Wasserman's Appellate Summaries
July 25, 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.
Louise Gardens of Encino Homeowners’ Association, Inc. v. Truck Insurance Exchange
Case No. B132007
California Court of Appeal, Second District, Division Three
INSURANCE-APPEAL-FAILURE TO TIMELY MOVE TO VACATE APPRAISERS AWARD
Truck renewed a policy of insurance covering the Louise Gardens of Encino Homeowners’ Association, Inc. thirty-unit condominium. The units were damaged during the Northridge earthquake. There was a dispute as to the amount of damage, and an appraiser was selected by Truck. In accordance with the Insurance Code the policy provided that, when there is a disagreement between the insurer and the insured as to the amount of the loss, then either party may demand an appraisal. Once that demand has been made, then each party shall select a competent and disinterested appraiser and then they shall select a competent and disinterested umpire. The appraisers shall appraise the loss. If they cannot agree, then they will submit their differences to the umpire. Two out of three prevails. Homeowners challenged the appraiser selected by Truck, since he had performed 15 previous appraisals in Truck insurance matters. The lower court found that Truck's appraiser was not disqualified to act and the appraisal process went forward. Truck paid Homeowners the amount of the appraisal. Truck filed for declaratory relief. Homeowners did not seek to set aside the appraisal award, but filed a cross-complaint asserting that the appraisal award was insufficient, and related causes of action. Homeowners then filed a petition to confirm the earlier appraisal award, for the purpose of appealing the lower court refusal to remove the appraiser selected by truck. The lower court granted the petition and entered judgment confirming the matters determined by the appraisal. Homeowners then appealed the judgment.
HELD: An appraisal award may be vacated when the arbitrator was subject to disqualification. A motion to vacate the arbitration award must be made not later than 100 days after the date of service of a signed copy of the award upon the petitioning party. No application to vacate the award was ever made. Homeowners cannot now have the arbitration award confirmed and then appeal the appointment of the arbitrator. The undisputed record reflects that Homeowners received and accepted the benefits of the underlying arbitration award, failed to file any petition to vacate or correct that award, and then petitioned to confirm it. Homeowners may not now attack the award. With respect to Truck’s cross-appeal, the record reflects that there is still pending in the trial court a declaratory relief action filed by Truck which will resolve all of the issues between the parties not disposed of by our holding in this matter. Affirmed.
People v. Jones
Case No. B135269
California Court of Appeal, Second District, Division Six
CRIMINAL-FELONY MURDER RULE-INSTRUCTIONS-MISDEMEANOR VEHICLE CODE VIOLATION DOES NOT SUPPORT FELONY MURDER RULE
Jones was hired by an automobile dealer. He took a vehicle without permission and drove off. When found by the dealer he refused to return the vehicle and drove off. The police were called and chased Jones at excessive speed through Long Beach. During the chase there was a collision with a police vehicle. Eventually he struck and killed a man walking with a cane. The air bags went off and he abandoned the vehicle before he was caught. He was tried for second degree felony murder and implied malice murder. The jury was instructed on express and implied malice and told that it need not agree on the theory of murder. Jones was convicted of second-degree murder, evading an officer causing death, and related offenses.
HELD: A conviction under the felony-murder doctrine requires proof the defendant acted with the specific intent to commit the underlying felony, even if the underlying felony does not itself require specific intent. The flight from officers was a felony only because it caused the death of a pedestrian. Absent resulting death or serious bodily injury, there is no felony and the underlying offense is a misdemeanor. Accordingly, absent the specific intent to inflict the harm required to elevate the offense to a felony, Jones had no independent felonious purpose for application of the felony-murder doctrine. Because the purpose of the felony-murder rule is to deter negligent or accidental killings it does not apply where proof of actual malice is required. The jury was merely instructed that the defendant must have the specific intent to commit the Vehicle Code offense of evading the police, and that the killing could be unintentional or accidental. This would improperly allow a conviction for murder based upon his intent to commit a misdemeanor violation of the Vehicle Code. The instruction was prejudicial. Reversed the second degree murder conviction. Affirmed the other convictions.
Ramos v. Countrywide Home Loans
Case No. D033669
California Court of Appeal, Fourth District, Division One
CIVIL-DETERMINATION OF ATTORNEY FEES-RECORD ON APPEAL MUST SUPPORT ENHANCEMENT FACTORS APPLIED TO LODESTAR AMOUNT
Ramos filed a class action challenging excessive charges for various lenders' practices of placing replacement property insurance policies under a forced order program when a borrower's own property insurance had lapsed. His suit was one of nine nationwide. A settlement was reached before trial, which created a $3.2 million fund. The injunctive relief obtained was valued at $2.5 million. Attorney fees were left for court decision. The trial court used the lodestar method and added an enhancement multiplier of 2.5, which resulted in an award in excess of $2.1 million as fees, plus costs.
HELD: It is not enough for the parties to refer to the abuse of discretion standard and claim it has or has not been met, as was essentially the case at oral argument. Moreover, our task has been complicated by the terse nature of the trial court's ruling itself, which gives virtually no explanation for the basis of the substantially enhanced award of fees and costs here. Because it merely lists the enhancement factors used, without a more complete explanation of their applicability in this context, the order is subject to question regarding the factual basis of the exercise of discretion made. In considering the factors for enhancement of the lodestar amount double counting of factors should not be allowed to create a windfall. When all applicable factors are considered, no reasonable basis for the court's action is currently evident on this record, but solely with respect to the selection of this relatively large multiplier figure. Reversed and remanded for appropriate hearings and a new exercise of discretion, setting forth the factors considered in departing from the lodestar amount.
Bishop Creek Lodge v. Scira
Case No. E025547
California Court of Appeal, Fourth District, Division Two
CIVIL-APPEAL-INTERLOCUTORY DENIAL OF INJUNCTION IS NOT FINAL ORDER FOR APPEAL
Bishop Creek Lodge (BCL) bought real property from Hernandez. BCL believed that it would be the owner of a restrictive covenant effecting the property. It sought to enforce the covenant against Scira, or in the alternative for damages against Hernandez. The trial court found that the restrictive covenant had been sold before BCL bought the property and the record furnished constructive notice of the sale. The court left the issue of damages for trial. BCL appealed this ruling.
HELD: The relief granted by the trial court's ruling was in essence the denial of an injunction to enforce a restrictive covenant. While the grant of an injunction has been held to be sufficiently final for appeal, the interlocutory denial of a permanent injunction is not a sufficiently definitive final order refusing to grant an injunction within the meaning of the Code of Civil Procedure. A trial court may revisit its decision to deny a permanent injunction at any time until final judgment. Appeal dismissed.
United States v. Hinton
Case No. 99-10344
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-USE OF MAIL COVER TO INTERCEPT PACKAGE-VIOLATION OF POSTAL REGULATION DURING MAIL COVER IS NOT A CONSTITUTIONAL VIOLATION-DELIVERY BY GIVING OBJECT TO POST OFFICE-SUFFICIENCY OF EVIDENCE
Hinton violated his federal probation. Based on information from Social Security, officers placed a post office box under surveillance ("mail cover"). The officers were allowed to view the box from inside the mail sorting area. They observed a key to a postal delivery box for oversize packages in the box. The box contained a package, which was removed by the postal manager. The package was addressed to Hinton, with a return address of Ron Baldwin. Ron Baldwin is an alias of Hinton's. A yellow slip was put in the box directing Hinton to receive his package at the counter during regular hours. Hinton picked up his mail but did not redeem the yellow slip for his package. He was arrested. The postal inspector applied for and received a search warrant. The package was shipped by fourth class mail and had been x-rayed - revealing a revolver. Hinton's motion to suppress, based on seizure of the package at the time the yellow slip was substituted, was denied. Hinton was convicted of: (1) causing the delivery by mail of a revolver; (2) causing the delivery by mail of ammunition; and, (3) shipping and transporting a firearm in interstate commerce.
HELD: The word "delivery" simply means to give; transfer; yield possession or control of; make or hand over; to send to an intended destination. There was delivery within the meaning of the statute. The plain text of the statute dictates whether Hinton could be convicted of shipping the package. The fact that postal regulations prohibit a "mail cover" without the consent of the Chief Postal Inspector does not require that the evidence be suppressed. This was not a violation of a constitutional right. There is no expectation of privacy in the addresses on a package. The evidence was sufficient to convict. Affirmed.
Alarcon-Serrano v. Immigration and Naturalization Service
Case No. 99-70578
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-JURISDICTION-ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT-EXCLUSION OF RESIDENT ALIEN FOR CRIMINAL ACT-CONVICTION OF CRIMINAL ACT NOT REQUIRED FOR EXCLUSION ORDER
Alarcon-Serrano, a then-nineteen year old resident of Mexicali, Mexico, with lawful permanent resident status. He was arrested at the Calexico, California, border while driving a car carrying eighty-six pounds of marijuana concealed in a secret compartment. After a hearing he was ordered excluded from the U.S.
HELD: Under the Illegal Immigration Reform and Immigrant Responsibility Act there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed certain specified criminal offenses. A criminal conviction of the offense is not necessary for an exclusion order. Because an immigration officer had ample reason to believe that Alarcon-Serrano knowingly engaged in drug trafficking, we lack jurisdiction to consider Alarcon-Serrano's petition for review pursuant to IIRIRA. Petition dismissed.
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