Wasserman's Appellate Summaries
September 7, 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.
Coast Plaza Doctor's Hospital v. Blue Cross of California
Case No. B132500
California Court of Appeal, Second District, Division Three
CIVIL-ENFORCEMENT OF ARBITRATION CLAUSE-UNCONSCIONABILITY
Coast Plaza is an acute care hospital operating in Norwalk, California. Blue Cross is a managed health care services provider. Coast and Blue Cross entered into an Agreement for Blue Cross to pay Coast for health care services to patient members of Blue Cross’ health care plans. The agreement had a very broad arbitration clause. When a dispute arose relating to an increase in the rate for certain services Blue Cross served notice that it was terminating the agreement. Coast filed suit for unfair trade and business practices, alleging that Blue Cross discriminated in its dealings with smaller hospitals. Coast initiated discovery. Blue Cross moved to quash discovery subpoenas and to compel arbitration. The trial court denied the motions to compel arbitration and to quash discovery subpoenas.
HELD: An order denying a petition to compel arbitration is an appealable order. There is no factual dispute as to the language of that agreement. The parties clearly agreed to arbitrate any problem or dispute that arose under or concerned the terms of the Agreement. The arbitration clause does apply to this dispute and is enforceable. Coast Plaza’s claim for injunctive relief can be severed and stayed pending the conclusion of the arbitration, which may have the effect of resolving all issues between the parties. The arbitration agreement is not unconscionable. Reversed and remanded.
In Re: Joseph G./Los Angeles County Department of Chidren and Family Services v. Cyril B.
Case No. B138083
California Court of Appeal, Second District, Division Five
FAMILY LAW-STANDING TO APPEAL OF ALLEGED FATHER WHEN NO APPEARANCE MADE AT PERMANENCY HEARING
Joseph G. was taken into protective custody when he was four days old, because of mother’s history of drug abuse. Cyril B. was identified as a potential father. He was served with notice of a hearing to terminate parental rights. Cyril took no action to establish his paternity and did not appear at the hearing. Parental rights were terminated at the hearing, including the rights of the unknown father aka Cyril B.
HELD: As a general rule, a parent may appeal from the termination of parental rights. Only parties of record may appeal. An alleged father in dependency or permanency proceedings does not have a known current interest because his paternity has not yet been established A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings. A person does not become a party of record merely because his or her name and interest appear in documents filed with the court or are referenced in the judgment. Cyril has no standing to appeal the termination of parental rights, because he is not a party of record. Appeal dismissed.
Atascadero Factory Outlets v. Austini & Wheeler L.L.P./Santa Lucia National Bank
Case No. B138534
California Court of Appeal, Second District, Division Six
CIVIL-PRIORITY OF ATTORNEY LIEN WHEN PREVIOUS SECURED CREDITOR
Camino constructed a mall and sold it to Atascadero. Camino agreed to pay the broker, Wallace Moir company a commission. The sale generated no cash. Camino received a contingent payment note, secured by a trust deed. The value of the note was to be based on a number of operation factors of the mall - such as rents, costs, etc. Camino assigned the note to the Santa Lucia National Bank as security on the loan. Camino executed a pledge agreement providing that Bank would receive the first $400,000 and Broker would receive the next $100,000 on the note. Camino retained the law firm of Austini & Wheeler and sued on the note for $3.5 million. Camino signed a retainer agreement which gave A&W a lien on the case. A&W knew about the pledge agreement but did not ask Bank and Broker to subordinate their security interests. The matter was ordered to arbitration and resulted in a $500,000 award to Camino. Atascadero interpled the conflicting claims of the Bank, Broker and A&W. The trial court awarded the $500,000 to the Bank and Broker, as secured creditors.
HELD: Bank and Broker had no communication with A&W that gave rise to an implied contract. As secured creditors, their acquiescence to the collection action did not render them liable for Camino's litigation expenses. Affirmed.
In Re: Daijah T./Sacramento County Department of Health and Human Services v. Felicia W.
Case No. C035065
California Court of Appeal, Third District
FAMILY LAW-DENIAL OF EVIDENTIARY HEARING FOR MODIFICATION OF JUVENILE COURT ORDER-CHANGED CIRCUMSTANCES
On petition of the Sacramento County Department of Health and Human Services on behalf of one-year-old Daijah and two-year-old Shawn the children were found to be dependent children. Three siblings, Anisha, Ashlee, and Marcus, were also the subject of a dependency proceeding. A psychological evaluation concluded that, if were reunited with all five children, it was likely that she would become increasingly depressed and suicidal, and that she would be unable to adequately parent all of the children on her own. Daijah and Shawn were recommended for adoption and the other three children reunited with Felicia. Felicia then sought a modification of the juvenile court’s orders ending reunification services and scheduling a permanent plan hearing. The juvenile court denied Felicia's petition for modification and request for an evidentiary hearing and terminated Felicia's parental rights.
HELD: To state a prima facia case for modification of a juvenile court order the petition must allege a change of circumstance or new evidence that requires changing the existing order. By case law, a party must also plead facts showing that the best interests of the child may be promoted by the proposed change of order. In this case Felicia sufficiently pleaded changed circumstances. It was not necessary to plead changed circumstances of the children themselves. The juvenile court violated Felicia's statutory rights by denying her an evidentiary hearing. Reversed and remanded.
Golden Days Schools v. The State Department of Education
Case No. B136421
California Court of Appeal, Second District, Division Four
OTHER-DUE PROCESS RIGHT TO FAIR HEARING-DEBARMENT FROM RECEIVING GOVERNMENT CONTRACT
For 25 years Golden Day Schools has operated child care programs in the City of Los Angeles. For a number of years it has done so under contracts awarded by the State of California. In 1998 it was advised that an audit revealed deficiencies. Golden was given a new contract in 1998, but placed on a conditional status and then notified that the contract would not be renewed. A hearing was scheduled before a panel. Golden objection to inclusion on the hearing panel of the director of Audits and Investigation Division, which had determined the original deficiency, were ignored. The decision to terminate was upheld by the panel. Golden sought administrative mandate. Judgment was for the Department.
HELD: A fair trial in a fair tribunal is a basic requirement of due process. This is true of administrative adjudication as it is of courts. A child care contractor with the state, debarred by the state administering agency from applying for further contracts for three years, has a due process liberty interest entitling it to a hearing on justification for the debarment. Reversed and remanded.
Shoafera v. Immigration and Naturalization Service
Case No. 98-70565
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ASYLUM-PRESUMPTION OF WELL FOUNDED FEAR OF PERSECUTION BASED ON PAST PERSECUTION-EVIDENCE
Shoafera, is a citizen of Ethiopia, of Amharic ethnicity. She entered the United States on a visitor's visa in 1990. Her application for asylum and withholding of deportation. She stated at the hearing that she was raped because of her Amharic ethnicity. Her petition was denied.
HELD: To establish eligibility for asylum, an alien must show that he or she is a refugee within the meaning of the statute. Shoafera must show that she is unable or unwilling to return to her 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. Because asylum cases are inherently difficult to prove, an applicant may establish his case through his or her own testimony alone. Shoafera's testimony is accepted as undisputed because the IJ found her testimony credible and the BIA did not disagree. Shoafera also submitted documentary evidence that verified the ongoing ethnic conflict in Ethiopia and established that Amharas are often targets of such violence. That there might have had more than one motivation for raping Shoafera does not in itself defeat her asylum claim. A finding of past persecution triggers a regulatory presumption that the applicant has a well-founded fear of future persecution. Petition granted and remanded to the BIA to determine whether the INS has produced sufficient evidence to overcome the presumption in Shoafera's favor.
United States v. Hernandez-Guardado/Frias
Case Nos. 99-10342/99-10480
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SUFFICIENCY OF EVIDENCE TO SHOW MENS RE FOR TRANSPORTING ILLEGAL ALIENS-SENTENCING-DOUBLE JEOPARDY-MISTRIAL
Hernandez worked for a company owned by Frias, which was engaged in transporting aliens from border cities to other areas of the United States. Based on information from an informant the vehicle, which Hernandez was driving, was stopped and illegal aliens found in the vehicle. Hernandez and Frias were convicted of transporting an illegal alien, aiding and abetting, and conspiracy to transport illegal aliens.
HELD: Because neither appellant in this case made or renewed an earlier motion for an acquittal at the close of all evidence, the review is only for plain error and to prevent a miscarriage of justice. The Government need not prove by direct evidence a defendant's intent to further the presence of an illegal alien. The evidence was sufficient to show that appellants knew or had a reckless disregard for the fact that the parties they transported were illegal aliens. The two level enhancement of Frias' sentence, based on the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person, was proper. The van in which the illegals were transported were greatly overloaded. The two year enhancement did not result in the sentence exceeding the statutory maximum. The district court did not plainly err in subjecting Frias to a second trial after declaring a mistrial in the first. Affirmed.
Downs v. Los Angeles Unified School District
Case No. 99-356797
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-FREEDOM OF SPEECH-RIGHT OF TEACHER TO POST MATERIAL DISAGREEING WITH SCHOOL SANCTIONED MATERIAL
Downs is a teacher at a school within the Los Angeles Unified School District. Downs disagreed with the information provided by the school relating to Gay and Lesbian Awareness. The school took down material Downs posted on the subject. Downs sued for violation of his freedom of speech. Summary judgment was for the School.
HELD: The First Amendment declares that Congress shall make no law abridging the freedom of speech. Viewpoint neutrality, does not apply to LAUSD's actions in this case. It is not a case involving the risk that a private individual's private speech might simply bear the imprimatur of the school or be perceived by outside individuals as school-sponsored. The bulletin board's no which Downs posted his material were the property and responsibility of the school and LAUSD. The bulletin boards served as an expressive vehicle for the school board's policy of Educating for Diversity. When the government is formulating and conveying its message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted" by its individual messengers. Affirmed.
United States v. Edwards
Case No. 99-30143
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-GOVERNMENT TAMPERING WITH EVIDENCE
Edwards was convicted of one count of possession of cocaine with intent to distribute. At the first trial the government removed a black bag containing cocaine in baggies and it was later discovered a bail receipt, with Edwards name on it was found in the bag.
HELD: A decisions of the trial court to admit evidence will be reversed for an abuse of discretion only if such non-constitutional error more likely than not affected the verdict. Merely raising the possibility of tampering with evidence is not sufficient to render evidence inadmissible. The fact that the prosecutor tampered with a crucial piece of evidence in this case undermines the integrity of the verdict. The government's initial search of the black nylon bag did not reveal the bag's owner. The government had custody of the bag for over two years without discovering the bail receipt. The bail receipt should have been excluded at the second trial. The admission of the bail receipt was not harmless error. Reversed and remanded.
United States v. Albert
Case No. 99-10071
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-VIOLATION OF PROHIBITION OF BASE JUMPING IN NATIONAL PARK-DISORDERLY CONDUCT
The former opinion was withdrawn and this new opinion substituted in its place. Albers and eleven others were convicted of delivering and retrieving persons by parachute and disorderly conduct for BASE jumping in the Glen Canyon National Recreation Area.
HELD: The Park Service proscribes BASE jumping under its regulations governing aircraft and air delivery. Technological improvements in the shape, maneuverability, and control of modern parachutes, including those used here, do not make them cease to be parachutes. Given that the ram-air chutes used by the defendants are parachutes, BASE jumping does not qualify as powerless flight. With respect to the landing of ram-air chutes in national parks, however, the FAA does not have exclusive jurisdiction and nothing precludes the Department of Interior from, as here, promulgating regulations to prohibit such landings. BASE jumping does pose a threat to the general public and defendants were properly convicted of disorderly conduct. Affirmed.
Wasserman's Archived Appellate Summaries
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