Wasserman's Appellate Summaries
October 4, 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.
Alpha v. Franchise Tax Board
Case No. B138063
California Court of Appeal, Second District, Division Seven
TAXATION-FRANCHISE TAX APPLICABLE TO REVENUE FROM SALE OF BLOOD AND RELATED PRODUCTS
Since 1978, Alpha has been in the business of processing, distributing, and selling human plasma, blood products, and blood derivatives. Alpha paid and filed four timely administrative claims for refund with the Franchise Tax Board. Alpha claimed an exemption from the franchise tax based on the Revenue and Taxation Code, which exempts blood, and by products from taxation. Alpha sued for a refund. Summary judgment was for the FTB.
HELD: The Revenue and Taxation Code provides: Human whole blood, plasma, blood products, and blood derivatives, or any human body parts held in a bank for medical purposes, shall be exempt from taxation for any purpose. The express language of the provision has no application to franchise taxes. The provision enumerates an exemption from taxation for certain items of tangible property. The corporate franchise tax is not one placed on tangible property, it is a tax on the corporation’s privilege of doing business in a given year. Affirmed.
Edgar O. v. Superior court/the Los Angeles County of Department of Children and Family Services
Case No. B141651
California Court of Appeal, Second District, Division Two
FAMILY LAW-DENIAL OF REUNIFICATION SERVICES TO FATHER INCARCERATED FOR MURDER OF HIS WIFE-REUNIFICATION DETRIMENTAL TO CHILD
Edgar O. is incarcerated and awaiting trial on charges that he murdered the children’s mother, Lisa U., on October 16, 1999, and has been in custody since the day of the murder. The DCFS report reiterated the children’s therapist’s detailed opinion of the emotional injuries suffered by Andrew, Edgar, and Cynthia, and their need to separate from petitioner, whom they feared. The court made an order providing that no reunification services be provided to the father, Edgar O., and setting a permanency planning hearing for the three minor children.
HELD: The statute relating to reunification services provides that: If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services, unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In considering the fact of Edgar's incarceration, it was not required that it be imposed by a sentence of imprisonment. The court was not required to speculate as to the length of Edgar's sentence. The order of the court was supported by clear and convincing evidence. Mandate denied.
Estate of McGuigan/Desmond v. Connell, State Controller
Case No. C030062
California Court of Appeal, Third District
ORDER
Modification of opinion filed herein on September 5, 2000, not effecting the judgment.
*Wagner v. Apex Marine
Case No. A087349
California Court of Appeal, First District, Division Two
TORTS-ACCRUAL OF STATUTE OF LIMITATIONS FOR LATENT DISEASE-ACCRUAL OF CAUSE OF ACTION FOR MULTIPLE DISEASES FROM COMMON CAUSE
On April 20, 1998, Wagner filed a complaint for personal injuries against numerous defendants, seeking damages for asbestos-related injuries. His alleged that alleged that he had worked as a merchant seaman for over 40 years and was exposed to asbestos dust during most of that time. He also alleged that, after he retired, he was diagnosed with asbestosis on January 27, 1998, and previously diagnosed with asbestos-related pleural disease on or about July 1993, from which he suffered no disability. Defendant's demurrers on the three year statute of limitations grounds, were sustained without leave to amend.
HELD: The discovery rule for determining when a cause of action accrues in latent disease cases has been applied in Jones Act cases. A cause of action for a tort accrues when there has been an invasion of a plaintiff’s legally protected interest, which in most cases occurs at the time that the tortious act is committed. Sometimes the injured person may not realize that a tort has been committed upon his person, since he may sustain a latent injury which either is not or cannot be discovered until long after the tortious act that caused the injury has occurred and after the applicable statute of limitations otherwise would have run. When the discovery rule applies, the cause of action accrues on the date the plaintiff discovers, or reasonably should have discovered, both the injury and its cause. When there are multiple diseases with the same cause the time to commence litigation does not begin to run on each separate and distinct disease until that disease becomes manifest. Wagner has stated a timely claim for his asbestosis, which was diagnosed in 1998 and is a separate disease from his previously diagnosed pleural disease. Reversed.
United States v. Archdale
Case No. 99-30297
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EVIDENCE-EFFECT OF FAILURE TO OBJECT TO ADMISSION OF HEARSAY-LEADING QUESTIONS ON DIRECT EXAMINATION-IMPEACHMENT-SENTENCING-PREPONDERANCE OF EVIDENCE TO DETERMINE FACT-DOUBLE COUNTING OF SENTENCING FACTORS
Archdale, a Native American, was convicted of sexual abuse of a minor and the second engaging in abusive sexual contact with a minor. He was sentenced to 180 months.
HELD: The Court described the appeal as consisting of a "gallimaufry" of claimed erroneous evidentiary rulings and insufficiency of the evidence. In the absence of an objection the filing of a motion in limine, which was not ruled on prior to trial, did not preserve the question of hearsay in the mother's testimony of what her daughter told her. In any event, there was no injustice in admission of this hearsay, which was cumulative to other testimony. The use of leading questions on direct examination is not always improper under the Federal Rules of Evidence. It is permitted on direct examination as may be necessary to develop the witness testimony, particularly that of a child. Admission of evidence that his children were in foster care for a period was admissible to impeach Archdale when he testified that the children were always with him. There is sufficient evidence to sustain appellant's conviction under the plain error standard. The record supports the finding that Archdale used force. For sentencing purposes findings of fact must be supported by a preponderance of the evidence; the relevant facts must be shown to be more likely true than not. In sentencing double counting of a factor is permitted when it is necessary to ensure that the defendant's sentence reflects the full extent of the wrongfulness of his conduct. The victim in this case was cognitively delayed, had borderline intelligence, and participated in special education classes. This supports the finding that the victim was unusually vulnerable. There was no error in imposing consecutive sentences. Affirmed.
In Re: Bonham/World Plus Inc./Atlantic Pacific Funding, et al. v. Compton, Trustee
Case No. 98-36081
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-APPEALABLE ORDER IN BANKRUPTCY PROCEEDING-PRAGMATIC APPROACH TO FINALITY OF ORDER-SUBSTANTIVE CONSOLIDATION OF CASES
Bonham formed World Plus, Inc. and Atlantic Pacific Funding. The purpose of WPI and APFC operations was to purchase frequent flier miles available from various airlines or third parties at a discount and use them to acquire airline tickets, which were then to be sold to the public at a substantial profit. The operation turned into a Ponzi scheme. Compton, the bankruptcy trustee filed over 600 adversary proceedings against investors of Bonham, WPI or APFC to avoid fraudulent transfers. Compton's motion to consolidate the separate bankruptcy proceedings was granted and the investor's motion to dismiss the adversary proceedings was denied. The district court found that the consolidation order was not a final appealable order.
HELD: The pragmatic approach to finality in bankruptcy has been adopted because certain proceedings in a bankruptcy case are so distinctive and onclusive either to the rights of individual parties or the ultimate outcome of the case that final decisions as to them should be appealable as of right. Substantive consolidation orders are final and appealable. A consolidation order is of the sort that can cause irreparable harm if the losing party must wait until the bankruptcy court proceedings terminate before appealing. The Court then found that the bankruptcy court did not err in substantively consolidating the estates, nor in doing so nunc pro tunc. The primary purpose of substantive consolidation is to ensure the equitable treatment of all creditors. There was no clear demarcation between the affairs of Bonham, WPI and APFC, and that Bonham often commingled the assets and names of WPI and APFC. Reversed the district court and remanded with instructions to affirm the Bankruptcy Court consolidation order.
*Barnett v.United States Air, Inc.
Case No. 96-16669
U.S. Court of Appeals for the Ninth Circuit
EMPLOYMENT-AMERICANS WITH DISABILITIES ACT-MANDATORY INTERACTIVE PROCESS TO ACHIEVE REASONABLE ACCOMMODATION-SENIORITY SYSTEM OF EMPLOYER NOT A PER SE BAR TO REASONABLE ACCOMMODATION
Barnett worked for ten years as a customer service agent for U.S. Air and its predecessor, PSA. Barnett injured his back while working in a cargo position. After returning from disability leave, Barnett found that he could not perform all of the physical requirements of handling freight. He used his seniority to transfer into the company's mailroom. Due to job cutbacks Barnett was to lose his position to senior employees and he would be returned to the cargo position. His proposal for special lifting equipment or job restructuring was denied. He was placed on injury leave. Barnett sued under the Americans With Disabilities Act. U.S. Air's motion for summary judgment was granted.
HELD: The ADA prohibits employers from discriminating against a disabled employee by failing to accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. Even if Barnett could not perform the essential functions of the cargo position, if he could perform the essential functions of another position in the company which he desires he is covered under the ADA. Employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations. The interactive process requires that employers analyze job functions to establish the essential and nonessential job tasks. In order to identify the barriers to job performance, employers must consult and cooperate with disabled employees so that both parties discover the precise limitations and the types of accommodations, which would be most effective. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. An employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process. Only in the event of undue hardship can a seniority system be a bar to reasonable accommodation. The ADA defines "undue hardship" as an action requiring significant difficulty or expense. Affirmed in part and reversed in part and remanded.
Andrews v. TRW, Inc.
Case No. 98-56624
U.S. Court of Appeals for the Ninth Circuit
ORDER-FAIR CREDIT REPORTING ACT-IDENTITY THEFT
Amendment to opinion filed on July 17, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
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