Wasserman's Appellate Summaries
September 28, 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.
Martinez v. Scott Specialty Gases
Case No. A087128
California Court of Appeal, First District, Division Two
EMPLOYMENT-ENFORCEABILITY OF AGREEMENT TO ARBITRATE-REPUDIATION OF ARBITRATION AGREEMENT BY ISSUANCE OF UPDATED EMPLOYEES HANDBOOK
Gabriel Martinez was hired by Scott in 1997, as a clean gas mixer and in similar positions until he was fired in 1998, after a dump cylinder exploded. Gabriel sued, alleging that the reason for the firing was a pretext and that he was fired for pointing out safety violations. Gabriel sued for wrongful termination in violation of public policy and his wife, Ann, who was also an employee of Scott sued for loss of consortium. Summary judgment was for Scott, on the grounds that the dispute was within the scope of an employment arbitration agreement he signed in 1997.
HELD: All of Gabriel’s claims fell within the scope of the 1997 agreement’s broad language. Ann’s loss of consortium stems from those same arbitrable claims and is also arbitrable. The fact that Scott issued a new employees' handbook in 1998 was neither repudiation nor reasonable reliance on the 1998 handbook. There was no express repudiation by a clear, positive and unequivocal refusal by Scott to perform. In context the use of the word "superseded" in the 1998 manual did not impliedly repudiate the arbitration agreement and Gabriel's signature was not required. Gabriel could not reasonably have relied on repudiation to their detriment. Affirmed.
Cedars-Sinai Imaging Medical Group v. Superior Court/Moore
Case No. B142626
California Court of Appeal, Second District, Division One
CIVIL-CONTEMPT-NECESSITY FOR WRITTEN NOTICE SERVED ON CITEE-WAIVER OF NOTICE
Sheila Moore, M.D., a radiologist, was a shareholder, director and employee of Cedars-Sinai Imaging Medical Group. When she became subject to a peer review investigation she asserted her right to inspect and copy the corporate records. When refused she obtained a judgment allowing inspection. Dissatisfied with the corporation's compliance, she moved for an order to show cause for contempt. The trial court stated its intent to issue an order to show cause, and although the court set a date for the contempt hearing, an order to show cause was never issued. The trial court nevertheless denied the corporation's request for a continuance, conducted a "default" contempt hearing, found the corporation in contempt, imposed a fine of $1,000, and ordered the corporation to pay the shareholder's attorneys' fees of more than $45,000.
HELD: A contempt proceeding is commenced by the filing of an affidavit and a request for an order to show cause. After notice to the opposing party's lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth. In contempt proceedings there is no presumption in favor of the regularity of the proceedings insofar as jurisdictional defects are concerned, and the existence of jurisdiction must be affirmatively shown. Despite the trial court's apparent intent to issue an order to show cause, a signed order was never issued. As a result, the court's orders relating to contempt are void. The waiver of notice of the hearing on her application for the order to show cause has nothing to do with the formalities attendant to contempt proceedings. "Notice waived" means the lawyer waives his right to written notice by opposing counsel of the lawyer's understanding of the court's ruling or of further notice concerning a hearing date. Mandate issued to vacate the orders made relating to contempt.
People v. Hoag
Case No. C031031
California Court of Appeal, Third District
CRIMINAL-FOURTH AMENDMENT-KNOCK NOTICE REQUIREMENT-EFFECT OF FAILURE TO COMPLY WITH KNOCK NOTICE WHEN SUSPECT NOT AT RESIDENCE WHEN SEARCH WARRANT SERVED
Hoag lived with his fiancée, Elizabeth Cunnagin. When he was absent from the residence the Sheriff served a search warrant at the residence. They knocked, waited 15 - 20 seconds and entered through the unlocked door. They found Elizabeth in the living room studying. No contraband was found in the house, but marijuana was found in the garage. Hoag was arrested when he returned. Although the court ruled that 15 to 20 seconds was not long enough for the deputies to have waited to satisfy the knock-notice requirement under the circumstances presented, Hoag's suppression motion was denied and he pleaded guilty to possession of marijuana for sale.
HELD: Under the Fourth Amendment, a person may challenge the legality of a search or seizure only if he can show a personal interest in the privacy of the place searched or the item seized; he may not vicariously challenge the alleged violation of another’s interests. A party who is absent at the time of a search of his home nevertheless has a sufficient privacy interest in the premises to assert a knock-notice violation. The Court further found that under the circumstances of this case, the police officers executing a search warrant on Hoag's home substantially complied with the knock-notice requirements, despite failing to wait a sufficient time before entering to permit any occupant therein to respond. The search was not unreasonable within the meaning of the Fourth Amendment. Affirmed.
People v. Frontier Insurance Company
Case No. C033619
California Court of Appeal, Third District
CRIMINAL-EXONERATION OF BAIL BOND-EFFECT OF FAILURE OF JUDGE TO SIGN ORDER EXTENDING TIME WITHIN STATUTORY PERIOD
Frontier posted a bond for the release of Benitez. Benitez was not present when the jury reached a verdict and did not appear at the continued hearing for a reading of the verdict. Benitez was found guilty, a bench warrant issued, and bail was forfeited. A notice of forfeiture was mailed on March 3, 1997. Within the 185-day statutory period, Frontier filed a motion to extend the period. After the September 9, 1997, hearing, the trial court granted the motion and extended the period for an additional 180 days. On March 27, 1998, after the expiration of the period of extension, summary judgment was entered. The clerk of the court signed the summary judgment.
HELD: The trial court can continue a hearing and still retain its jurisdiction to declare a forfeiture at a later time as long as it has a reason to believe that a sufficient excuse exists for the nonappearance. It was not an abuse of discretion for the trial court to determine that sufficient excuse may have existed for Benitez’s absence. Frontier, having received the benefit of additional time, is estopped from arguing that the trial court lacked jurisdiction to enter the order extending time. The conditions under which a surety may set aside a bail forfeiture are established by statute, which imposes a 180-day jurisdictional time limit within which such relief can be granted. The surety may move to extend that period for an additional 180 days. The motion was required to be served upon the prosecuting agency at least 10 days prior to the hearing date. Frontier set the hearing nine days beyond the 185 day period to comply with this requirement. Frontier was granted an additional 180 days. Frontier, having received the benefit of additional time, is estopped from arguing that the trial court lacked jurisdiction to enter the order extending time. In any event, the judgment is void for failure of a judge to sign the judgment within the time specified by law. Reversed and the trial court was directed to make an order to exonerate the bail.
People v. Loyd
Case No. A080542
California Court of Appeal, First District, Division Four
(Certified for publication with the exception of parts I, III, IV, and V.)
CRIMINAL-RECORDING OF PRISONERS CONVERSATION-INVASION OF PRIVACY-ADMISSION IN EVIDENCE-RECUSAL OF PROSECUTION
Loyd was convicted of two counts of first degree murder and one count of arson. The charges arose out of the death of her mother in 1992 and of a neighbor two years later. The arson occurred at the time of the neighbor's death. While she was in jail her telephone calls were recorded. Loyd's motion, to either to recuse the district attorney or dismiss the case, was denied.
HELD: Under federal law the secret monitoring and recording of unprivileged conversations in prisons, jails, and police stations does not constitute an unlawful search. The violation of this right of privacy offends no federal constitutional interest and it cannot warrant the exclusion of otherwise admissible evidence. While the prosecutor’s conduct offends the structural constraints on the prosecution as an officer of the court, the resulting invasion of defendant’s rights cannot be held to be so egregious as to shock the conscience. Although the prosecution bears the substantive burden of showing that its misconduct did not prejudice the defendant, where the content of the wrongfully obtained information is known to the defense, the defendant must point to some specific information capable of generating prejudice or a threat of prejudice. The recordings do not have a potential for prejudice to Loyd and what was identified Loyd is not clearly prejudicial. Neither recusal of the district attorney nor dismissal of the charges was warranted.
Federation Of Hillside And Canyon Associates v. City of Los Angeles
Case No. B126659
California Court of Appeal, Second District, Division Three
ENVIRONMENTAL-CHALLENGE TO ADEQUACY OF ENVIRONMENTAL IMPACT REPORT-FUNCTION OF COURT IN HOLDING FOR REJECTION OF EIR
The City of Los Angeles adopted a General Plan Framework as part of its general plan. Plaintiffs are advocacy groups for homeowners and the environment. They challenge the adequacy of an Environmental Impact Report concerning an amendment to the city’s general plan. The trial court found that the city had failed to circulate the transportation plan and ordered the city to do so but rejected Petitioners’ other challenges.
HELD: A general plan is a charter for future development within a city or county. It embodies fundamental policy decisions to guide future growth and development. Virtually all local decisions affecting land use and development must be consistent with the general plan. A city can adopt a specific plan to implement its general plan in a particular geographical area. A specific plan must be consistent with the general plan. CEQA does not expressly require a public agency to find that mitigation measures adopted for a project are feasible or that they will be implemented. CEQA requires the agency to find, based on substantial evidence, that the mitigation measures are required in, or incorporated into, the project; or that the measures are the responsibility of another agency and have been, or can and should be, adopted by the other agency; or that mitigation is infeasible and overriding considerations outweigh the significant environmental effects. The lead agency must adopt a monitoring program to ensure that the mitigation measures are implemented. When ruling on a challenge to the adequacy of an EIR the court must specify what action by the agency is necessary to comply with CEQA, but cannot direct the agency to exercise its discretion in a particular way. On the record, it would be inappropriate for this court to order a specific remedy other than to vacate the city’s approval of the GPF and its finding on mitigation of transportation impacts, but not its certification of the EIR. The EIR itself is adequate, but the GPF element and the city’s finding on transportation impacts is inadequate. Reversed with directions to grant the writ of mandate vacating the city’s approval of the GPF and specifying what actions by the city are necessary to comply with CEQA.
Stuparich v. Harbor Furniture Manufacturing
Case No. B135396
California Court of Appeal, Second District, Division Four
CIVIL-INVOLUNTARY DISSOLUTION OF CORPORATION ON APPLICATION OF MINORITY SHAREHOLDERS
Harbor is a family owned corporation, which manufactures furniture and owns a mobile home park. The mobile home was profitable, but the manufacturing business sustained losses. The essence of the problems among the family members is that some of the family drew substantial salaries from the money losing manufacturing operations and wanted to continue the business. Non-participating members of the family wanted to split the operations. After disputes over who owned what portion of the business and other concerns, plaintiffs filed suit for an involuntary dissolution of the corporation. The trial court granted Harbor's motion for summary judgment.
HELD: The power of minority shareholders to obtain involuntary dissolution was not unlimited. The procedure created by the statute does not authorize dissolution at will. The remedy of dissolution is not automatic, but rather, a matter for the court’s discretion. The minority must persuade the court that fairness requires the drastic relief of involuntary dissolution is not an automatic remedy. Plaintiffs did not raise a triable issue of material fact that dissolution of the corporation was reasonably necessary to protect their rights, and interests, and affirm the judgment. It cannot be said that the trial court erred in finding, as a matter of law, that the drastic remedy of liquidation is not reasonably necessary for the protection of the rights or interests of the complaining shareholder or shareholders. Affirmed.
Jacobson v. Snyder, Director of Department of Motor Vehicles
Case No. E026312
California Court of Appeal, Fourth District, Division Two
ADMINISTRATIVE-DEPARTMENT OF MOTOR VEHICLE HEARING FOR SUSPENSION OF DRIVER'S LICENSE-EVIDENCE-REQUIREMENT OF AUTHENTICATION OF WRITINGS-SEAL
Jacobson was arrested for driving while under the influence of alcohol. He surrendered his driver’s license to the arresting officer. At the DMV hearing for suspension of his license a document entitled "San Bernardino Co. Sheriff’s, Scientific Investigation Division 7-Apr-1999 Report on the Receipt and Examination for Ethyl Alcohol." The document lists four names, including "JACOBSON, GE." Across from Jacobson’s name, the document reflected a blood alcohol level of .16. The analyst is identified as "WHITE." Printed in ink with a rubber stamp at the end of the four entries is the emblem of the San Bernardino County’s Sheriff’s Department together with the name and address of the department’s scientific investigation division. Over objection this document was received in evidence. Jacobson's license was suspended. The trial court decided that the blood-alcohol finding was not supported by substantial evidence because the SID report would not have been admissible in a civil action over objection.
HELD: In administrative hearings, hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The SID report is the only evidence of Jacobson’s blood alcohol level. The DMV concedes that Jacobson objected to its admission as hearsay. Authentication of a writing is required before it may be received in evidence. Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or, (b) the establishment of such facts by any other means provided by law, such as by a statutory presumption. The Evidence Code section provides that a seal is presumed to be genuine and its use authorized if it purports to be the seal of a public entity in the United States or a department, agency, or public employee of such public entity. A seal is a particular sign, made to attest, in the most formal manner, the execution of an instrument. The emblem of the San Bernardino County’s Sheriff’s Department is not a seal. Affirmed.
Pick v. Cohen
Case No. BV 22601
Appellate Division Of The Superior Court For The County Of Los Angeles
REAL PROPERTY-RENT CONTROL ORDINANCE-LIMITATION ON EVICTION-RIGHT OF SURVIVING RELATIVE LIVING WITH THE LESSEE OF AN APARTMENT
Cohen continued to live in an apartment after a relative, who rented the apartment and with whom he was living, died. The West Hollywood Rent Stabilization Ordinance provides that If the original tenant vacates the unit, an additional person who has occupied the unit shall not be protected from eviction under this paragraph, unless the additional person lived with the tenant for at least one year and the tenant has died or become incapacitated. Judgment was for Pick, the landlord.
HELD: It is well settled that remedial legislation, such as the rent control ordinance at issue, must be liberally construed to effect its purposes. The section at issue applies only to certain specific relatives or domestic partners of the named tenant, and provides the named tenant is restricted to only allow one person in this category to move into the premises. This is a proper use of police power to protect a specific group of relatives or domestic partners residing in the controlled property on a permanent basis from involuntary displacement due to a death or incapacity in the family. The ordinance is valid. Reversed and remanded.
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