Wasserman's Appellate Summaries
July 26, 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.
Bell v. Vista Unified School District
Case No. D033824
California Court of Appeal, Fourth District, Division One
CIVIL-REQUIREMENTS OF BROWN ACT FOR NOTIFICATION TO EMPLOYEE OF SCHOOL DISTRICT BOARD CONSIDERATION OF DISCIPLINARY ACTION AGAINST TENURED TEACHER-APPORTIONMENT OF ATTORNEY FEES REQUIRED
Bell had been a VUSD employee for 13 years and the only football coach in Rancho Bueno Vista High School's 11-year history. As a tenured instructor, his coaching assignment was separate and renewed annually each fiscal year. That assignment had been renewed on July 1, 1997, and was to expire on June 30, 1998. When Bell was contacted by the father of an Australian student wanting to have his son play American football, Bell reported the contact and referred the father to proper channels. When the son, John arrived in Vista his eligibility was referred to the California Interscholastic Federation. The CIF denied the request for eligibility on the grounds he was a fifth year senior and a transfer student and that Bell had violated the undue influence rule. When review of the decision was made by the CIF appellate panel, it placed the school's entire athletic program on probation for one year, suspended its membership in the CIF for the year, and ordered VUSD to review the matter and take whatever action it deemed appropriate regarding Bell. On October 16, the VUSD Board of Trustees held a special closed session board meeting to consider action to take in response to the CIF probation. It posted public notice describing the subjects to be considered at the meeting, including public employee discipline/dismissal/release. Bell received written notice late that morning of the meeting, specifically advising him the Board would discuss the issue of RBV's placement on probation for violating CIF Rule. The Board voted to permanently remove Bell from his "additional assignment" as football coach. Bell notified VUSD it had violated the Brown Act and requested it to cure or correct the violation. Later that same day, Bell filed his complaint for mandamus, injunctive relief and damages The trial court ruled that because specific notice was not given regarding a closed session to consider Bell's discipline or dismissal the action taken at the board meeting was null and void under the Brown Act. The court granted injunctive relief under the Brown Act and awarded Bell costs of $9,812.81 and fees of $147,862.00. The balance of Bell's claims were settled.
HELD: The Brown Act's requirement that public meetings be open ensures the public's right to attend meetings of local legislative bodies, subject to statutory exceptions. VUSD's Board is a legislative body of a local agency subject to the Brown Act. There is an exception for consideration of personnel actions, but the person subject to the consideration may request a public meeting. Bell was entitled to the required notice, so that he could put the matter in proper factual context, to clear his name and to avoid imposition of discipline. Although Bell did not allow VUSD sufficient time to respond to his notice of violation of the Brown Act, and filed his complaint the same day, this did not prejudice VUSD. The Brown Act provides the trial court with discretion to award court costs and reasonable attorney fees to the plaintiff in an action under the Act. Since only four of the fifteen causes of action asserted by Bell related to the Brown Act, the court should have apportioned the attorney fees. Reversed as to attorney fees. Affirmed in all other respects.
People v. Beltran
Case No. B131007
California Court of Appeal, Second District, Division Five
(Certified for publication with the exception of parts 1, 2, and 4 of Discussion.)
CRIMINAL-STRUCTURAL DEFECTS IN TRIAL-TRIAL ERRORS-HARMLESS ERROR-ENHANCEMENT FOR VIOLATION OF VEHICLE CODE EVASION OF POLICE OFFICER RESULTING IN GREAT BODILY INJURY-ENHANCEMENT FOR ACT WHICH IS ELEMENT OF CRIME FOR WHICH ONE IS CONVICTED
Police officers tried to conduct a traffic stop on a car, which they noticed had no rear license plate. Beltran, did not stop. After tossing a plastic bag filled with a white powder from the window he eventually collided with a car driven by 75-year-old Dong Park, who died a month later from his injuries. Beltran was convicted him of felony evasion of a pursuing peace officer and vehicular manslaughter. He was sentenced to 25 years to life term under Three Strikes, plus 10 years for the two Penal Code enhancements, which included a five year enhancement, relating to the felony evasion of a pursuing peace officer, was the infliction of great bodily injury on persons aged 70 or more. A concurrent term of 25 years to life was imposed for the vehicular manslaughter conviction. Restitution and parole revocation fines of $200 were also imposed.
HELD: Structural defects in a trial are reversible per se. These are the errors such as: total deprivation of the right to counsel at trial; trial before a judge who is not impartial; and, the giving of a constitutionally defective instruction on reasonable doubt. Trial errors, by contrast, are errors that occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether the error was harmless. Giving the CALJIC No. 17.41.1 instruction, that jurors should report a juror that refuses to deliberate in accordance with the law, even assuming giving the instruction was error, was harmless beyond a reasonable doubt. The five year enhancement for great bodily injury on persons aged 70 or more is proper, unless infliction of great bodily injury is an element of the offense of which he or she is convicted. The only basis for the enhancements is the conviction of evading a peace officer under the Vehicle Code, which is a misdemeanor, unless the offense is made a felony because the attempt to elude a peace officer proximately causes death or serious bodily injury to any person. Infliction of great bodily injury is an element of the felony offense of evading a pursuing peace officer. Since the enhancements were not proper, the custody credits limits were also incorrectly applied. Reversed, to the extent it imposed enhancements and limited Beltran’s presentence custody credits.
Kransco/International Insurance v. American Empire Surplus Lines Insurance
Case No. S062139
Supreme Court of California
ORDER
Modification of opinion herein, appearing at 23 Cal.4th 390, not affecting the judgment.
Cedic Development v. Warnicke
Case No. 99-15841
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-FEE ENHANCEMENT ABOVE LODESTAR AMOUNT-RISK OF NOT GETTING PAID
Cedic filed a voluntary petition in bankruptcy. After two other attorneys had withdrawn as attorney of record in Cedic's bankruptcy proceedings, by reason of failure of Cedic to pay agreed fees, Cedic persuaded the firm of Warnicke and Littler. Cedic agreed to pay its rates ranging from $125 per hour to $210 per hour for the senior partner. The rates were below the market rates for bankruptcy counsel with experience comparable to that of the Firm. The billing rate was subject to upward or downward adjustment at the discretion of the Firm, depending on ten enumerated factors. The Firm successfully and very favorably represented the bankruptcy in complex litigation. The bankruptcy court awarded the sum designated as the lodestar amount plus an enhancement of $10,000, based on the risk of not getting paid. The client appealed the $10,000 enhancement. The district court reversed the bankruptcy court award.
HELD: The risk created by a contingency fee does not justify an increase beyond the lodestar. This precedent is not controlling, because the risk of nonpayment by Cedic was not created by any contingency in the merits of the litigation but by the conduct of Cedic that suggested that it didn't like to pay its lawyers. Reversed the district court.
Wetzel v. Lou Ehler's Cadallac Group Long-Term Disability Program
Case No. 97-56437
U.S. Court of Appeals for the Ninth Circuit
INSURANCE-STATUTE OF LIMITATIONS-STATE STATUTE OF LIMITATIONS APPLICABLE-CALIFORNIA INSURANCE CODE PROVIDES FOR TIME IN WHICH CERTAIN ACTIONS MUST BE TAKEN BY CLAIMANT-FEDERAL LAW PROVIDES FOR TIME OF ACCRUAL OF CAUSE OF ACTION WHEN ERISA POLICY
Wetzel, as an employee of Lou Ehlers Cadillac, was a participant in the Lou Ehlers Cadillac Group Long Term Disability Insurance Program funded by Reliance Insurance. Reliance began paying monthly benefits to Wetzel in March 1992, retroactive to July 1991. A year later, Reliance notified Wetzel that it viewed his claim as psychiatric in nature and that benefits were payable only for a maximum of twenty-four months if a disability resulted from a mental or nervous disorder. Wetzel's benefits were discontinued in August 1993, after the 24 month period. Wetzel filed suit against Reliance and the Ehlers Plan on May 6, 1997. Summary judgment was for defendants, on statute of limitations grounds.
HELD: There is no specific federal statute of limitations governing claims for benefits under an ERISA plan, and the California state statute of limitations is applicable. The California Insurance Code is not technically statute of limitations, since it looks to the contract provisions to determine time limits, it also does not supply an accrual rule for purposes of applying a statute of limitations. Accrual of a federal action is under ERISA is determined by the application of a federal rule of accrual. Wetzel's claim did not accrue before the August 1993 letter, or at the latest, the clear rejection of his claim for benefits in October of 1993. Wetzel's action, filed in May 1997, was commenced within the four-year statutory limitations period. However, the policy provides that an action to recover benefits under the policy must be commenced within three years after the time written proof of loss is required and written proof of loss must be sent to the insurer within ninety days after the termination of the period for which the insurer is liable. Applying the contract terms in light of California law to Wetzel's case, cannot be done on the present record. Judgment vacated and remanded.
National Parks & Conservation Association v. United States Department of Transportation
Case No. 96-71268
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-LIMITED SCOPE OF JUDICIAL REVIEW OF ENVIRONMENTAL IMPACT STATEMENT-AIRPORT AND AIRWAY IMPROVEMENT ACT-TRANSPORTATION ACT
The FAA planed to repave the Kahului airport at Maui. It planned to strengthen the runway, extend it to 9,600 feet and make related infrastructure improvements. In response to concern expressed during the public phase of the environmental review about introduction of alien species into the area the FAA convened a Biological Assessment Technical Panel. The assessment proposed mitigation measures, but recognized that they were not foolproof. The Fish and Wildlife Service filed a report indicating no danger to endangered species as a result of the project. The Final EIS concluded that he potential impact of the project on the introduction rate of alien species, would be considered a significant cumulative impact. National Parks and Conservation Association is an environmental organization. It filed a petition for review of the FAA's approval of the expansion, asserting that the FAA violated the National Environmental Policy Act by failing to analyze the impact of the expansion on the introduction of alien, or non-indigenous, species into Maui. National further contends that the FAA violated the Airport and Airway Improvement Act, and the Transportation Act.
HELD: Judicial review of an EIS under NEPA is extremely limited. The review is simply to determine whether the EIR contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences of a challenged action. Given the volume of information in the EIS that addresses alien species, National Parks can hardly claim the FAA ignored the problem. Since no endangered species was identified as threatened by the project, the broad mitigation measures proposed in the EIS were appropriate. The FAA has made an informed decision and the Court cannot intervene. For the Transportation Act to apply, the project must "use" Haleakala National Park, a property protected by the Act. It was not demonstrated that the runway extension will so increase the rate of alien species introduction as to substantially impair Haleakala's economic or environmental value. The Airport and Airway Improvement Act does not require approval of the funding for the mitigation measures of the EIS. Petition denied.
United States v. Ceron-Sanchez
Case No. 99-10284
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-ENHANCEMENT OF SENTENCE FOR PRIOR CONVICTION OF VIOLENT FELONY-STATE CONVICTION OF AGGRAVATED FELONY-STATE OFFENSE REQUIRES VIOLENCE
In 1996, Ceron-Sanchez pleaded guilty to Attempted Aggravated Assault with a Deadly Weapon/Dangerous Instrument. In 1999 Ceron-Sanchez pleaded guilty to one count of Reentry After Deportation and was sentenced to 60 months. Ceron-Sanchez was assigned a base offense level of 8 under the Sentencing Guidelines. The court then increased the offense level by 16, which applies if the defendant previously was deported after a criminal conviction for an aggravated felony. The court then subtracted three levels for acceptance of responsibility, resulting in a total adjusted offense level of 21. His offense history placed him in a range of 57 to 71 months imprisonment. Since he had been deported four times previously the sentence was 60 months.
HELD: In deciding whether a defendant committed an aggravated felony, the question is whether the full range of conduct encompassed by the criminal offense constitutes an aggravated felony. The force necessary to constitute a crime of violence must actually be violent in nature. The state offense under which Ceron-Sanchez was convicted reaches only conduct that would constitute a crime of violence, driving a van with people in it in excess of 85 miles per hour and crashing the van. The sentencing factors were properly applied. Affirmed.
Bateman v. United States Postal Service
Case No. 99-15394
U.S. Court of Appeals for the Ninth Circuit
CIVIL-RELIEF FROM DEFAULT-EXCUSABLE NEGLECT
Bateman filed a civil rights action against his former employer, the U.S. Postal Service, alleging discrimination and retaliation. His attorney had an emergency taking him out of the country for several weeks. When his assistant tried to obtain a stipulated extension of several depositions and the government's motion for summary judgment, it was refused. The Postal Service filed its motion for summary judgment as planned on Friday, August 7 and noticed September 11 for the hearing date. This was 12 days after the attorney's return. The time for a response to the motion was on August 21, while the attorney was still out of the country. The attorney returned on August 29, but did not contact the court until September 14th. The district court granted summary judgment. The attorney then filed a Rule 60(b) motion on November 5, which the district court denied.
HELD: Rule 60(b)(1) of Civil Procedure provides that a court may relieve a party or a party's legal representative from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. Excusable neglect covers negligence on the part of counsel. The determination of whether neglect is excusable is an equitable one that depends on: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and, (4) whether the movant acted in good faith. The district court abused its discretion because it failed to conduct the required equitable analysis for granting or denying relief. After the Court conducted the equitable analysis it concluded that Bateman is entitled to Rule 60(b)(1) relief. Reversed and remanded.
Diamond v. City of Taft
Case No. 98-17253
U.S. Court of Appeals for the Ninth Circuit
ORDER-RESTRICTIVE ZONING OF ADULT BUSINESS
Amendment to opinion filed June 27, 2000, not affecting the judgment.
Wasserman's Archived Appellate Summaries
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