Wasserman's Appellate Summaries
September 26, 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.
Clark v. Baxter Healthcare Corporation
Case No. D034549
California Court of Appeal, Fourth District, Division One
TORTS-STATUTE OF LIMITATIONS-DISCOVERY RULE
Clark used latex gloves in the course of her employment as a nurse. She suffered adverse physical reactions from the use of the latex gloves. She sued several suppliers of the latex gloves. Summary judgment was for defendants on statute of limitations grounds.
HELD: Triable material issues of fact exist as to whether Clark's complaint was timely filed, based on the nature of the allergic reactions she suffered from exposure to the substance of latex in the form of gloves, and whether this constituted the required facts and circumstances to put her on inquiry notice of a potential manufacturing or design defect (or an actionable failure to warn or negligence), that existed in gloves manufactured from that substance. Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. A plaintiff need not be aware of the specific facts necessary to establish the claim; that is a process contemplated by pretrial discovery. In the context of determining a plaintiff's suspicion of "wrong," "wrongdoing," or "wrongful" conduct, those terms are used in their lay understanding. Reversed.
Leyva v. Nielsen, Chairman of the Board of Prison Terms
Case No. E025774
California Court of Appeal, Fourth District, Division Two
CRIMINAL-PAROLE-STATUTORY IMMUNITY FROM DECISIONS RELATING TO DECISION TO PAROLE OR NOT PAROLE A PRISONER
Leyva is a prison inmate. Although a prisoner sentenced to 15 years to life is technically eligible for parole, Leyva read a newspaper interview with Nielsen, in which he stated a person sentenced to 15-to-life must complete 15 to 21 years in prison before they could be found suitable for parole. Levya is serving 15 years to life. He filed an action against Jim Nielsen, Chairman of the Board of Prison Terms. The complaint alleges personal injury (fraud and deceit) and it seeks damages of $25,000 for alleged breach of a plea agreement and $25,000 for intentional infliction of emotional distress. The trial court sustained a demurrer to the complaint.
HELD: As Chairman of the Board of Prison Terms, Nielsen has statutory immunity from this type of lawsuit. The statute is specifically intended to extend immunity to public entities and public officials for injuries resulting from their decisions to release or not release a prisoner. Affirmed.
Victor Valley Transit Authority/County Of San Bernardino v. Workers' Compensation Appeals Board/Sophy
Case Nos. E026534/E026558
California Court of Appeal, Fourth District, Division Two
WORKERS COMPENSATION-LACK OF JURISDICTION OF WORKERS' COMPENSATION BOARD TO DETERMINE APPORTIONMENT OF LIABILITY AMONG MULTIPLE EMPLOYERS WHEN SPECIFIC INJURY-NATURE OF JOINT POWERS GOVERNMENT AGENCY
Victor Valley Transit Authority is a joint powers agency created pursuant to Government Code to serve as a central organizing instrument for several counties and cities to provide public transit services in the High Desert area. VVTA entered into an employment contract with Sophy. Sophy filed a claim for workers’ compensation benefits. The Workers' Compensation Appeals Board found that he had suffered disability arising from his employment, and was entitled to certain benefits. The VVTA members filed a petition to hold the City of Victorville responsible, since Victorville had primary responsibility for the stress inflicted on Sophy. The Board held that the workers’ compensation judge had jurisdiction to construe the joint powers agreement and determine the parties’ respective rights and obligations pursuant to that agreement.
HELD: The Legislature is authorized to create an administrative body (the Board) to determine any dispute or matter arising under the Workers' Compensation laws. The Labor Code provides that the Board has exclusive jurisdiction over proceedings for the recovery of compensation, or concerning any right or liability arising out of or incidental thereto and for the enforcement against the employer or an insurer of any liability for compensation imposed upon him by this division in favor of the injured employee. The Board lacks jurisdiction to determine apportionment disputes between joint employers in a specific injury case. Multiple employers of an employee who has suffered an occupational disease or cumulative injury can litigate apportionment and contribution before the Board. Multiple employers of an employee who suffers a specific injury cannot. Order annulled. Remanded for such further proceedings as may be necessary in the case, but with directions to decline jurisdiction over contribution or indemnity issues.
Zywiciel v. Zywiciel
Case No. G022117
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-AWARD OF SPOUSAL SUPPORT BASED ON COMPUTER PROGRAM FOR TEMPORARY SUPPORT-RECORD OF PROCEEDINGS DOES NOT SHOW INDEPENDENT JUDGMENT BY COURT
Philip and Susan Zywiciel were divorced after a 19-year marriage. The judgment of dissolution incorporated the Zywiciel’s marital termination agreement, which did not include spousal support but instead provided that the court reserved jurisdiction on the issue. Six years later, Susan moved for spousal support, additional child support for the one child still living at home, and clarification of visitation rights. In both the spousal support and child support sections of the form, next to the words "amount requested," the word "guideline" is typed in rather than a dollar amount. The judge plugged the figures in the financial statements into the DissoMaster computer program used for calculating temporary child support. The figure computed was $750, but the court awarded $500 per month.
HELD: In determining permanent spousal support, a judge may not abdicate responsibility by turning to the DissoMaster temporary support guideline, even if used only as a reference point. Permanent support reflects a complex variety of factors established by statute and committed to the trial judge’s discretion, in contrast to temporary support, which is aimed at maintaining the status quo pending trial. It is impermissible to begin with the proposed temporary support figure and adjusting it downward. The record does not show how the court exercised its independent judgment in determining the support. Reversed the $500 per month spousal support award.
GAB Business Services v. Lindsey & Newsom Claim Services
Case No. G021350
California Court of Appeal, Fourth District, Division Three
ORDER-EXISTENCE OF FIDUCIARY DUTY
Modification of opinion filed on August 29, 2000, not effecting the judgment.
Planned Parenthood Of Golden Gate v. Superior Court/Foti
Case No. A090162
California Court of Appeal, First District, Division Two
ORDER
Amendment of opinion filed on August 28, 2000, to include names of counsel, not effecting the judgment.
Montana Chamber Of Commerce v. Argenbright, Commissioner of Political Practices
Case No. 98-36256
U.S. Court of Appeals for the Ninth Circuit
CONSTITUTIONAL-RESTRICTION ON DIRECT CONTRIBUTIONS BY CORPORATIONS TO INITIATIVE PROCESS-ABSENCE OF EFFECT OF RESTRICTION ON INITIATIVE RESTRICTING MINING OPERATIONS
The citizens of Montana passed an initiative that prohibits direct corporate expenditures in ballot initiative campaigns (Proposition 125). A subsequent initiative restricted certain types of mining (Proposition 137). Plaintiffs sought to hold the restriction on mining initiative invalid, on the ground that they were prohibited from participation in the election process by Proposition 125. The trial court found Proposition 125 unconstitutional and upheld the subsequent passage of Proposition 137.
HELD: There is no question that a law requiring corporations to make independent expenditures through a segregated fund burdens corporate expression. The burden is even greater when the limitation has to do with independent expenditures in the ballot issue process, as speech on such issues is at the heart of the First Amendment's protection. The record shows that the court did not clearly err in finding that there was no imminent threat to the democratic process by direct corporate spending. Proposition 125 unconstitutionally restricts public discussion in the initiative process. Although there was evidence that I-125 had affected the ability to campaign, there was also evidence that it had no substantial impact. Eleven days remained before the election after the district court lifted the I-125 restrictions. It cannot be said that the district court abused its discretion in failing to void the results of the Proposition 137 election. Affirmed.
Bandari v. Immigration and Naturalization Service
Case No. 98-71189
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ASYLUM-EVIDENCE OF PAST PERSECUTION ON PROTECTED GROUNDS-CREDIBILTIY OF WITNESS
Bandari is a twenty-five-year old Armenian Christian who fled Iran at age nineteen after being tortured for, and convicted of, inter-faith dating. His application for asylum and withholding of deportation was denied. The IJ found that Bandari had not testified in a forthright and credible manner. The BIA affirmed.
HELD: The BIA's adverse credibility findings must be supported by substantial evidence in the record. An adverse credibility finding will not be upheld unless the IJ or BIA specifically explains the significance of the discrepancy or points to the petitioner's obvious evasiveness when asked about it. The IJ in this case failed to state the significance of the inconsistency in dates or to point us to any obvious evasiveness in Bandari's testimony when she confronted him with it. Bandari's failure to identify the specific instrument that the police used to whip him is the type of omitted detail that cannot form a proper basis of an adverse credibility finding. Bandari suffered past persecution on account of a protected ground. Since Bandari has shown that he suffered past persecution on account of a protected ground, he is entitled to a presumption that he will face persecution in the future. Bandari is eligible for asylum and entitled to withholding of deportation. Remanded for the Attorney General to exercise her discretion with respect to Bandari's asylum claim, and for the grant of withholding of deportation.
Echazabal v. Chevron
Case No. 98-55551
U.S. Court of Appeals for the Ninth Circuit
ORDER-AMERICANS WITH DISABILITY ACT
Amendment to opinion filed on May 23, 2000 to include the attached dissent by Judge Trott.
*Change in law, interesting case, or just watch out!
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