Wasserman's Appellate Summaries
October 16, 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.
KEEPING CURRENT, October 13, 2000
5 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
Even after the Bankruptcy Court approves an application for the services of a professional it has a right to review the reasonableness of a fee arrangement with the professional after the services have been rendered.
Failure to file for a fair value determination within three months of a judicial foreclosure is not correctable by a motion to be relieved for excusable neglect.
Life Savings Bank v. Wilhelm
Case No. E025950
California Court of Appeal, Fourth District, Division Two
REAL PROPERTY-JUDICIAL FORECLOSURE-REQUIREMENT FOR FILING FOR FAIR MARKET VALUE HEARING IS IN THE NATURE OF A STATUTE OF LIMITATIONS
Life Savings Bank secured a judgment of judicial foreclosure of real property. It missed the three month filing deadline for its application for a hearing to determine the fair value of real property in order to obtain a money judgment for the deficiency. Concurrently with filing its late application, Life filed a motion for relief from its tardy filing. The trial court held that the three-month period for filing an application for a fair value hearing is essentially a statute of limitations and relief from default was not available.
HELD: A statute of limitation prescribes the time period beyond which suit may not be brought. Statutes of limitations are distinguished from procedural limits governing the time in which parties must do an act because they fix the time for commencing suit. The Court concluded that the statutory 3 month period for filing a fair value hearing to secure a deficiency judgment in a judicial foreclosure is in the nature of a statute of limitations. The trial court properly refused to consider relief from the late filing. Affirmed.
Hassoldt v. Patrick Media Group
Case No. B113905
California Court of Appeal, Second District, Division Three
(Certified for publication with the exception of part VII.)
CIVIL-LIMITATION ON RIGHT TO DAMAGES FOR SPOLIATION OF EVIDENCE-EVIDENCE-USE OF EVIDENCE OF OTHER ACTS TO PROVE IDENTITY-MEASURE OF DAMAGES FOR DAMAGE TO TREES-FAILURE OF JURY TO SPECIFY ON WHICH CAUSE OF ACTION DAMAGES WERE AWARDED
The Hassoldts operate a preschool called Der Kindergarden. They established a trust (the Yankee Trust), which owns the land and leases it to Der Kindergarden, Inc., a corporation. Patrick Media Group is engaged in the business of outdoor advertising. The Hassoldts suspected that PMG had trimmed a tree on their land to better show one of their advertising signs. The Hassoldts sued alleging four causes of action, including spoliation of evidence of PMG's tree cutting activities. The jury answered all four special findings in the affirmative, relating to PMG's responsibility for cutting the trees, whether there was spoliation of evidence, whether the cutting and spoliation were done with fraud, oppression or malice. In addition to the special findings, the jury returned a general verdict awarding $130,000 in damages to the Hassoldts. This verdict form did not indicate the cause or causes of action that formed the basis of the damage award. A second verdict awarded $150,000 for punitive damages for spoliation of evidence.
HELD: There is no tort remedy for the intentional spoliation of evidence by a party to the cause of action to which the spoliated evidence is relevant, in cases in which, as here, the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action. This recent holding by the California Supreme Court should be given retroactive effect, in accordance with the general rule that judicial decisions are retroactively applied. The liability phase of the trial was infected with error. Testimony was admitted by a former employee of PMG that he trimmed trees for PMG and its predecessor, but only obtained permission from property owners 10 to 20 per cent of the time. The distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant. The usual measure of damages in a case involving damage to a tree is the difference between the value of the real property before and after the injury. The trial court improperly instructed the jury on the measure of damages. The court should have granted a nonsuit on the Hassoldts' claim for emotional distress. Reversed.
United States v. Johnson
Case No. 99-10485
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SUFFICIENCY OF EVIDENCE-EMBEZZLEMENT
Money was diverted to Johnson by her sister, who worked for the Agricultural Stabilization Conservation Service. The funds were deposited in an intermediate account, "United States Department of Agriculture, Agriculture Stabilization and Conservation Service" and then withdrawn by Johnson. She was convicted of one count of receiving stolen Government property, by receiving money embezzled from the Agricultural Stabilization Conservation Service. The trial court entered a judgment of acquittal, since there was more funds in the intermediate account than the amount of the check for which she was convicted.
HELD: The evidence demonstrated that the Elko ASCS office was not authorized to open or maintain any local bank accounts; that the USDA-ASCS account opened by Johnson's sister, Blackstock was unauthorized and illegal; that stolen Government money was being deposited into that account and disbursed by Blackstock to Johnson; that Johnson received numerous checks drawn on the illegal USDA-ASCS account, including check #1127; that Johnson was the payee on each of the checks she received; that each of these checks bore the endorsement "Diana Johnson"; and, that Johnson admitted signing check #1127 and depositing it into her personal bank account. A rational jury could conclude from the evidence that all money deposited into the illegal USDA-ASCS account was property of the Government and that any money drawn from the USDA-ASCS account, thus, was also property of the Government. The evidence was sufficient to convict. Judgment vacated and remanded.
In Re: B.U.M. International, Debtor/Freidman Enterprises v. B.U.M. International
Case No. 99-55236
U.S. Court of Appeals for the Ninth Circuit
BANKRUPTCY-RIGHT OF BANKRUPTCY COURT TO REVIEW FEE AGREEMENT WITH PROFESSIONAL AFTER SERVICES RENDERED
B.U.M. filed a Chapter 11 bankruptcy petition, and made an application to employ Friedman Enterprises as a financial and strategic consultant. The proposed employment provided for the payment of a flat monthly fee of $7,500 plus expenses and certain contingent fees. The Bankruptcy Court approved the hiring of FE, subject to the provision that all fees and costs of Friedman are subject to Court approval. BUM made a motion for the sale of most of the corporate assets, which was denied, the court noted several serious defects with the sale plan, including a lack of evidence that there was an actual buyer. The Creditors' Committee's reorganization plan was approved. FE made an application for fees, which was approved as to the monthly amount and denied as to the contingency fee requested.
HELD: The Bankruptcy code provides that professional persons may be employed, with the court's approval. The terms of such employment may be on any reasonable terms and conditions of employment, including a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. In this case the record clearly indicates that the employment agreement was not unconditionally approved. The better practice would be for a bankruptcy court to accept or reject a proposed employment agreement, not to conditionally accept it subject to later review. The court's finding that FE's services did not benefit the estate is not clearly erroneous. The decision to deny the fees was not an abuse of discretion. Affirmed.
Mayfield v. Calderon, Warden
Case No. 97-99031
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-INEFFECTIVE ASSISTANCE OF COUNSEL-FAILURE TO PRESENT MITIGATING TESTIMONY AT PENALTY PHASE
Mayfield is a California state prisoner, convicted of two counts of first degree murder and under a sentence of death. Mayfield argues that he was denied effective assistance of counsel at both the guilt and penalty phases of his trial, that the jury instructions were unconstitutional, and that California's death penalty scheme under which he was sentenced violates the Eighth and Fourteenth Amendments. The district court found that there was deficient representation in the penalty phase of the trial.
HELD: Because Mayfield filed his habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act, the Act's more stringent standards for issuance of a writ of habeas corpus do not apply. Since his appeal was after the AEDPA he was required to get a Certificate of Appeal. The CPC submitted was inadequate and the Court treated his appeal as an application for a COA. Under the AEDPA, a COA may not issue unless the applicant has made a substantial showing of the denial of a constitutional right. Mayfield has demonstrated that reasonable jurists would find the district court's assessment debatable with respect to only the issue of ineffective assistance of counsel at the penalty phase of the trial. The COA was granted with respect to that issue alone. To prevail on the claim of ineffective counsel Mayfield must show, in addition to deficient performance, resulting prejudice. To show prejudice at sentencing, Mayfield must show that there is a reasonable probability that absent the error, the sentence would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Because mitigating testimony from Mayfield's family and friends would have repeated many of the topics discussed by Dr. Rath, it would have opened the door for damaging rebuttal evidence, and risked alienating jurors, Mayfield was not prejudiced by his counsel's failure to present such evidence at the penalty phase. Affirmed.
United States v. Velarde-Gomez
Case No. 99-50602
U.S. Court of Appeals for the Ninth Circuit
ORDER
Amendment to opinion filed September 13, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
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