Wasserman's Appellate Summaries
September 27, 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.
Kotlar v. Hartford Fire Insurance Company
Case No. B133614
California Court of Appeal, Second District, Division Seven
INSURANCE-DUTY OF INSURER TO GIVE NOTICE OF CANCELLATION TO ADDITIONAL NAMED INSURED-NO DUTY FOR BROKER TO GIVE NOTICE OF CANCELLATION OF POLICY
Kotlar leased commercial property to Sharvit, who agreed to maintain liability insurance for the benefit of Kotlar. Sharvit purchased a commercial general liability insurance policy from Hartford Insurance Company naming him and Kotlar as insureds. Kotlar received a certificate of insurance informing him he was named as an additional and Hartford promised it would "endeavor" to give Kotlar 30 days advance notice of cancellation of the policy. Before the scheduled expiration date, Hartford canceled the policy because Sharvit failed to pay the premiums. Hartford sent notice of its intent to cancel the policy to Sharvit but not to Kotlar. The brokers who sold the policy to Sharvit also failed to provide notice of cancellation to Kotlar. There was a fall and injury on the property. Kotlar was sued. Hartford rejected the tender of the defense. Kotlar sued Hartford and the broker. Summary judgment was for defendants, on the grounds that there was no duty to notify Kotlar of the cancellation.
HELD: The Insurance code provides that a notice of cancellation of a policy shall be in writing and shall be delivered or mailed to the named insured at the mailing address shown on the policy. If a cancellation is defective, the policy remains in effect even if the premiums are not paid. The clear purpose of the statute is to protect named insureds from losing insurance coverage due to a cancellation of the policy without notice. Had Kotlar received an advance notice of cancellation, he could have protected his rights by paying the premium due or obtaining another insurance policy. Putting the burden on Hartford to send Kotlar a notice of cancellation is not unreasonable. The broker does not have a duty to provide notice of cancellation of a policy. The relationship between an insurance broker and its client is not the kind that would logically give rise to such a duty. The duty of a broker, by and large, is to use reasonable care, diligence, and judgment in procuring the insurance requested by its client. Reversed, as to Hartford, affirmed, as to the broker.
In Re Vargas
Case No. B137582
California Court of Appeal, Second District, Division Three
CRIMINAL-HABEAS CORPUS-INEFFECTIVE ASSISTANCE OF COUNSEL
Steven Vargas pled nolo contendere to three counts of forcible lewd conduct upon a child and was sentenced to a total prison term of 24 years.
HELD: The state and federal constitutions both guarantee that persons deprived of their liberty have the right to petition for a writ of habeas corpus. The writ is the safeguard and the palladium of our liberties. It may be the last safeguard our judicial system provides for persons whose conviction was wrongful. Defendants are entitled to competent representation of counsel before being incarcerated. Steven Vargas has made a prima facie showing that counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced his defense. There is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The petition for writ of habeas corpus was granted and remanded for the purpose of conducting an evidentiary hearing.
People v. Hall
Case No. C031119
California Court of Appeal, Third District
CRIMINAL-MULTIPLE VICTIM EXCEPTION TO PUNISHMENT FOR EACH VICTIM-EXHIBITING A FIREARM TO POLICE OFFICERS
When police officers sought to arrest Hall he exhibited a firearm in a threatening manner in the immediate presence of several peace officers. He was convicted and sentenced for the exhibition to each of the officers present.
HELD: The Penal Code prohibits multiple punishments for an act or omission that is punishable in different ways by different provisions of law. This provision is not a bar to multiple punishments where the act is one of violence against multiple victims. The crime of exhibiting a firearm in the immediate presence of a peace officer, by its very definition, is not committed upon a peace officer, but only in the presence of a peace officer. The multiple-victim exception requires multiple victims, not multiple observers. Only once the exhibition of the firearm becomes an assault may the observers become victims, and may a single act warrant multiple punishment. The sentences for two of the exhibiting charges were stayed pending service of the sentence on one conviction and then the stay will become permanent. Affirmed as modified.
Kirchmann v. Lake Elsinore Unified School District
Case No. E026060
California Court of Appeal, Fourth District, Division Two
CIVIL RIGHTS-ELEVENTH AMENDMENT IMMUNITY OF SCHOOL DISTRICT AS ARM OF THE STATE
Kirchmann, an employee of the Lake Elsinore Unified School District, was suspended for 30 days after she anonymously communicated to bidders on a District construction management contract her view that a conflict of interest existed in the selection process. She filed suit. Judgment was for Kirchmann on First Amendment grounds. She then sought damages for violation of her civil rights. The District's demurrer was sustained.
HELD: Section 1983 of the Civil Rights Act provides, that very person who subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Local governmental bodies such as cities and counties are considered "persons" subject to suit under section 1983. States and their instrumentality's, on the other hand, are not. A California school district is an arm of the state for Eleventh Amendment purposes. The District has the state’s immunity from liability under section 1983. Affirmed.
United Farm Workers v. Dutra
Case No. H019659
California Court of Appeal, Sixth District
LABOR-EMPLOYERS PROHIBITED FROM CONTRIBUTING TO INFLUENCE COLLECTIVE BARGAINING RIGHTS
The UFW announced an ongoing campaign to organize strawberry pickers into a union. An opposition group, which ultimately became the AWA, was formed to oppose the campaign. Two of the potentially effected employers donated several thousand dollars for porta potties at the AWA meetings. The UFW sued, on the grounds that this violated the Labor Code. Summary judgment was for the UFW and an injunction was granted.
HELD: The Labor Code prohibits agricultural employers from giving anything of value to employee groups for the purpose of causing such employee groups to influence other employees regarding their collective bargaining rights. The statue is constitutional. Affirmed.
Golden Days Schools v. The State Department of Education
Case No. B136421
California Court of Appeal, Second District, Division Four
ORDER
Modification of opinion filed herein on September 7, 2000, not effecting the judgment.
People v. Coddington
Case No. S008840
California Supreme Court
ORDER
Minor modification of opinion herein, appearing at 23 Cal.4th 529, not effecting the judgment.
United States v. Recio/Lopez-Meza
Case No. 99-30135
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EVIDENCE OF CONSPIRACY BEFORE SEIZURE OF CONTROLLED SUBSTANCES-INEFFECTIVE ASSISTANCE OF COUNSEL-MISCONDUCT OF PROSECUTION
Recio and Lopez-Meza were convicted of conspiracy to possess with intent to distribute a controlled substance and Recio was also convicted, as Count Two, of possession with intent to distribute. The pair was arrested after the government had seized the drugs involved in the conspiracy.
HELD: The question presented is whether any rational jury could find, beyond a reasonable doubt, that Recio and Lopez-Meza were involved in the conspiracy prior to the initial seizure of the drugs in Nevada. The evidence of guilt in this case is insufficient. No specific words or conduct provided a probative link between Defendants and a pre-seizure conspiracy. Defendants' words and conduct only revealed their general guilt that could be related only to their post-seizure pickup of the contraband. There is also strong evidence that Lopez-Meza and Recio were not involved in coordinating the conspiracy. The district court did not err by allowing evidence of the odor of burned marijuana in Defendants' vehicle, or denying Defendants' motion for a mistrial based on the prosecutor's reference to a "stash house," even though the court had instructed the prosecutor not to use that term. This misconduct did not affect the verdict. Generally the Court does not reach claims of ineffective assistance of counsel on direct appeal, and only do so in habeas corpus proceedings. Such review of ineffective assistance claims may be made where the record is sufficiently developed to permit review and determination of the issue, or where the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel. Recio's counsel's failure to move for acquittal on Count Two after the first trial resulted in a hung jury constituted ineffective assistance of counsel. All parties agree that Recio would have been granted a new trial but for the failure of his counsel to move for acquittal. The fact that Recio was denied a new trial constitutes prejudice in its own right. Reversed the conspiracy convictions and dismissed with prejudice because of insufficient evidence.
Cramer v. Consolidated Freightways
Case No. 98-55657
U.S. Court of Appeals for the Ninth Circuit
ORDER
Decertified opinion and ordered that the case be reheard by the en banc Court.
Sidhu v. Immigration and Naturalization Service
Case No. 98-71363
U.S. Court of Appeals for the Ninth Circuit
ORDER-IMMIGRATION-DENIAL OF ASYLUM BASED ON ADVERSE CREDIBILITY DETERMINATION
Modification of opinion filed July 20, 2000, slip op. 8681, not effecting the judgment.
*Change in law, interesting case, or just watch out!
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