Wasserman's Appellate Summaries
October 12, 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.
O’Keefe v. Kompa
Case No. G018844
California Court of Appeal, Fourth District, Division Three
CIVIL-STAY OF ENFORCEMENT OF ATTORNEY FEES AWARD TO DEFENDANT-RECORDING ABSTRACT OF JUDGMENT BY PREVAILING DEFENDANT-LITIGATION PUBLICATION PRIVILEGE
O’Keefe sued to recover $30,000 he was forced to pay as guarantor on a loan to a failed business entity. He also sought attorney fees based on a fee-shifting provision in the loan documents. Not only did O’Keefe lose that case, but he was ordered to pay just over $50,000 for defendants’ attorney fees under the Civil Code. O’Keefe appealed the judgment, including the attorney fees order, but posted no bond or undertaking. Kompa, as attorney for some of the prevailing defendants filed an abstract of judgment. O'Keefe then sued attorney Kompa and his clients for abuse of process and slander of title. Defendants' demurrer was sustained on the ground that the appeal of an attorney fees judgment did not automatically stay collection efforts.
HELD: A four-part test determines whether a particular statement falls within the statutory litigation privilege of a publication in the course of a judicial proceeding. To be privileged a statement must: (1) be made in a judicial proceeding; (2) by litigants or other authorized participants; (3) aim to achieve the litigation’s objects; and, (4) have some logical connection or relation to the proceeding. The scope of publication includes non-communicative conduct like the filing of assessment liens or the filing of a mechanic’s lien. The privilege also applies to conduct or publications occurring outside the courtroom, to conduct or publications which are legally deficient for one reason or another and even to malicious or fraudulent conduct or publications. Under these criteria defendants’ enforcement efforts are clearly privileged under the Code of Civil Procedure. Affirmed.
Brown, as Mayor v. The Fair Political Practices Commission
Case No. A091305
California Court of Appeal, First District, Division Three
GOVERNMENT-PARTICIPATION OF MAYOR IN REDEVELOPMENT DECISION EFFECTING HIS REAL PROPERTY-LEGAL REQUIREMENT FOR PARTICIPATION OF MAYOR IN REDEVELOPMENT DECISIONS
Mayor Jerry Brown was participating in decisions concerning a redevelopment project near property he owns. The Fair Political Practices Commission concluded the mayor’s participation in the project was not legally required within the meaning of the Political Reform Act's conflict of interest provisions, and was therefore barred. Brown sought mandate.
HELD: The mayor of Oakland no longer serves as a member of the city council, but has the power to break tie votes on the council and suspend ordinances for reconsideration in some circumstances. The mayor also serves as chief executive officer of the Redevelopment Agency of the City of Oakland. The mayor is assigned a leadership role in a broad variety of governmental decision making concerning economic development in Oakland. Under the city charter an official with a conflict of interest is not barred from joining in an action or decision if his participation is legally required for the action or decision to be made. The mayor’s participation in the redevelopment project is legally required in order for the Oakland City charter to function as the voters' intended. Mandate issued to vacate the FPPC opinion.
United States v. Jackson
Case No. 99-50302
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-ORDER FOR RESTITUTION FROM ERISA PENSION PLAN FUNDS
Jackson pled guilty to six of 46 counts of embezzling labor union assets. Jackson agreed to make full restitution for the losses caused by his crimes, in an amount to be set by the district court based on his ability to pay. He was ordered to pay restitution in the total amount of $217,878.15 with $63,434.05 to be paid within thirty days and another $194,000 within ninety days. The $194,000 figure represented the amount in Jackson's ERISA plan. No objection to the order was made by his counsel that the order violated the anti-alienation provision of ERISA.
HELD: Because an objection to the restitution order was not made at the sentencing, the issue is reviewed for plain error. ERISA's anti-alienation provision states that each pension plan shall provide that benefits provided under the plan may not be assigned or alienated. The restitution order was clearly premised on its authority to order Jackson to cash out his undistributed ERISA pension plan funds. The district court had no authority to make such order. Reversed and remanded.
United States v. Hooper/Ralph
Case No. 99-50233
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FORFEITURE OF PROCEEDS OF DRUG SALES-INNOCENT SPOUSE EXCEPTION FOR COMMUNITY PROPERTY
Hooper and Ralph are wives of men who pleaded guilty to federal drug trafficking offenses. Their husbands' sentences included forfeiture of various assets, including the proceeds of drug sales and property purchased with those proceeds. The wives allege that they are innocent spouses and their 50% of the community property should not be subject to forfeiture. The district court denied their claims.
HELD: The California Family Code provides that except as otherwise provided by statute, all property, real or personal acquired by a married person during the marriage while domiciled in California is community property. There is no California statute excluding illegally gained proceeds from this rule. The federal statute provides that irrespective of any provision of State law, persons convicted of drug trafficking forfeit any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation. For one of the exceptions to apply a claimant must have a vested interest in the property claimed exempt from forfeiture at the time their husbands committed their crimes. Claimants did not have such interest prior to the crimes. Proceeds of the crime do not precede the crime. Affirmed.
United States v. Furrow
Case No. 99-30232
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FOURTH AMENDMENT-WARRANTLESS SEARCH-PROTECTIVE SWEEP-SEARCH WARRANT SUPPORTED IN PART BY EVIDENCE FOUND IN ILLEGAL SEARCH-CONSENT TO SEARCH AFTER WARRANTLESS SEARCH
Officers responded to complaints of a loud party. They observed juveniles drinking beer inside. The juveniles exited the house at the officer's request. Several were found in possession of marijuana and arrested. The officers were then advised by a Deputy Attorney that there was not sufficient cause for a warrant to issue, but they could make a protective sweep of the house. The officers entered and found marijuana pipes. Isaiah Furrow, another juvenile, came to the house and indicated he was the son of the house owner and gave permission to search. Numerous marijuana pipes were found and marijuana resin. Based on the information they had as a result of the search and other evidence, the officers secured a search warrant. In executing the warrant 147 marijuana plants were found. Furrow entered a conditional plea of guilty to one count of manufacturing marijuana after his motion to suppress evidence found in two preliminary warrantless searches and a third search conducted after police obtained a warrant based on drug evidence discovered in the second search, was denied.
HELD: The question of protective sweep and exigent circumstances inquiries are related. A specific exigent circumstance, the safety risk to officers presented by unsearched premises, is what permits the warrantless protective sweep. Exigent circumstances beyond those impairing officer safety permit a much broader category of searches than just the protective sweep. Whatever else this particular search might have been, it was not a protective sweep. Exigent circumstances are those that would cause a reasonable person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. The government has failed to carry its heavy burden by showing exigent circumstances. An illegal protective sweep or exigent circumstances search taints a subsequent consent to search. If Isaiah, who was in hiding during the time of the initial search, was oblivious to the fact of an earlier search at the time he gave his consent to the second search, then the consent cannot be considered tainted. The district court correctly held that the failure of Furrow to make a substantial showing of a false or reckless statement to secure the search warrant precluded holding a Franks hearing. Affirmed and reversed in part and remanded.
United States v. Amano
Case No. 99-10607
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-MIRANDA RIGHTS IN ENGLISH TO FOREIGN NATIONAL-SUPPRESSION OF EVIDENCE FOR FAILURE TO ADVISE OF RIGHT OF FOREIGN NATIONAL TO CONTACT CONSULATE
Police officers stopped Amano after a complaint from a restaurant that he had paid with a counterfeit $20 bill. Before questioning him the officer read the Miranda rights to Amano in English. Amano speaking in English with a Japanese accent, said that he understood his rights and told the officers he was from Japan. After his arrest he signed a standard-form waiver of Miranda rights printed in English. Amano said he understood his rights and was willing to speak to the agent without having a lawyer present. Amano made oral statements (in English) that he had made and used counterfeit currency and signed a written statement (also in English) to the same effect. He also signed a form, which was printed in English, authorizing a search of his apartment. Amano was not informed of his right to contact the Japanese consulate. He was not asked if he needed an interpreter. A search of his apartment revealed $13,000 in counterfeit money and computer manuals in English. After his motion to suppress was denied Amano entered a conditional plea of guilty to manufacturing counterfeit obligations.
HELD: Even if the Japan Convention contained an implied right to individual notification, the exclusion of evidence is not a proper remedy for a violation of that right. The findings of fact the district court made relating to Amano's understanding of English are not clearly erroneous. Amano understood his Miranda rights and his waiver was voluntary. Affirmed.
InRe: The Exxon Valdez/Icicle Seafoods v. Exxon Corporation
Case No. 96-36038
U.S. Court of Appeals for the Ninth Circuit
CIVIL-SETTLEMENT AGREEMENT WITH SOME PLAINTIFFS IN CLASS ACTION WHICH CONTAINS A CEDE BACK OF DAMAGES-NECESSITY TO REVEAL CEDE BACK PROVISION OF SETTLEMENT AGREEMENT TO JURY
The Seattle Seven is a group of seafood processors who utilize seafood caught in Prince William Sound. As a result of the infamous Exxon Valdez oil spill they sued Exxon for compensatory and punitive damages for the interruption in their operations. Their settlement agreement with Exxon did not include a release and did not formally terminate the Seattle Seven's claims against Exxon. The Seattle Seven Agreement provided that they would not execute on any compensatory damages award entered in their favor and they would only retain a portion of any punitive damages award received. At the class action trial the jury was not told of the provision for the Seattle Seven to retain only a portion of the punitive damages awarded. The jury awarded $5 billion in punitive damages. As a result of the failure to inform the jury of the cede back provision of the settlement the Seattle Seven were excluded from receiving any part of the punitive damages.
HELD: The Court discussed the problems of settlement and the procedure for allocation of damages when multiple defendants are sued and analogous problems when there is a mass mandatory class action against one defendant. The court concluded that far from being unethical, cede back agreements make it easier to administer mandatory class actions for the assessment of punitive damages and encourage settlement in mass tort cases. Such agreements should typically be enforced. The function of the jury is to assess damages, but not determine how much defendants should actually pay or how much plaintiffs should actually receive. To foster settlement objectives cede back agreements should generally not be revealed to juries deliberating on punitive damages. Denying the Seattle Seven recovery on the basis of Exxon's actions would be manifestly unfair. Refusing to enforce the cede back provision is not a remedy that relates to the error complained of. Vacated the allocation of punitive damages and remanded.
Abovian v. Immigration and Naturalization Service
Case No. 98-70934
U.S. Court of Appeals for the Ninth Circuit
ORDER
Minor modification of opinion filed on July 19, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
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