Wasserman's Appellate Summaries
September 14, 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.
People v. Wood
Case No. D034595
California Court of Appeal, Fourth District, Division One
CRIMINAL-THREE STRIKES LAW-HIT AND RUN AS PRIOR SERIOUS FELONY
Wood entered a guilty plea to corporal injury upon a spouse. He also admitted a prior conviction for violation of a hit and run conviction under the Vehicle Code, which had been alleged as a serious/violent felony strike. Wood reserved the right at sentencing to argue the prior conviction did not qualify as a strike. The trial court denied Wood's motion to strike the serious/violent felony prior and doubled the basic sentence for corporal injury.
HELD: The Vehicle Code statutes for which Wood had previously been convicted require drivers to render reasonable aid to the injured person and to furnish identification to that person and law enforcement authorities. The record of the prior conviction shows that the victims were injured in the car crash. Wood and his companion were fleeing from the police when their car rammed into the victims' vehicle. The record of the prior conviction shows the injury to the victims was the result of the driving and not of the flight. The absence of legislative recognition of hit and run as a serious felony, when it has specifically included other driving offenses in the code section defining serious felony demonstrates an intent to exclude it from the definition of serious felony. Reversed the true finding of the prior strike and remanded for resentencing.
Jans v. Nelson
Case No. F030416
California Court of Appeal, Fifth District
(Certified for publication with the exception of parts II through IV.)
CIVIL-COMPUTATION OF EQUITABLE CONTRIBUTION OF PARTNERSHIP DEBTS AMONG PARTNER GUARANTORS
This case involved the guarantee by partners of the debts of the partnership. Based on his share of the partnership Jans paid an amount that was in excess of his proportionate share of the partnership debt. He sued the other partners for contribution. The trial court concluded that each solvent guarantor was responsible in equity for an equal share of the total sum paid to the bank by one of the partners.
HELD: The Civil Code provides that a party to a joint or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him. Solvent limited partners who have guaranteed a debt of the partnership have an equitable duty of contribution when a fellow guarantor has satisfied the guaranteed debt. When the partner has guaranteed the partnership debt in his or her role as a partner (as opposed to a role as a manager, agent, creditor or other person affiliated with the partnership in some way), the guarantor’s duty of contribution is presumed to be limited by his or her proportionate share of ownership of the limited partnership. In calculating the solvent partners’ ownership interests, the court must disregard the ownership interests of any insolvent partners. Thus, absent some other agreement among the co guarantors, a solvent partner’s equitable contribution will be proportionate to his or her adjusted percentage of ownership. The point of the equitable action for contribution is to relieve the unfairness visited upon the guarantor who has paid more than his or her fair share; the point is not to make sure each guarantor pays a fair share. Reversed.
GAB Business Services v. Lindsey & Newsom Claims Services
Case No. G021350
California Court of Appeal, Fourth District, Division Three
ORDER
Modification of opinion filed on August 29, 2000, not effecting the judgment.
Cruz v. Homebase
Case No. B128058
California Court of Appeal, Second District, Division Seven
ORDER
Modification of the opinion filed on August 21, 2000, not effecting the judgment.
DeZerega v. Meggs
Case No. A086725
California Court of Appeal, First District, Division Four
ORDER
Modification of opinion not effecting the judgment.
Planned Parenthood of Golden Gate v. Superior Court of San Mateo
Case No. A090162
California Court of Appeal, First District, Division Two
ORDER
Modification of opinion filed on August 28, 2000, not effecting the judgment.
Carson Harbor Village v. Unocal/City of Carson
Case No. 98-55056
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-REQUIREMENTS FOR PRIVATE PARTY TO RECOVER CONTAMINATION CLEAN UP COSTS-COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT
Carson Harbor Village, the current owner of land contaminated by storm water runoff and oil production sued prior owners and operators of the property, and local government entities, to recover cleanup costs under he Comprehensive Environmental Response Compensation and Liability Act and California common law. The district court dismissed the case on cross motions for summary judgment, because Carson failed to meet its burden on at least one of the CERCLA elements, that removal costs were necessary, and that its common law claims were without merit.
HELD: A private party seeking to recover the costs of cleaning up hazardous waste has the burden of proving: (1) the site on which the hazardous substances are contained is a "facility"; (2) a "release" or threatened release of any hazardous substance" from the facility has occurred; and, (3) such release or threatened release has caused the plaintiff to incur response costs that were necessary and consistent with the national contingency plan. To show that any response costs were necessary a plaintiff must demonstrate that they responded to a threat to public health or the environment. The district court erred in finding that there was insufficient evidence of an environmental threat and that Carson Harbor's response costs were unnecessary. The court extensively discussed passive and active disposal costs. It found that the CERCLA generally imposes strict liability on owners and operators of facilities at which hazardous substances were disposed. Affirmed in part and reversed in part and remanded.
Hell's Canyon Alliance v. United States Forest Service
Case No. 99-35675
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENT-ADEQUACY OF ENVIRONMENTAL IMPACT REPORT
After a lengthy environmental impact process and extensive public comment, the Forest Service implemented a recreation management plan that included a non-motorized window which is a three-day period every other week throughout the primary season during which motorized water craft would be barred from part of the wild section of the Snake River. The Hell's Canyon Alliance challenged the decision. Summary judgment was for the Forest Service.
HELD: In assessing the adequacy of an Environmental Impact Statement, a rule of reason test is used to determine whether the EIS contains a reasonably thorough discussion of the significant aspects of probable environmental consequences. The Forest Service's decisions with respect to what uses substantially interfere with the river corridor's values mustbe accorded substantial deference. The Alliance's claim that the agency's analysis of the window was inadequate was rejected. Under the unique circumstances, the decision not to employ a different methodology or particular empirical studies does not suffice to show arbitrary or capricious action. Affirmed.
Pedro-Mateo v. Immigration And Naturalization Service
Case No. 98-70535
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ASYLUM-NECESSITY TO SHOW LISTED BASIS FOR PERSECUTION-BEATINGS AND PRESSURE TO JOIN GOVERNMENT ARMED FORCES DOES NOT ESTABLISH PERSECUTION ON ACCOUNT OF POLITICAL BELIEF
Pedro-Mateo is a Kanjobal Indian from Guatemala. He was kidnapped and beaten when he refused to join government soldiers. He was released when he showed he was less than 18 years old. He then illegally entered the U.S. His application for asylum was denied.
HELD: To establish eligibility for asylum on the basis of a well-founded fear of persecution, an alien's fear of persecution must be both subjectively genuine and objectively reasonable. It must be shown that the persecution or a well-founded fear of persecution is on account of race, religion, nationality, membership in a particular social group, or political opinion. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution. Absent evidence of discriminatory purpose, a guerilla organization's attempts to force a person to join them is insufficient to compel a finding of persecution on account of political belief. Petition denied.
United States v. Reid
Case No. 99-50067
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-WARRANTLESS SEARCH OF RESIDENCE-APPARENT AUTHORITY TO CONSENT TO ENTRY TO PREMISES
After an investigation a person sought by law enforcement was identified as living in particular apartment with several other persons. Officers went to the apartment and when they knocked another persons, Grant opened the door. When the officer identified himself Grant slammed the door shut and locked it. He was apprehended going out the back door. Grant was handcuffed and when asked for identification said it was in the apartment and gave permission for the officers to retrieve it. The officers went inside the apartment. They observed a firearm, currency, packing boxes, and clear plastic bags. The officers then secured a warrant. While waiting for the warrant Reid arrived. He ran when he found that there were law enforcement officers present. He was apprehended and arrested for having false identification. A search of the apartment revealed more guns and paraphernalia. Reid's motion to suppress was denied. He was convicted of being an illegal alien in possession of a firearm.
HELD: A warrantless search of a house is per se unreasonable and absent exigency or consent, warrantless entry into the home is impermissible under the Fourth Amendment. Grant did not have apparent authority to consent to a search because he answered the front door and appeared to be alone in the apartment. The "the mere fact of access, without more, does not indicate that the access was authorized. Under the circumstances it was not objectively reasonable to believe that Grant resided in the apartment simply because he opened the door and appeared to be alone. Additionally, the government did not show that there was no duress or coercion, express or implied" and that the consent was "unequivocal and specific" and freely and intelligently given. There were no exigent circumstances. Reversed and remanded.
United States v. Matthews
Case No. 98-10499
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EVIDENCE OF OTHER ACTS-PLAIN ERROR REVIEW WHEN NO OBJECTION TO EVIDENCE-SENTENCING-CHALLENGE TO PRIORS AS QUALIFYING OFFENSES REQUIRES A FURTHER REVIEW OF THE VALIDITY OF THE PRIORS
Matthews was tried on three counts of being a felon in possession of a firearm and two counts of unlawful possession of stolen firearms. He of unlawful possession and the district judge dismissed two of the three felon in possession of a firearm counts as multiplicitous. He was sentenced as an Armed Career Criminal under the Sentencing Guidelines despite an objection by his counsel that Matthews' prior burglary and attempted burglary convictions were not qualifying crimes. An informer testified against Matthews at the trial.
HELD: There was sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The uncorroborated testimony of an informer is sufficient to sustain a conviction" when it is not unbelievable or incredible. The evidence was sufficient. Evidence of other acts can be admitted when it constitutes a part of the transaction that serves as the basis for the criminal charge. The court has also allowed such evidence when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime. In this case the main purpose of the contents of Matthews room was to portray Matthews as an individual who deals in goods that are presumably stolen. Since there was no objection to this testimony it was reviewed under the plain error standard. The Court found that this was not plain error. The multiplicitious charges did not effect any substantial right of Matthews. When an enhancement is challenged on the basis that the previous convictions are not qualifying offenses, the court must examine the statutes of conviction or certified copies of conviction before imposing the enhancement. Here, the district court could not undertake a proper evaluation of Matthews' prior burglary convictions since it did not have before it records of the prior convictions or the statutes under which the prior convictions were imposed. In such circumstances, the imposition of ACC enhancement is an error of law. Affirmed conviction, reversed for resentencing.
Redmond-Issaquah Railroad v. The Surface Transportation Board/United States
Case No. 98-70906
U.S. Court of Appeals for the Ninth Circuit
OTHER-SURFACE TRANSPORTATION BOARD DISCRETIONARY RIGHT TO REJECT OFFER OF FINANCIAL ASSISTANCE
The Redmond-Issaquah railroad line, measuring 12.45 miles, runs between Redmond and Issaquah along Lake Sammamish. The Redmond-Issaquah Railroad Preservation Association wanted to acquire the railroad through its Offer of Financial Assistance. The Surface Transportation Board determined that future traffic on the line was extremely speculative, but also concluded that RIRPA was not interested in continuing rail services and denied the offer to acquire. RIRPA sued.
HELD: Reading the Interstate Commerce Commission Termination Act as a whole the Court found that it was not unreasonable for the STB to conclude that Congress retained the original aim of the OFA procedure in enacting the ICCTA. Beginning with the provision's title, "Offers of Financial Assistance to Avoid Abandonment and Discontinuance", Congress signals its interest in the continued operation of railroad lines where possible. Affirmed.
United States v. Vonn
Case No. 98-50385
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FAILURE TO ADVISE OF RIGHT TO COUNSEL ON PLEA OF GUILTY
The opinion filed April 20, 2000 was withdrawn and a new opinion substituted. The question was whether a guilty plea should be set aside because the district court failed to advise defendant of his right to be represented by counsel at trial. The fact was specifically called to the court's attention by the attorney for Vonn, who responded that he hadn't advised Vonn of this because he was represented by counsel. Vonn's subsequent motion to withdraw his guilty plea was denied.
HELD: The district court erred in advising Vonn of his rights and the error was not harmless. Reversed and sentence and guilty plea vacated.
Caudle v. Bristow Optical Company
Case No. 98-15537
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-PREGNANCY DISCRIMINATION-PUNITIVE DAMAGES-EFFECT OF VOLUNTARY WITHDRAWAL FROM WORKPLACE-REFUSAL OF REINSTATEMENT-ATTORNEY FEES
Caudle sued her employer, Bristow Optical Company, Inc. and her supervisor when Bristow terminated Caudle's employment in the eighth month of her pregnancy. Caudle's sued. Her claims of pregnancy discrimination under federal law and wrongful termination under Arizona law went to the jury and she recovered judgment, including punitive damages. The trial court found that the compensatory damages awarded overlapped and reduced them. It also awarded one quarter of the requested attorney fees.
HELD: The Civil Rights Act permits courts to grant equitable remedies to employees who have been impermissibly discriminated against by employers with fifteen or more employees. An award of back pay is appropriate to make persons whole for injuries suffered through past discrimination. There is a duty to mitigate damages by seeking alternative employment with reasonable diligence. In this case Caudle voluntarily withdrew from the work force shortly after the birth of her child and cannot claim damages from that time forward. In relation to front pay, reinstatement, when feasible, is the preferred remedy in a discrimination suit. Caudle declined a reinstatement offer, and could not show that there was excessive hostility between he parties. The reduction of the award as duplicative was supported by the evidence. The award of attorney fees was not based on an adequate analysis. Other evidentiary issues were reviewed. Affirmed on merits, reversed as to the attorney fees and remanded.
Ninilchik Traditional Council v. United States
Case No. 99-35017
U.S. Court of Appeals for the Ninth Circuit
OTHER-ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT
This case concerns the Alaska National Interest Lands Conservation Act, enacted to protect the viability of subsistence living. It deals with such things as the application of the spike-fork/50-inch antler restriction to subsistence hunters.
HELD: The Federal Subsistence Board's decision to impose the spike-fork/50-inch antler restriction on subsistence uses of moose in GMU 15 is affirmed in part and reversed in part. [With apologies to all our subsistence living friends and readers in Alaska, you are directed to the full text of the opinion.]
Wasserman's Archived Appellate Summaries
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