Wasserman's Appellate Summaries
July 28, 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.
Greenfield v. Fritz
Case No. A086982
California Court of Appeal, First District, Division Four
TORTS-FRAUD-MISREPRESENTATION OF FINANCIAL STATUS OF PUBLIC CORPORATION-ACTION BY PERSONS WHO DID NOT SELL THEIR SHARES OF STOCK IN RELIANCE ON FALSE FINANCIAL REPORTS
Fritz Companies, Inc is a publicly traded corporation. On April 2, 1996 Fritz omitted material information about the financial prospects of the corporation. On July 24, 1996 Fritz revised its earnings downward and the shares dropped more than 55% in one day. Greenfield is a shareholder. He filed a class action against Fritz and several directors for fraud. The trial court sustained defendants demurrer to the complaint.
HELD: In California, fraud must be pled specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. Greenfield has not failed to satisfy the requirement of particularized pleading. His allegations are more than adequate. Misrepresentations concerning the same type of financial information at issue here have been accepted as fraudulent and actionable. There is no reason in either law or logic why the same result should not apply to a situation where corporate stockholders are fraudulently induced to retain or refrain from selling their shares. Experience may demonstrate that plaintiff’s cause of action entails difficulties or defects that outweigh its utility. If so, the matter may be reexamined. Problems of proof are not a concern at the pleading stage. Induced forbearance can be the basis for tort liability. Reversed as to fraud action, sustained in other respects.
People v. Perez
Case No. B126876
California Court of Appeal, Second District, Division Four
(Certified for publication with the exception of parts II-VI of the Discussion.)
CRIMINAL-WITNESS EVASIVE FORGETFULNESS-ADMISSION OF PRIOR INCONSISTENT STATEMENTS OF WITNESS
Perez and Aguilar were convicted of first degree murder and the special circumstance that the murder was committed by discharging a firearm from a motor vehicle intentionally at another person outside the vehicle with intent to kill. It was also found the crime was committed for the benefit of a criminal street gang and that Perez personally used a firearm. Each was sentenced to life imprisonment without the possibility of parole, plus two years for the gang enhancement, plus four years as to Perez for personally using a firearm. At the trial the chief eyewitness to the shooting repeatedly stated she did not remember in response to questions. Her prior statement and identification were admitted as prior inconsistent statements.
HELD: A trial witness’s deliberately evasive forgetfulness is an implied denial of prior statements, which creates inconsistency in effect and authorizes admission of the witness’s prior statements. The fact that the evasive answers are selective is not the criteria for denying admission into evidence. The Confrontation Clause is not violated by admitting an out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. Affirmed.
People v. Brown
Case No. B134828
California Court of Appeal, Second District, Division Four
CRIMINAL-PROSECUTORIAL MISCONDUCT-STATEMENT OF FACT NOT IN EVIDENCE-HARMLESS ERROR ANALYSIS
Hall was convicted of possession of a controlled substance. One of the arresting officers was not produced as a witness at the trial. The defense commented on the absence of the other officer. The prosecution responded by saying that the other officer's testimony would be repetitive and if there were anything else in his statement it would have been produced by Hall.
HELD: To the extent the prosecutor argued the defense could have called the other officer as a witness, his argument was proper. The prosecutor went too far when he told the jury the absent witness’s testimony would have been repetitive. This was misconduct. The fact that the trial court overruled an objection to the statement indicates that a request for a curative instruction would have been unavailing if made. A statement of supposed fact not in evidence is a highly prejudicial form of misconduct and is a frequent basis for reversal. If judged under a harmless-beyond-a-reasonable-doubt standard or whether there is a reasonable standard the Court could not conclude the error was harmless. Reversed.
Shaffery v. Wilson, Elser, Moscowitz, Edelman & Dicker
Case No. B139451
California Court of Appeal, Second District, Division One
TORTS-AN ATTORNEY DISCHARGED BECAUSE OF NEGLIGENCE MAY NOT SUE THE ATTORNEY RETAINED IN HIS PLACE TO CORRECT THE NEGLIGENCE OF THE FIRST ATTORNEY-AN ATTORNEY MONITORING THE WORK OF THE ATTORNEY OF RECORD MAY NOT BE SUED BY THE ATTORNEY OF RECORD FOR INDEMNIFICATION
A formed employee sued J&J for sexual harassment. It retained Shaffery as counsel until the deductible under its insurance policy was satisfied and then tendered the defense to its insurer, Lexington. There was coverage for sexual harassment, with a maximum of $1 million. Lexington continued Shaffery as attorney and retained Wilson, Elser. Moscowitz, Edelman & Dicker as a monitoring counsel. The employee's offer to settle for $400,000 was rejected. The employee received a verdict of $2.75 million. J&J fired Shaffery and its new counsel settled for $2.75 million. J&J then sued Lexington, which settled for $2.9 million. Lexington then sued Shaffery, who cross-complained against WEMED, on the grounds that WEMED failed to properly oversee his work. WEMED's demurrer was granted.
HELD: A lawyer sued for professional negligence does not have the right to seek indemnity from another lawyer subsequently retained by the suing client in the same matter on the theory that the second lawyer's negligence enhanced rather than reduced the initial loss. A cross-complaint will not be permitted where an attorney sued for malpractice by a former client seeks indemnification from a successor attorney hired by the client to extricate him or her from the situation allegedly caused by the first attorney. If WEMED was not representing J&J at all and was only monitoring the harassment case for Lexington, then WEMED cannot be sued for indemnity by Shaffery. If WEMED was in some ephemeral fashion representing J&J as well as Lexington, that tripartite relationship cannot support a claim for indemnity for the same reasons that a successor lawyer cannot seek indemnity from a predecessor lawyer. Affirmed.
Andrews v. Superior Court/Thomas
Case No. B140746
California Court of Appeal, Second District, Division Four
CIVIL-SANCTIONS IMPOSED ON ATTORNEY-LIMITATION ON INHERENT POWER OF COURT TO IMPOSE A SANCTION FOR PAYMENT OF FEES
Andrews represented Wegricht in her suit against her insurer. A motion to compel discovery by Wegricht was referred to a discovery referee. The referee made his findings. The trial court granted defendant's motion for summary judgment and sua sponte, without prior notice to the parties, took up Wegricht’s objections to the referee’s findings and recommendations on the motion to compel. At the conclusion of the hearing, the trial court awarded discovery sanctions against Andrews individually in the amount of $2,275. The court fixed the discovery referee’s fees at $4,200 and ordered Wegricht to pay $3,500 and defendants to pay $700. It also ordered Andrews to pay his client’s share of the referee’s fees.
HELD: The Legislature had codified the inherent powers which all courts possess to enable them to carry out their duties into section 128 of the Code of Civil Procedure. Trial courts the power to impose monetary sanctions under specific situations. The award of fees is not authorized by this statute. It would be both unnecessary and unwise to permit trial courts to use fee awards as sanctions apart from those situations authorized by statute. If an attorney’s conduct is disruptive of court processes or disrespectful of the court itself, there is ample power to punish the misconduct as contempt. The trial court did not purport to base its order that petitioner pay his client’s share of the referee’s fees on either of these two sanction provisions. There may be circumstances in which it is appropriate to order the attorney for a party to bear the expense of a discovery referee’s fees as a monetary sanction under other statutory authority. Mandate granted directing the court to vacate its order requiring Andrews to pay his client’s share of the referee’s fees.
People v. Brown
Case No. F033118
California Court of Appeal, Fifth District
CRIMINAL-INSTRUCTIONS-DEFENSE OF TEMPORARY POSSESSION OF WEAPON IN PENAL INSTITUTION IS NOT AN AVAILABLE DEFENSE
Brown was convicted of, possession of a weapon by a prisoner. The trial court refused an instruction of temporary possession of a weapon for the purpose of disposition.
HELD: The factors which may militate toward temporary possession for disposal purposes or for the protection of others as recognized by case law do not apply in a penal institution. Affirmed.
United States v. Timbana
Case No. 97-30001
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-APPEAL-SENTENCING-DISCRETION FOR DOWNWARD DEPARTURE IN SENTENCING-INEFFECTIVE COUNSEL-COMPETENCY OF DEFENDANT
Timbana pleaded guilty to the crime of second-degree murder as part of a plea agreement. His attorney, Mr. Whittier asserts that Timbana requested that this court vacate the district court's sentencing decision on the ground that it abused its discretion in failing to grant Timbana a downward departure from his applicable range under the United States Sentencing Guidelines. Mr. Whittier informed this court that he believed that this issue was not appealable. Nevertheless, Mr. Whittier argued that the district court abused its discretion in denying a downward departure based on evidence in the pre-sentence report that would support findings that Timbana's behavior was aberrant, that he suffered from physical and mental impairments, and that his conduct was provoked by the victim. It was also noted that Timbana had suffered a traumatic brain injury, is confined to a wheelchair due to paralysis on his left side, is severely impaired on his right side, and has an I.Q. of approximately 72. The district court entered into an extended dialogue with Timbana regarding his rights and sentencing procedure before accepting his plea of guilty. Timbana asserted in his appeal that the court abused its discretion in not allowing a downward departure in his sentence. Timbana later filed a pro se brief asserting ineffective counsel and other matter.
HELD: The record shows that Timbana was competent to enter a guilty plea and that he did so knowingly and voluntarily following a plea proceeding that was consistent with Rule 11. Many of the arguments raised in his briefs are based on assumptions of a lack of competency or culpability that find no support in the record. Questions regarding his counsel's representation, and whether Timbana understood the nature of the plea proceedings, or his right to a trial based on a claim of self defense, must await consideration another day, should Timbana file a motion to vacate his guilty plea. Affirmed.
United States v. Webb
Case No. 99-30155
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FEDERAL JURISDICTION OVER CERTAIN CRIMES COMMITTED BY AMERICAN INDIANS ON INDIAN RESERVATION LAND
Webb, a Native American, entered a conditional plea of guilty to two counts of sexual contact with a minor. The acts occurred on allotted land within the boundaries of the Nez Perce Reservation in Idaho. The government asserted jurisdiction, based on certain offenses committed by Indians within Indian country. The boundaries of the reservation were established by an 1863 Treaty with the Nez Perces. The parties agree that the land passed into fee simple ownership in 1908. The district court found that the reservation was not diminished by the allotment and cession of lands within the 1863 boundaries because there was no evidence that either the Nez Perce or the United States intended a diminishment.
HELD: Indian country means all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. Webb failed to show that in the process of reducing the Nez Pierce reservation from its original 13 million acres to 750,000 acres, then providing for the sale of certain portions of the land to non Indians and granting certain land in fee to Indians, that it was specifically intended either to terminate the entire reservation, or to diminish it not just by the surplus lands sold to the United States for purchase and settlement by whites. Affirmed.
United States v. Bennett, et al.
Case No. 97-50605
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-AFFIDAVITS FOR AUTHORIZATION OF WIRETAP-FRANKS HEARING
In an investigation of Stanley's suspected drug distribution operation law enforcement officials used confidential informants and an undercover officer. They also conducted physical surveillance of Stanley, installed pen registers on two telephone lines, analyzed toll records, and monitored hand-to-hand drug sales by Stanley. The government also obtained a court order authorizing wiretap surveillance of two telephone lines. The affidavits for the wiretap omitted were details about a key government informant's past history of lying under oath in previous cases, lying to federal agents about his prior arrest history, and failing to pay income taxes. The district court refused a request for a hearing on the issue. Six persons were indicted for a conspiracy to distribute cocaine and other offenses. Bennett and the ringleader, Stanley entered conditional guilty pleas to conspiracy to commit interstate murder-for-hire resulting in death. The others pleaded guilty of possession and conspiracy to distribute various controlled substances. All of the defendants challenge the district court's denial of their motion to suppress wiretap evidence.
HELD: To establish the necessity of a wiretap, the application for the tap must provide a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. The mere attainment of some degree of success during law enforcement's use of traditional investigative methods does not alone serve to extinguish the need for a wiretap. The Court concluded upon review of the facts that the government satisfied the necessity requirement. The interception of the murder for hire plot was also sufficiently revealed in the government affidavits to extend the wiretap. A Franks hearing is required only if a defendant makes a substantial preliminary showing that the affidavit contained intentional or recklessly false statements, and that the affidavit purged of its falsities would not be sufficient to support a finding of probable cause. This showing was not made. Affirmed.
United States v. Enas
Case No. 99-10049
U.S. Court of Appeals for the Ninth Circuit
ORDER
Ordered that the case be reheard by the en banc court and the prior opinion is decertified.
Wasserman's Archived Appellate Summaries
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