Wasserman's Appellate Summaries
August 4, 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.
Peerless Lighting v. American Motorists Insurance
Case No. A082975
California Court of Appeal, First District, Division Three
INSURANCE-POLICY COVERING ADVERTISING INJURY DOES NOT EXTEND TO THE DESIGN OF A PRODUCT FOR A SINGLE PURCHASER UNDER A COMPETITIVE BIDDING PROCESS
Peerless is a manufacture of lighting equipment. It modified a standard lighting fixture for the purpose of meeting the specifications of General Motors to be installed in a new plant. A competitor advised Peerless before the contract was awarded that the modified lighting fixture infringed its patent and an infringement pursuant to the Lanham Act. The competitor sued, alleging that its product had a unique decorative image that is inherently distinctive and which identifies the competitor's goods and distinguishes them from goods of others ("trade dress") and has acquired a secondary meaning. American Motorists Insurance had issued a one-year Commercial General Liability policy to Peerless. The policy provided coverage for "‘Advertising Injury’ caused by an offense committed in the course of advertising your goods, products or services." The policy defines "Advertising Injury" as an injury "arising out of one or more of the following offenses: oral or written publication of material that slanders or libels a person or organization; oral or written publication of material that violates a person’s right of privacy; misappropriation of advertising ideas or style of doing business; infringement of copyright, title or slogan." AMICO rejected the tender, stating that the claim not meet the definition of ‘Advertising Injury’ and the ‘Advertising Injury’ alleged did not occur in the course of advertising Peerless goods, products or services. Peerless settled the competitor's suit. Peerless sued AMI. The trial court granted summary judgment in favor of Peerless, on the ground AMICO had a duty to defend as a matter of law. After a bench trial the court concluded AMICO had no duty to indemnify Peerless for the $195,000 it paid to settle the underlying suit.
HELD: No potential for coverage existed and no duty to defend ever arose. The term "advertising" as used in the policy does not include an effort to sell, through a competitive bidding process, a product that was specifically manufactured for a single customer to meet the needs of a specific project. Reversed the order granting summary judgment. Affirmed the judgment after trial finding no duty to indemnify and remanded.
In Re Maria S./The Los Angeles County Department of Children and Family Services v. Lillian S.
Case No. B135717
California Court of Appeal, Second District, Division Four
FAMILY LAW-TERMINATION OF PARENTAL RIGHTS-CLEAR AND CONVINCING EVIDENCE OF FAILURE TO COMPLY WITH CASE PLAN
Lillian S. gave birth to Maria S. while in jail. The Department of Children and Family Services detained Maria and filed a Welfare and Institutions dependency petition. The petition was sustained and reunification services were ordered. At the jurisdictional/dispositional hearing the court declared Maria a dependent of the court and ordered Lillian S. to attend approved drug rehabilitation with random drug testing and parent education classes. At the six month hearing the court approved the DCFS plan and set a review hearing. Meanwhile Lillian was released and detained for a deportation hearing, and was later deported. At the next review hearing the court concluded that the plan was appropriate, but Lillian had not complied and ordered a permanency hearing. At the permanency hearing Lillian was not able to attend. The court ordered parental rights terminated.
HELD: It is important to note at the outset that the court was not requested to and did not make a finding that it would be in the best interest of Maria that reunification services not be provided. Rather, DCFS recommended and the court adopted a plan for reunification. Dependency law requires a good faith effort to provide reasonable reunification services responding to the unique needs of each family. Courts may not initiate proceedings to terminate parental rights unless they find adequate reunification services were provided to the parents, even when the parents are incarcerated. The record here reflects that the court made findings by clear and convincing evidence that the case plan was appropriate, that reasonable services had been provided, and that Lillian had failed to comply with court orders and the case plan. The record contains no evidence whatsoever to support these findings. Reversed and remanded.
Filarsky v. Superior Court/City of Manhattan Beach
Case No. B139018
California Court of Appeal, Second District, Division Three
OTHER-PUBLIC RECORDS ACT-EXEMPTION FROM DISCLOSURE OF PEACE OFFICER'S PERSONNEL RECORDS-PROCEDURE-THE CITY MAY INITIATE A DECLARATORY RELIEF ACTION TO DETERMINE RIGHT TO ACCESS RECORDS
HELD: Nothing in the declaratory relief statutes prevented the City in this case from filing a declaratory relief action with regard to its prior decision denying disclosure under the CPRA. The Code of Civil Procedure provides that any person interested under a written instrument, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action for a declaration of his or her rights and duties. Public records may be exempt from disclosure under the CPRA when, the disclosure of which is exempted or prohibited pursuant to federal or state law, including but not limited to, provisions of the Evidence Code relating to privilege. The Penal Code provides that, peace officer personnel records and records maintained by any state or local agency, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to the Evidence Code. Marshall’s employment application and resume, and the City’s investigation of Marshall’s background as part of the application for employment are confidential police personnel records and not subject to disclosure. The application for a writ of mandate was denied.
Glue-Fold v. Slautterback Corporation
Case No. A088453
California Court of Appeal, First District, Division Four
CIVIL-STATUTE OF LIMITATIONS-COMMENCEMENT TIME FOR RUNNING OF STATUTE-INTERRUPTED DISCOVERY-REASONABLE DILIGENCE IN INVESTIGATING POSSIBLE CLAIM
Glue-Fold developed a new process for applying glue to paper products intended for mailing. Glue-Fold approached Slautterback Corporation for assistance in the actual production of the new product. Glue-Fold was required to execute a non-disclosure/confidentiality agreement. Slautterback successfully produced the new product. In the fall of 1992 it asked Glue-Fold if it could market the product and was refused permission. In October-November of 1992 Slautterback sold the new product to a firm in Burbank, and had repeat sales in February of 1993. The product was sold to a Minnesota firm in September of 1993. The product also appeared in Slautterback’s product catalog beginning in 1993. In 1999 Glue-Fold sued for breach of the non disclosure agreement and the Uniform Trade Secrets Act and unfair competition. Slautterback's motion for summary judgment, on statue of limitations grounds was granted.
HELD: The UTSA has a three year statute of limitations for bringing an action. The Act rejects a continuing wrong approach to the statute of limitations but delays the commencement of the limitation period until an aggrieved person discovers or reasonably should have discovered the existence of misappropriation. Glue-Fold alleged in its complaint that on about August, 1995," it discovered that Slautterback had begun advertising the new product for sale. The Court concluded that the fact that Slautterback ceased its marketing activities of the new product in 1995 and did not begin them again until a year later did not effect the accrual of the cause of action at the time of the first discovery. With respect to the discovery rule, relating the four year statute of limitations claims for breach of contract and unfair competition, the Court finessed the issue by finding that, Glue-Fold did not show that it exercised reasonable diligence in investigating, or that earlier efforts to determine the breach would have been fruitless. Affirmed.
Greenfield v. Fritz Companies
Case No. A086982
California Court of Appeal, First District, Division Four
ORDER
Minor modification to opinion filed herein on July 28, 2000, not affecting the judgment.
Allbillo-Figueroa v. Immigration and Naturalization Service
Case No. 98-71239
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-JURISDICTION-COUNTERFEITING AS AN AGGRAVATED PENALTY-ILLEGAL IMMIGRATION AND NATIONALITY ACT BARS JUDICIAL REVIEW OF ORDER OF DEPORTATION
Allbillo entered the U.S. as a legal immigrant. Four years later he pled guilty to possession of counterfeit obligations of the United States. The BIA held that the violation was an aggravated felony" for the purposes of the Immigration and Naturalization Act and remanded the case. The Immigration Judge found Allibillo deportable and denied his application for relief from deportation.
HELD: The transitional rules for application of the Illegal Immigration and Immigrant Responsibility Act provides that there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in the Immigration and Nationality Act. The charge for which Allbillo was convicted is an aggravated penalty and judicial review is prohibited. Petition dismissed for lack of jurisdiction.
Gilmore/United States, Intervenor v. State of California v. Enomuto, California Department of Corrections
Case No. 98-15198
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-PRISON LITIGATION REFORM ACT-TERMINATION OF PREVIOUS CONSENT DECREES RELATING TO PRISON ADMINISTRATION
Plaintiffs challenge the provisions of the Prison Litigation Reform Act, which terminated consent decrees that resulted in ongoing court monitoring of prison administrative practices relating to prisoners. The consent decrees were ordered terminated by the lower court.
HELD: The Court extensively reviewed the development of prisoners rights and the use of consent decrees which involved continuing court supervision of the implementation of court orders made regarding prison conditions. The Prison Litigation Reform Act was enacted to eliminate the consent decrees and restrict court intervention in prison administration, especially in granting prospective relief. The PLRA does not offend due process or equal protection principles. The PLRA establishes a comprehensive set of standards to govern prospective relief in prison conditions cases. The PLRA creates a more exacting standard for federal courts to follow, but does not eviscerate the court's equitable discretion. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Reversed the termination of prospective relief and remanded.
In re Spirtos, Debtor/Thelma Spirtos v. Moreno
Case No. 98-55101
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-DURATION OF BANKRUPTCY STAY-CALIFORNIA TEN YEAR EXPIRATION OF JUDGMENT STATUTE-TOLLING UNTIL 30 DAYS AFTER BANKRUPTCY TERMINATED
Moreno recovered a judgment against Dr. Basil Spirtos. The doctor declared bankruptcy and was granted a discharge in April 1996, one month before his death. The bankruptcy court allowed only one of the three claims Moreno filed. Thelma Spirtos, Basil's ex-wife, then objected to Moreno's claim as party in interest. She asserted that the judgment was over 10 years old and barred under the California statute of duration, which expired in 1993, after Basil had filed for bankruptcy but before the claim was allowed.
HELD: To keep the judgment from expiring Moreno had to file for renewal. The limitations period does not expire until 30 days after the end of the automatic stay imposed by the filing of the bankruptcy. The automatic stay remains in force with respect to property of the estate until such property is no longer property of the estate, an event that has not yet occurred. So long as there are assets in the estate the stay remains in effect. Affirmed.
Thomas/Baker v. Anchorage Equal Rights Commission v. Haley, Director
Case No. 97-35220
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-RIPENESS OF ISSUES FOR DECISION-PREMATURE CHALLENGE OF STATUTE
Thomas and Baker own residential rental properties in Anchorage, Alaska. Both are devout Christians. Central to their faith is a belief that cohabitation between an unmarried man and an unmarried woman is a sin. A state statue and city ordinance provide that any refusal to rent on the basis of marital status is prohibited. They challenge the statute on First Amendment free exercise of religion and free speech grounds. The district court enjoined enforcement of the statute and ordinance.
HELD: This pre-enforcement challenge presents a threshold issue of justiciability. No prospective tenant has ever complained to the landlords, let alone filed a complaint against them. Neither the Alaska State Commission for Human Rights nor the Anchorage Equal Rights Commission has ever initiated an investigation into the landlords' rental practices or commenced a civil enforcement action or criminal prosecution under the challenged laws. Whether viewed through the lens of standing or ripeness, resolution of the First Amendment issues is premature. Vacated and remanded with directions to dismiss.
James v. Giles/Lungren, Attorney General
Case No. 98-56751
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EXTENSION OF TIME TO AMEND PETITION FOR WRIT OF HABEAS CORPUS-DENIAL OF CERTIFICATE OF APPEALABILITY BY DISTRICT COURT
James is a state prisoner serving three consecutive life sentences for kidnapping and robbery. The district court dismissed James' petition for federal habeas review without prejudice, because it contained both exhausted and unexhausted claims. The district court denied a request for an extension of time and a certificate of appealability. James may be precluded from deleting his unexhausted claims and refiling because the one-year statute of limitations for filing an original habeas petition appears to have run.
HELD: The district court's denial of the extension of time to file his writ, without offering James the opportunity to amend his petition by deleting the unexhausted claims and without discussion of any factor except the purported lack of merit of James' appeal, was in effect (and probably in intention) a dismissal for mootness. Its validity as such depends upon the validity of the district court's conclusion that James was not entitled to a certificate of appealability, i.e., James had not made a substantial showing of the denial of a constitutional right. A federal habeas petitioner has a right to amend a mixed petition to delete unexhausted claims as an alternative to suffering a dismissal. There are no jurisdictional infirmities in the certificate of appealability issued by this court, and that James' appeal is properly before the Court, if it is timely. Vacated and remanded.
Lambright v. Stewart
Case No. 96-99020
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-CRITERIA FOR GRANT OF A CERTIFICATE OF APPEALABILITY-CERTIFICATE OF PROBABLE CAUSE
Lambright's petition for a writ of habeas corpus was denied and a Certificate of Appealability was denied. On application to the Ninth Circuit a Certificate of Probable Cause was granted.
HELD: The determination that the petitioners needed a CPC, rather than a COA, to proceed with their appeal was incorrect. When a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of Antiterrorism and Effective Death Penalty Act), the right to appeal is governed by the certificate of appealability. The COA requirements are now codified. AEDPA permits a court to issue a COA when the applicant has made a substantial showing of the denial of a constitutional right. A COA, unlike a CPC, requires the petitioner to meet the substantial showing standard with respect to each issue he seeks to raise on appeal. The petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further. In a capital case the nature of the penalty is a proper consideration in determining whether to issue a COA. Five issues were found to meet the requirements for issuance of a COA. A COA was granted in part and denied in part.
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page