Wasserman's Appellate Summaries
September 5, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back 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.
Thorpe v. Long Beach Community College District
Case No. B138537
California Court of Appeal, Second District, Division Two
OTHER-CONFLICT OF INTEREST IN EMPLOYMENT WHEN SPOUSE MEMBER OF SCHOOL DISTRICT BOARD
Thorpe worked as an accountant for the Long Beach Community College District for many years. She was informed that she would not be eligible for a new management accounting position because her husband was a member of the Board of Trustees and this would create a prohibited conflict of interest. Her petition for a writ of mandate was denied.
HELD: The statute prohibits any public officers or employees from having any financial interest, direct or indirect, in any contract made by them in their official capacity or by any board or commission of which they are a member. As a board member her husband had a community property interest in the spouse’s contract with the school district, which implicates the board member’s financial interests.
Estate of McGuigan/Desmond v. Connell, State Controller
Case No. C030062
California Court of Appeal, Third District
PROBATE-RECOVERY OF ESCHEATED ESTATE-EXTRINSIC FRAUD-OMISSION OF KNOWN RELATIVE IN MOTION TO RECOVER ESCHEATED ESTATE
McGuigan died intestate. The estate escheated to the state. Six years later Desmond filed a motion to recover the escheated estate of the deceased. Her motion did not provide the required, detailed family history or a statement explaining why she was unable to provide one. Although Desmond was aware that the decedent had a son, her petition did not mention that fact. Geitner, the administrator of the McGuigan's son’s estate, brought a motion to vacate the ensuing judgment distributing the escheated estate on the grounds of mistake and extrinsic fraud. The trial court denied the motion.
HELD: Although the statute permits more distant heirs who file timely petitions to recover escheated property, over closer but unknown relatives, nothing in the statute suggests that the Legislature intended to reward those heirs who deliberately fail to identify heirs more deserving of the unexpected windfall of an inheritance. Courts have little hesitated in other contexts to find extrinsic fraud where one heir has deliberately failed to disclose a more entitled heir. Reversed.
Quigg Brothers v. Commercial Union Insurance/International Marine Underwriters
Case No. 98-36070
U.S. Court of Appeals for the Ninth Circuit
INSURANCE- COSTS FOR RECOVERY OF DAMAGED VESSEL-EXCLUSION OF HULL COVERAGE
Two barges owned by Quigg Brothers were washed down river in a storm. They incurred $53,000 in expenses in recovering the barges. Quigg had general insurance coverage, but did not have hull coverage for the two barges. The insurers denied coverage. Quigg sued. Judgment was for Quigg.
HELD: The expenses incurred by Quigg qualify as sue and labor expenses recoverable under hull insurance. Sue and labor expenses are sums spent by the insured or its representative in an effort to mitigate damage and loss once an accident has occurred. The American Institute Hull Clauses were part of the policy. The expenses incurred by Quigg were clearly collectible under the hull clauses as sue and labor expenses to safeguard and recover the barges. The policy exclusion is effective with regard to all expenses collectible under hull coverage, if obtained, and the district court erred in its refusal to apply the hull coverage exclusion. Where all of the costs are essential to any attempt to save the vessel, any benefit to the Protection & Indemnity underwriter is incidental and the hull coverage exclusion is effective to avoid P & I coverage or equitable contribution. Reversed and remanded.
Lucht v. Molalla River Schol District
Case No. 99-35733
U.S. Court of Appeals for the Ninth Circuit
OTHER-ACTION FOR ATTORNEY FEES UNDER THE INDIVIDUALS WITH DISABILITIES ACT-RESOLUTION OF INDIVIDUALS WITH DISABILITIES ACT COMPLAINT BY STATE RESOLUTION PROCEEDINGS
After informal complaints that their son was not receiving the treatment required by the Individuals with Disabilities Education Act Lucht filed a formal compliant, which resulted in a new Individualized Education Program, which the parties agree complies with the IDEA. Lucht then sued for his attorney fees. Summary judgment was for Lucht.
HELD: The impartial due process hearing provided by the IDEA is not the only way in which the parents of a disabled child can force their school district to comply with the IDEA. Parents also can file a complaint pursuant to a state's Complaint Resolution Procedure and attorney fees are authorized for the prevailing party. Proceedings under a state CRP are within the scope of the IDEA attorney fee provision. The court had jurisdiction over the action. Affirmed.
Green v. White
Case No. 99-17653
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-UNTIMELY FILING OF HABEAS CORPUS-ONE YEAR LIMITATION ON FILING WRIT OF HABEAS CORPUS UNDER ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT-EQUITABLE TOLLING
Green was convicted of first-degree murder and robbery in 1986 and sentenced to life in prison, without the possibility of parole. The district court dismissed his habeas corpus petition without prejudice on June 5, 1996 because Green had not exhausted his state remedies as to some claims. Green then filed a state petition for a writ of habeas corpus in the California Supreme Court on June 2, 1997. That petition was denied on October 29, 1997. He then filed a new petition on November 5, 1998.1 The district court dismissed with prejudice as untimely filed.
HELD: The Anti-terrorism and Effective Death Penalty Act requires that a petition for a writ of habeas corpus by a state prisoner be filed within one year from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking review. Because Green's judgment of conviction became final prior to the enactment of the AEDPA, Green had until April 23, 1997, to file his federal habeas petition. Because the limitations period had already run, tolling the one-year statute for the period that Green's action was pending in state court would not make his federal habeas petition timely since he waited more than one year after the state court decision before he filed the petition in this case. Green's present petition does not relate back to his earlier petition that was dismissed. The doctrine of equitable tolling is inapplicable. The AEDPA's one-year limitation does not constitute a per se violation of the Suspension Clause and does not render the writ of habeas corpus ineffective. Affirmed.
California Dental Association v. F.T.C.
Case No. 96-70409
U.S. Court of Appeals for the Ninth Circuit
OTHER-ASSOCIATION RESTRICTION ON ADVERTISING OF COST AND QUALITY OF DENTAL SERVICES-ANTICOMPETITIVE EFFECT OF RESTRICTION-RULE OF REASON
The California Dental Association is an association for California dentists that is a part of the American Dental Association. CDA membership is not a condition to obtaining a dentist's license from the State of California. The CDA has a Code of Ethics, which provides that Dentists should not misrepresent their training and competence in any way that would be false or misleading in any material respect. The Federal Trade Commission staff alleges that the CDA applied the ethics advertising guidelines in a way that impermissibly restricted truthful, nondeceptive advertising relating to cost and quality of service. The Ninth Circuit found that the CDA's restrictions were unreasonable under abbreviated rule-of-reason analysis. The United States Supreme Court remanded for a determination of whether the California Dental Association's advertising restrictions are anticompetitive under rule-of-reason analysis.
HELD: Under the record the FTC failed to prove that the restrictions are anticompetitive. Vacated and remanded with instruction that the Commission dismiss its case against the Association. The effect of the statute is to is to continue the status quo as to a spouse already employed for over a year, but to prohibit the spouse’s employment in a different position that requires approval of the Board of Trustees of which the employee’s spouse is member. Affirmed.
Wasserman's Archived Appellate Summaries
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