. 99-30182
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-CONSENSUAL SEARCH-SUPPRESSION OF EVIDENCE SEIZED IN VIOLATION OF STATE LAW BUT NOT FEDERAL
A check of the motel registration records in a high crime area revealed that a registered guest, Cormier had an outstanding warrant. He was contacted by a police officer who was admitted to his room. During a claimed consensual search the officer reached into the pocket of one of the jackets and found a loaded handgun. Cormier never asked the officer to stop searching nor did he ever protest the scope of the search. The officer never told Cormier that, pursuant to state law, he had the right to have the search discontinued at any time. Cormier motion to suppress was denied. He was convicted of being a felon in possession of a firearm.
HELD: Cormier had no reasonable expectation of privacy in the motel registration records and cannot allege a Fourth Amendment violation. The Fourth Amendment protection against unreasonable searches and seizures also extends to such places as hotel or motel rooms. Because Cormier had a reasonable expectation of privacy in his motel room, the question is whether he voluntarily opened the door or, alternatively, whether there were coercive circumstances that turned an ordinary consensual encounter into one requiring objective suspicion. The general rule regarding "knock and talk" encounters is that there is no rule which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably to knock on the front door of any man's `castle' with the honest intent of asking questions of the occupant. There is no evidence to indicate that the encounter was anything other than consensual and no suspicion needed to be shown in order to justify the "knock and talk." Several factors support the district court's finding that the encounter was entirely consensual. The general rule is that evidence will only be excluded in federal court when it violates federal protections and not in cases where it is tainted solely under state law. Since the search was consensual the evidence was not required to be suppressed. Affirmed.
The Free Speech Coalition v. Reno
Case No. 97-16536o
U.S. Court of Appeals for the Ninth Circuit
ORDER-CHILD PORNOGRAPHY PREVENTION ACT
The petition for rehearing was denied and the suggestion for rehearing en banc was rejected.
Wasserman's Archived Appellate Summaries
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