Wasserman's Appellate Summaries
October 11, 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.
In Re: DeJohn/Orange County Social Services Agency v. Johnell P.
Case No. G027063
California Court of Appeal, Fourth District, Division Three
FAMILY LAW-REQUIREMENT FOR VIGOROUS EFFORT TO LOCATE AND SERVE PARENTS OF MINORS OF HEARINGS EFFECTING PARENTAL RIGHTS AND CUSTODY OF THE MINORS
DeJohn and Edward were taken into protective custody because no one had picked them up from their day-care facility. The father had exhausted his allotted time to stay at an Orange County shelter. His and the mother’s whereabouts were unknown, and the Social Services Agency had no information concerning mother’s ability or desire to provide for the minors. The father was located in jail. The search for mother was unsuccessful. The SSA worker sent three registered letters to various addresses where the mother might be found and having received no response, she attested she had at that time "exhausted all possible leads." There is no indication the social worker asked father to direct her to mother’s relatives, close friends or others who might know her whereabouts. No attempt was made to notify mother of the six-month review hearing. One month after the six-month review hearing, SSA located the children’s maternal grandmother and, through her, obtained mother’s address in Las Vegas. SSA then sent mother notice of the permanency hearing. The circumstances surrounding SSA’s belated discovery of the grandmother are not explained in the record. The court denied the mother's motion to set aside past orders, reasoning strict compliance with statutory notice was not necessarily required, and mother had failed to prove notice of the six-month review hearing would have made a difference in the outcome. Parental rights were terminated.
HELD: The failure to give notice carries such grave consequences in the dependency court, where parent-child ties may be severed forever. Social services agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned. Where, as here, the agency has not even attempted to advise a parent of proceedings that affect her fundamental rights as a parent, we will not accept an argument that SSA’s failure to give notice was harmless. Reversed.
Thompson v. Mercury Casualty/Dominguez, A Minor
Case No. E025722
California Court of Appeal, Fourth District, Division Two
INSURANCE-NECESSITY FOR CONSPICUOUS AND CLEAR EXCLUSION IN POLICY
The Hughletts' had a policy for automobile liability coverage in the amount of $100,000/$300,000 with Mercury Casualty. The Mercury insurance policy contained a provision, "Condition 23," that limits coverage to the statutorily required minimums for persons using the car with the named insured’s permission. In this declaratory relief action, the trial court found "Condition 23" inconspicuous as a matter of law. The Hughletts loaned the vehicle to a friend, who wound up in a collision with a third person, Catherine Thompson. Mercury insisted that its limit of liability was $15,000. Thompson sued for declaratory relief. The trial court found the language inconspicuous and unenforceable.
HELD: Exclusionary clauses in an insurance policy are subjected to heightened scrutiny. They must be conspicuous, clear and plain; if they do not meet this test, such clauses will be strictly construed against the insurer. A limitation is conspicuous when it is positioned and printed in a form that adequately attracts the reader’s attention to the limitation. The policy should be read as a layman would read it and not as it might be analyzed by an attorney or an insurance expert. The Court found the exclusionary clause was not conspicuous. Affirmed.
Ivy Trucking v. Creston Brandon Corporation
Case No. E023829
California Court of Appeal, Fourth District, Division Two
CIVIL-MECHANIC LIEN BY HAULER OF MATERIAL TO WORK OF CONSTRUCTION UNDER CONTRACT WITH SUBCONTRACTOR-SUBCONTRACTOR AS STATUTORY AGENT OF OWNER
Ivy Trucking was hired by a subcontractor, Creston Brandon to haul fill dirt to a Caltrans freeway project under construction by Heritage, the general contractor. Creston Brandon did not pay Ivy, Ivy served a preliminary notice on Caltrans and then a stop notice. To obtain release of the stop notice, Heritage filed a release bond and a statutory payment bond. Ivy then filed suit. The trial court ruled that as a transporter of materials it did not own to the construction site Ivy was not a statutory claimant and not entitled to recovery because it did not provide labor or materials to the Caltrans project and cannot assert a mechanic’s lien.
HELD: A section of the California Civil Code specifies the types of workers that can secure a mechanics lien for work or materials supplied for a work of improvement. A transporter of material is not included in the Civil Code section. Exceptions occur to the above rule when: (1) the one performing the hauling owns the materials and the cost of hauling is part of the cost of the materials; (2) the hauler participates in the work of improvement; and, (3) the hauler is hired by an agent of the owner. In this case the third exception permits Ivy a basis for recovery. Creston Brandon is an agent of the owner, as provided by statute. Reversed.
Ruscigno v. American NAtional Can Company
Case No. B136917
California Court of Appeal, Second District, Division Four
EMPLOYMENT-WRONGFUL TERMINATION-PREEMPTION OF NATIONAL LABOR RELATIONS ACT-SUPERVISORS RIGHT TO GIVE TESTIMONY ADVERSE TO EMPLOYER
Ruscigno filed suit fore wrongful termination, alleging that he was terminated because he testified unfavorably to defendant during an employee’s grievance proceeding held pursuant to a collective bargaining agreement. The trial court sustained defendant’s demurrer on the ground that plaintiff’s complaint is preempted by the National Labor Relations Act.
HELD: The discharge of a supervisor is unlawful when it interferes with the right of employees to exercise their rights under the NLRA, as when they give testimony adverse to their employers’ interest or when they refuse to commit unfair labor practices. Ruscigno's claim is preempted by the NLRB. 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
ORDER
Modification of opinion filed herein on September 26, 2000, not effecting the judgment.
Kirchmann v. Lake Elsinore Unified School District
Case No. E026060
California Court of Appeal, FOurth District, Division Two
ORDER
Modification of opinion filed September 27, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
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