Wasserman's Appellate Summaries
August 1, 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.
Martinez v. Bank of America
Case No. B116311
California Court of Appeal, Second District, Division Three
(Certified for publication with the exception of part V(B).)
TORTS-DEATH OF CHILD CAUSED BY DOGS ON RESIDENTIAL PREMISES-DUTY OF OWNER OF PROPERTY-OWNER NOT IN POSSESSION OF PREMISES-KNOWLEDGE OF DANGEROUS CONDITION-DUTY TO INSPECT
The Bank of America purchased property in a foreclosure sale. The bank then commenced an unlawful detainer proceeding to attempt to evict the former owner. While the bank’s unlawful detainer proceeding was pending, Martinez’ young son went on the property, and was attacked by dogs owned by the former owners, resulting in the child's death. Martinez sued the bank for wrongful death. Summary judgment was for the BOA.
HELD: A landlord has a duty to exercise reasonable care in the inspection of his commercial property and to remove a dangerous condition, which includes a dog, from the premises, if he knew, or in the exercise of reasonable care would have known, the dog was dangerous and usually present on the premises. Martinez' opposition to the summary judgment motion created no triable issue of fact as to whether the bank had actual knowledge of the dangerous condition of the property. The pending unlawful detainer proceeding, and the former owners’ refusal to relinquish possession and control of the property, meant that the bank did not have the authority, ability, or power to repair defects on the property. Because of this lack of knowledge and of power the bank owed no duty to plaintiffs. Affirmed.
Jiminez v. Superior Court/T.M. Cobb Company
Case No. D034723
California Court of Appeal, Fourth District, Division One
TORTS-STRICT LIABILITY OF MANUFACTURER OF COMPONENT USED IN A MASS RESIDENTIAL DEVELOPMENT
Martinez owns a home in the Galleria subdivision of the Scripps Ranch area of San Diego. McMillin apparently was the developer of the Galleria subdivision. McMillan contracted with. Minnoch Supply Co. to supply and install windows and glass doors. The windows were manufactured by T.M. Cobb Company. The windows leaked and caused damage to the homes. Martinez filed a class action stating causes of action for strict products liability for defective design and manufacturing and negligence. The trial court granted Cobb's motion for summary adjudication on the strict liability cause of action, on the ground that a component part supplier in a mass residential development cannot be held strictly liable for damage which is caused to the home absent some special type of relationship.
HELD: A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury. The doctrine of strict products liability applies to all persons in the chain of distribution of a defective product, including manufacturers, wholesalers, and retailers. Unlike negligence, in which the focus is on the conduct of the tortfeasor, strict liability focuses on the product itself and holds the manufacturer and all entities and persons associated with the product liable if the product is defective. The doctrine applies to both product design and manufacturing defects. A manufacturer of a component that is subsequently installed in or otherwise integrated as part of a larger product may be subject to strict products liability if that component was defective at the time it left the manufacturer's possession. The manufacturer is in the best position to insure against losses suffered because of its defective products. Mandate issued directing the trial court to vacate the order granting summary adjudication.
People v. Brown
Case No. F033118
California Court of Appeal, Fifth District
ORDER-CRIMINAL-POSSESSION OF A WEAPON BY A PRISONER
Modification of opinion not affecting the judgment. The hard copy of the opinion filed herein on July 27, 2000, mistakenly omitted several lines of text.
Lujan-Armendaris/Roldan-Santoya v. Immigration and Naturalization Service
Case No. 96-70431
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ALIEN WHO HAS CONVICTION SET ASIDE UNDER STATE REHABILITATION STATUE/EXPUNGEMENT MAY NOT BE DEPORTED-FEDERAL FIRST OFFENDER ACT
Two longtime alien residents of the U.S. were found guilty of first time simple possession, and attempted simple possession, of narcotics, respectively. The INS sought deportation. Both petitioners have previously received the benefit of state rehabilitative statutes. In the state courts petitioners are no longer "convicted" under state law. Court found that there was jurisdiction to review the decision of the Board of Immigration Appeals decision upholding a deportation order, since the petitioners do not presently stand convicted of a crime within the meaning of the immigration laws, and they are not subject to removal.
HELD: The Federal First Offender Act was not repealed in whole or in part by the recent amendments to the immigration laws, and persons whose offenses would qualify for treatment under the First Offender Act but who are convicted and have their convictions expunged under state laws may not be removed on account of those offenses. The FFOA is a rehabilitation statute that applies exclusively to first time drug offenders who are guilty only of simple possession. Both before and after the passage of the Act, the schemes for rehabilitation of offenses under state law continued to serve as an important means of lessening the consequences of certain convictions, including avoiding deportations which would otherwise be excessively harsh. The removal orders were vacated.
United States v. Valensia
Case No. 99-10170
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-DUE PROCESS-PREPONDERANCE OF THE EVIDENCE FOR PROOF OF UNCHARGED CRIMES USED TO ENHANCE THE SENTENCE-HEARSAY STATEMENTS OF COCONSPIRATORS
Valensia pleaded guilty to conspiracy to distribute methamphetamine and to conspiracy to possess methamphetamine with the intent to distribute. The district court imposed a two-level enhancement for Valensia's role as a manager or supervisor in the conspiracy, and a two-level enhancement for the possession of a firearm in the course of the conspiracy. The trial court relied on statements made to police officers by Valensia's coconspirators in making the management enhancement.
HELD: The Due Process Clause is satisfied by the application of the preponderance of the evidence standard in making most factual determinations for sentencing purposes. The contested enhancements, based on uncharged acts or conduct, did not have an extremely disproportionate effect on the length of Valensia's sentence, which might require a clear and convincing standard for proof of the uncharged offense used as a sentence enhancement. Whether an enhancement results in an extremely disproportionate sentence depends on the disparity between the sentence that could have been imposed under the initial sentencing guideline range and the sentence actually imposed on a case-by-case basis, without relying on any single factor as controlling. In this case the court concluded that the statements of Valensia's coconspirators were accompanied by a sufficient indicia of reliability to merit consideration by the district court notwithstanding the fact that the declarant's arguably had an interest in implicating Valensia. Affirmed.
Wasserman's Archived Appellate Summaries
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