Wasserman's Appellate Summaries
September 6, 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.
Adams v. Anderson, Trustee
Case No. 99-55204
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-VOIDABLE PREFERENCE-EARMARKING DOCTRINE EXCEPTION
Superior Stamp & Coin operated as a full service auction house. Adams consigned items for auction to Superior. Superior sold the consigned items, but did not pay Adams in full. Adams agreed to an installment payment of the balance due. At that point Superior's Bank intervened. It set Superior up on a strict budget, which included special approval and funding for Superior's checks to Adams. When Superior's balance fell below the amount of an installment payment to Adams the Bank advanced the shortfall. The following month the Bank advanced the entire amount. A Chapter 11 petition was filed the same month. The Trustee then filed an adversary proceeding to recover the two payments to Adams, on the ground that they constituted a voidable preference. Judgment was for the Trustee.
HELD: Under the Bankruptcy Code, a trustee may recover certain transfers made by the debtor within 90 days before the bankruptcy petition was filed. Under the diminution of estate doctrine, a transfer of an interest of the debtor in property occurs where the transfer diminishes directly or indirectly the fund to which creditors of the same class can legally resort for the payment of their debts. An exception to this is the "earmarking doctrine." When a third party lends money to a debtor on the condition that it be used to pay a specific debt, the fact that the debtor requested the loan or that the funds were advanced to the debtor rather than paid directly to the recipient creditor does not render the transfer outside the scope of the earmarking doctrine. The advances by the Bank of the shortfall in payments to Adams came within the earmarking doctrine. The amount advanced by the Bank were not a voidable preference to Adams. Reversed and remanded.
Hawaii Teamsters Union v. United Parcel Service
Case No. 99-17079
U.S. Court of Appeals for the Ninth Circuit
LABOR-TERMINATION FOR OFFENSIVE LANGUAGE TO SUPERIOR-CONDUCT NOT WITHIN EXPRESS LISTING OF COLLECTIVE BARGAINING AGREEMENT
Harris was summarily fired by UPS for insubordination and abusive conduct toward superiors and co-employees. The Union agreement with UPS provided that an employee might be summarily terminated without written notice for certain types of conduct. Swearing at superiors was not one of the types of conduct listed. The matter was submitted to arbitration. The arbitrator held that the conduct violated industrial norms and upheld the termination. The district court confirmed the decision.
HELD: An arbitrator is not confined to the express terms of the Collective Bargaining Agreement, but may also consider the industrial common law which is equally a part of the collective bargaining agreement although not expressed in it. The fact that other arbitrators have interpreted the list of prohibited conduct as nonexclusive cannot render plausible an otherwise implausible interpretation of the CBA. The Court found the arbitrator's interpretation implausible and reversed.
Zahedi v. Immigration and Naturalization Service
Case No. 98-71179
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-EVIDENCE SUPPORTING GRANT OF ASYLUM-TESTIMONIAL VAGUENESS
Zahedi, an Iranian citizen, was involved in an endeavor with one other person to translate and informally distribute a Farsi edition of Salman Rushdie's banned novel "The Satanic Verses". His partner in the project was arrested and apparently tortured and killed by the Iranian authorities. Zahedi fled when a summons was sought to be served on him. His application for asylum and withholding of deportation was denied.
HELD: The Court found that it had jurisdiction pursuant to the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act. To be eligible for asylum, an applicant must show that he is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Testimonial vagueness and inconsistency are not reasons that bear a legitimate nexus to the rejection of documents concerning a foreign government's pursuit of an alien for engaging in political activity. The subjective and objective evidence in this case would compel any reasonable fact-finder to reach a conclusion contrary to that of the BIA. Petition granted and remanded for the exercise of granting the asylum claim.
Munger v. City of Glasgow Police
Case No. 98-36090
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-QUALIFIED IMMUNITY OF GOVERNMENT AND ITS AGENTS-DANGER CREATION EXCEPTION
The police in Glasgow, Montana helped eject Munger from a bar. The temperature was minus 20 degrees. At the time Munger was wearing only jeans and a t-shirt. He died from hypothermia. His parents sued for violation of his civil rights and negligence. Summary judgment was for the City, on the ground of qualified immunity.
HELD: Qualified immunity shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Although the general rule is that the state is not liable for its omissions, there are several exceptions to this rule. The "danger creation" exception exists where there is affirmative conduct on the part of the state in placing the plaintiff in danger. Viewing the evidence in the light most favorable to the Mungers, it was held that the district court erred in concluding that the officers did not affirmatively place Munger in a position of danger. Reversed and remanded.
Kling v. Hallmark
Case No. 99-55222
U.S. Court of Appeals for the Ninth Circuit
COPYRIGHT-LACHES IN ENFORCEMENT OF CLAIM OF INFRINGEMENT-KNOWLEDGE OF INFRINGEMENT-KNOWLEDGE OF CLAIM OF OWNERSHIP
Beginning in 1981, Hallmark Cards began to develop the Rainbow Brite character and a number of related characters and story lines. DIC Enterprises. DIC Agreed to produce a Rainbow Brite program and assign to Hallmark the copyrights in all material created by or for DIC. Kling entered into three contracts with DIC to write scripts for three Rainbow Brite and three Robotman television specials. Kling wrote the scripts. Hallmark registered the copyright, indication DIC was the originator and had assigned its rights to Hallmark. In 1984 Kling and DIC got into a dispute concerning proper credit for Kling as creator of the characters. In 1994 Kling's widow discovered videotapes featuring Rainbow Brite characters. Her claims for entitlement to compensation were brushed off. She filed suit in 1997. Hallmark's first motion for summary judgment, on statute of limitations grounds, was denied. Hallmark's second motion for summary judgment, on the ground of laches, was granted.
HELD: The period of delay for laches for a copyright infringement claim runs only from the time that the plaintiff knew or should have known about an actual or impending infringement, not an adverse claim of ownership. The Court found that there is a genuine issue of material fact as to whether the Klings knew or had reason to know about an actual or impending infringement of their alleged copyrights prior to August 1994. Reversed and remanded.
United States v. Tiong/Rubio-Alabau
Case No. 99-30167
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-STOP AND SEARCH OF VEHICLE-REASONABLE SUSPICION BASED ON ARTICULABLE FACTS
Rubio drove a rental car across the Canadian-American border at 2:00 AM. The Customs inspector suspicions were aroused. Rubio told him he was going to visit his girlfriend in Seattle. The Customs inspector had an officer proceed to where he could observe a turnoff area from the direct road to Seattle. The turnoff led to an area used to pick up "walkovers," persons who walked across the border through logging trails and were picked up by a vehicle. Rubio's vehicle turned off. When Rubio was later observed with a passenger in the vehicle it was stopped. Ninety pounds of marijuana was discovered in the vehicle. Rubio and Tiong's motion to suppress was granted.
HELD: The Fourth Amendment entitles a person to drive down a road without being stopped by the government, unless the law enforcement officer who stops him has a reasonable suspicion based on articulable facts of criminal activity. Reasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion. The officers did have reasonable suspicion based on articulated facts. Far from being an unjustified stop, this was model police work. The quantum of proof needed for reasonable suspicion is less than a preponderance of evidence, and less than probable cause. It is merely a particularized and objective basis for suspecting the person stopped of criminal activity. Reversed.
San Remo Hotel L.P. v. City and County of San Francisco
Case No. A083530
California Court of Appeal, Firtst District, Division Five
ORDER
Certification of opinion for publication. No effect on judgment.
Wasserman's Archived Appellate Summaries
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