Wasserman's Appellate Summaries
August 9, 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.
Groom v. Health Net
Case No. B131271
California Court of Appeal, Second District, Division Four
CIVIL-DELAY IN SEEKING CONTRACTUAL ARBITRATION WITHOUT PREJUDICE IS NOT A WAIVER OF THE RIGHT TO COMPEL ARBITRATION
Groom sued Health Net for failing to provide treatment that would have prevented a stroke. Health Net demurred to the complaint and while a ruling on the demurrer was pending initiated arbitration. Health Net demurred to the next three amendments of the complaint and then moved to compel arbitration. The trial court denied the motion, on the ground of waiver.
HELD: A party to an arbitration agreement may by conduct waive its right to compel arbitration. There is no single test for the type of conduct that may waive arbitration rights, but the conduct must have caused prejudice to the opposing party. Mere delay in seeking a stay of the proceedings without some resultant prejudice is not sufficient. Health Net’s participation in litigation by way of demurrers did not, in the absence of prejudice to Groom, waive Health Net’s right to enforce the arbitration agreement between the parties. Reversed.
Whitfield v. Heckler & Koch
Case No. B134247
California Court of Appeal, Second District, Division Four
PERSONAL INJURY-ULTRAHAZARDOUS PRODUCT-FIREARM MANUFACTURE
Whitfield is a Los Angeles police officer badly injured in a notorious shootout with two individuals wearing full body armor. He sued Heckler & Koch on the theory of ultrahazardous products liability and related cause of action. H&K's demurrer to the complaint was sustained.
HELD: The act of discharging a firearm has previously been held not to constitute an ultrahazardous activity. The Court found that it would be unwise to adopt a broad new theory of recovery which would ultimately make courts and juries the arbiters of the merit of every consumer product in the market. Such issues should be resolved by the appropriate legislative bodies. The Court also rejected liability based on product defect and negligence. Affirmed.
In Re: Kamelia S./Los Angeles County Department Of Family Sevices v. Derek S.
Case No. B135000
California Court of Appeal, Second District, Division Four
FAMILY LAW-DISENTITLEMENT TO RELIEF FROM AN ORDER WHEN PETITIONER IS IN CONTEMPT OF THE COURT ORDER
Kamelia was made a dependent of the court and ordered her to reside with the father, Derek and the mother, Sonya C., was to have monitored visits with the child. Later the Department of Children and Family Services petition to place the child in foster care was granted. Derek appealed. While this appeal was pending he absconded with the child.
HELD: The abduction of the minor child not only violates the orders of the juvenile court, it frustrates the court-approved visitation of the minor by her mother and the objective of the dependency law. The doctrine of disentitlement is applicable to Derek's conduct, requiring dismissal of the appeal. One may not obtain review of the juvenile court’s order and at the same time be in contempt of the very order from which he appeals. Appeal dismissed.
San Gabriel Valley Water Company v. Hartford Accident And Indemnity Company
Case No. B135120
California Court of Appeal, Second District, Division Two
INSURANCE-STATUTORY DUTY TO PAY FOR INDEPENDENT COUNSEL WHEN INSURER RETAINS A RESERVATION OF RIGHTS-POLICIES WHICH PREEXISTED THE STATUTE ARE SUBJECT TO THE STATUTORY PROVISIONS-A SINGLE RATE OF HOURLY COMPENSATION TO INDEPENDENT COUNSEL IS TO BE SHARED AMONG MULTIPLE INSURERS
The San Gabriel Valley Water Company was sued for providing contaminated water over a period of time. It had several policies covering liability over the period. The insurers agreed to defend under a reservation of rights and agreed that Valley Water was entitled to independent counsel, as provided by statute. The insurers only agreed to pay a lower hourly rate than the billing rate of the firm selected by Valley Water to defend it. Valley Water sought declaratory relief relating to the amount each insurer should contribute for the fees and whether policies issued before the statute were subject to contribution. The trial court held that the pre statue policies were subject to payment and the hourly rate was subject to arbitration, if the parties could not agree.
HELD: A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute. The obligation to pay attorney fees arose after the statute was enacted and does not alter rights, obligations, acts, transactions and conditions that are performed or exist prior to the adoption of the statute. The statute also imposes a "cap" on fee rates payable that applies to all defendants collectively. Affirmed.
In Re: Melvin A./Los Angeles County Department Of Family Sevices v. Maria L.
Case No. B136038
California Court of Appeal, Second District, Division Four
FAMILY LAW-STAY OF TERMINATION ORDER-HARMLESS ERROR IN STAYING TERMINATION ORDER FOR EIGHT MONTHS
The minor children, Melvin and Xena were declared dependents of the juvenile court and placed with the paternal grandmother. At the permanency review hearing reunification services were terminated and the court set a selection and implementation hearing. The court ordered that parental rights to Melvin and Xena were terminated but stayed that order, indicating the stay could be lifted when the Department study was completed. No visits were ordered. It was eight months before the study was completed and the stay lifted.
HELD: It was error for the trial court to order appellant’s parental rights terminated but indefinitely stay that order, leaving appellant in limbo as to the status of the termination order and her ability to immediately appeal that order. This action by the court was inconsistent with the fundamental policy of dependency law, which seeks to resolve cases expeditiously. There is no statutory authority to support the juvenile court’s issuance of the stay of the termination order. The trial court abused its discretion by staying the order terminating parental rights, thus delaying an appeal from that order and consideration of the petition for adoption. The Court found this error to be harmless. Other issues were not timely raised and dismissed. Affirmed the order terminating parental rights.
United States v. Carter
Case No. 99-50388
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-ENHANCEMENT BASED ON PRESENTENCE REPORT-FINDINGS REQUIRED ON DISPUTED FACTS IN PRESENTENCE REPORT
Carter pled guilty to one count of conspiracy to counterfeit fraudulent securities. The district court enhanced Carter's base offense level by three levels for a managerial or supervisory role in the offense, and by an additional twelve levels because the amount of loss was greater than $1,500,000. The court considered the total amount of loss from the conspiracy, not just the portion of the loss that occurred prior to Carter's arrest.
HELD: A finding that a sentence enhancement is appropriateordinarily does not require specific fact-finding. More is required when a defendant has contested specific factual statements made in the PSR. The court must rule on any objections, take evidence if necessary and make findings on the controverted matter. Sentence vacated and remanded.
Baker v. City of Blaine
Case No. 98-35378
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-ORDER AND NEW OPINION -HABEAS CORPUS-VIOLATION OF CLEARLY ESTABLISHED FEDERAL RIGHT REQUIRED-WAIVER OF RIGHT TO COUNSEL-NO RIGHT TO COUNSEL AT ARRAIGNMENT
The opinion filed March 6, 2000 and reported at 203 F.3d 1138 is withdrawn and a new opinion was filed simultaneously with the order. Baker was arrested in Blaine, Washington on charges of driving without a valid operator's license, driving under the influence of alcohol and obstructing a public officer. He pleaded guilty to the DVOL charge and was convicted of the other two by jury trial, at which he represented himself. His state court appeal, on the ground that he had not validly waived his Sixth Amendment right to counsel, was resolved against him. The Washington Supreme Court ruled that Baker's arraignment was not a critical stage of the proceedings to which the right to counsel attached. His habeas corpus petition to the district court was dismissed.
HELD: The record demonstrates that the findings, that Baker was fully advised of his right to counsel and that he, Baker, knowingly and intelligently waived his right to counsel, were not an unreasonable application of clearly established federal law. The district court did not err in applying the deferential standard of review. Affirmed.
Wasserman's Archived Appellate Summaries
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