Wasserman's Appellate Summaries
October 17, 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 18, 2000
7 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
Déjà vu all over again. Another credibility finding reversal of the Board of Immigration Appeals is reversed by the Ninth Circuit.
Hearsay of coconspirator admissible in criminal trial when sufficient indicia of reliability.
What is conspicuous notice of time limit for contesting change in trust in Probate proceeding.
FOR A QUICK REVIEW VISITORS AND SUBSCRIBERS CAN SEE WASSERMAN'S APPELLATE SUMMARIES.
Santa Margarita Area Residents Together v. San Luis Board Of Supervisors
Case No. B136088
California Court of Appeal, Second District, Division Six
REAL PROPERTY-DEVELOPMENT AGREEMENT STATUTE-INFRINGEMENT ON GOVERNMENT POLICE POWER
A landowner and the County agreed to a major development plan for real property under the provisions of the Development Agreement Statute. The Santa Margarita Area Residents Together sought a writ of mandate, asserting that the agreement is invalid because it covers the planning stage of a real estate development before buildings or other structures have been designed or approved.
HELD: The Development Agreement Statute permits a city or county to enter into a development agreement with any property owner for the development of the property. The statute allows a city or county to freeze zoning and other land use regulation applicable to specified property to guarantee that a developer will not be affected by changes in the standards for government approval during the period of development. The statute also expressly contemplates discretionary approvals after the execution of a development agreement. The agreement, which assigns rights and obligations to both government and developer concerning the planning of a large real estate project, complies with the statute and does not contract away the County's police power. Affirmed.
Save Open Space Santa Monica Mountains v. Superior Court/County Of Los Angeles
Case No. B138964
California Court of Appeal, Second District, Division Two
CIVIL-DISCOVERY-MOTION FOR ATTORNEY FEES UNDER PRIVATE ATTORNEY GENERAL THEORY-LIMITATION ON DISCOVERY-CONTRIBUTION TO LITIGATION FUND-PERSONAL BENEFIT OF LITIGATION FUND CONTRIBUTORS
Save Open Space Santa Monica Mountains sought mandate to vacate a County of Los Angeles decision approving time extensions to maps for two neighboring proposed land divisions. SOS received a judgment on one cause of action. The court also issued a writ of mandate directing the County to set aside the decision approving the one-year extension for the large land division. SOS then applied for its attorney fees as a private Attorney General. To oppose the motion the County sought discovery of the persons and amounts paid to oppose the application for fees. The trial court found that the discovery of the retainer agreement provisions was important and denied the SOS motion for a protective order.
HELD: Where there is a basis for the trial court’s discovery ruling and the evidence supports it, a reviewing court will not substitute its opinion for that of the trial court. As a general rule, a party may obtain discovery regarding unprivileged matters that are relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. The party seeking an award on the private attorney general theory bears the burden of establishing that its litigation costs transcend its personal interest. The County has established the need for discovery but the scope of such discovery must be limited to assure protection of the constitutional right of those joining SOS’s cause. A peremptory writ issued directing the superior court to vacate its order and enter a new order that limits the manner in which the amount of contributions and the identity of contributors is disclosed.
Harustak v. Wilkins, Trustee
Case No. F032805
California Court of Appeal, Fifth District
PROBATE-NOTICE OF TIME LIMIT FOR CONTESTING ACTION-CONSPICUOUS NOTICE
Vernon and Rosielee Wilkins created a trust providing that upon the death of both settlors a certain piece of real property would be distributed to Judy Wilkins and Richard Heinrich. The remainder of the estate would be divided equally between Judy Wilkins and Frances Harustak. Judy was named as first successor trustee and Richard was named as second successor trustee. The terms of the trust also provided that upon the death of either settlor the trust would become irrevocable. After Vernon died Rosielee signed a document purporting to amend the trust, thereby eliminating Richard as a beneficiary and removing him as second successor trustee. After Rosielee died Judy served Richard and Frances with a notice of the change in trust status, and informing them that any action to contest the trust must be brought within 120 days of the notice. Richard and Frances did not file their action contesting the trust until 147 days after the trustee had mailed the notice. Judy contested the motion, on the ground that it was not timely. The court found the petition time barred.
HELD: The interpretation of a written instrument, even though it involves what might properly be called questions of fact, is essentially a judicial function. The de novo standard of review applies. The Probate Code requires a conspicuous warning in the trustee’s notice of the time to contest a change in the trust status. The notice is required by statute to be printed in the 10-point boldface type contained in a separate paragraph or a reasonable equivalent. In this case the notice was printed in a separate paragraph using non bold 12-point type. Since the rest of the notice was also in 12-point type this was not a sufficiently conspicuous notice of the time limitation for contesting the trust change nor was it a reasonable equivalent. Reversed and remanded.
In Re: Williams, on Habeas Corpus
Case No. B133998
California Court of Appeal, Second District, Division Four
ORDER
Modification of opinion filed on September 19, 2000, not effecting the judgment.
Salaam v. Immigration And Naturalization Service
Case No. 98-71439
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-ADVERSE CREDIBILITY FINDING MUST BE SUPPORTED BY AN ARTICULABLE BASIS BASED ON THE RECORD-EASILY AVAILABLE CORROBORATING EVIDENCE MUST BE PRODUCED OR THE FAILURE EXPLAINED WHEN THERE IS A CREDIBILITY QUESTION
Salaam is a 23-year-old Nigerian citizen. He had a high profile position with an organization voicing criticism of the government. When the Nigerian police attempted to arrest him for the fifth time he fled the country and would up in the United States. His application for asylum was denied at his hearing, based on credibility grounds. The BIA disagreed with the Immigration Judge's finding of adverse credibility but concluded Salaam had not met his burden of proving eligibility for asylum because aspects of his claim were implausible and he failed to provide corroborating evidence.
HELD: The BIA should clearly address the issue of credibility whenever the IJ makes a finding that an applicant is not credible. The BIA is strongly encouraged to discuss or expressly adopt, rather than ignore, the IJ's credibility findings in an asylum case. The BIA must have a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief. An adverse credibility determination that is based on speculation and conjecture and is not supported by the record will be reversed. The BIA's statement that it is not plausible that Salaam was a leading member of the FNM at age eighteen is based entirely on an unsupported assumption and a belief that important organizations do not have young leaders. Where the IJ has reason to question the applicant's credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review. Petition granted and remanded for the exercise of the Attorney General's discretion.
United States v. Ruiz
Case No. 99-10224
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-WITHDRAWAL OF PLEA OF GUILTY AFTER SENTENCING WHEN MANIFEST INJUSTICE WOULD RESULT
Ruiz pled guilty to charges of conspiracy to distribute and possess methamphetamine. One of his coconspirators sent him a declaration that he would testify that Ruiz was not involved in the conspiracy and that he had told the officers Ruiz was involved because they represented that it would reduce his sentence. Ruiz' motion to withdraw the plea, based on newly discovered exculpatory evidence was denied.
HELD: The rules of Criminal Procedure provide that if a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. After sentencing a plea of guilty can only be withdrawn upon a showing of manifest injustice. Where there is credible evidence the defendant's change of mind is not motivated by a co-defendant's sentence but by another circumstance, such as potentially exculpatory evidence, he should be permitted to withdraw his plea for any fair and just reason. Reversed and remanded.
United States v. Boone
Case No. 99-50225
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-EVIDENCE-RECORDED HEARSAY STATEMENT OF COCONSPIRATOR-GUARANTEE OF TRUSTWORTHINESS OF HEARSAY STATEMENT
Williams girlfriend surreptitiously tape recorded him implicating himself and Boone in an armed robbery. Over Boone's hearsay and Confrontation Clause objections, the tape recording was received in evidence against Boone as statements against interest.
HELD: The Confrontation Clause forbids the use of hearsay against a criminal defendant at trial unless the evidence falls within a firmly rooted hearsay exception or otherwise contains particularized guarantees of trustworthiness. At the time the recording was made, Williams was confiding in his girlfriend/coconspirator and had no motive to shift the blame to someone else or to minimize his own culpability. Williams's lack of exculpatory motive
while inculpating himself provides the circumstantial guarantee of
reliability that underpins the hearsay exception for statements against
interest. The circumstances attendant to the making of Williams's
self-incriminating statements provide a particularized guarantee of
trustworthiness, the Confrontation Clause is satisfied and the statements
were properly received in evidence. Affirmed.
Z-Seven Fund/Desiderio v. Motorcar Parts & Accessories, Inc.
Case No. 00-55014
U.S. Court of Appeals for the Ninth Circuit
CIVIL-APPEAL-CLASS LITIGATION-APPOINTMENT OF LEAD PLAINTIFF IS NOT APPEALABLE AS COLLATERAL ORDER
Fourteen separate civil actions were commenced in the federal courts of New
York and California against Motorcar Parts & Accessories, Inc. alleging
violations of the securities laws. Four different individuals and groups filed applications seeking
appointment as lead plaintiff. Several plaintiff groups objected to the
court's appointment of the lead defendant.
HELD: The district court's order designating a lead plaintiff is not a
conclusive, immutable determination of the issue. It can be revisited if
circumstances warrant. The statutory language does not require a specific
reservation before a lead plaintiff designation can be reopened. The
appointment does not resolve an important issue that is completely separate
from the merits and the order is not effectively unreviewable on appeal.
Since the appointment does not meet any of the three requirements of the
collateral order doctrine, or for that matter, the pragmatic finality
doctrine, it cannot be appealed at this time. Appeal dismissed.
United States v. Rivera-Sanchez
Case No. 99-10275
U.S. Court of Appeals for the Ninth Circuit
ORDER
The case was ordered to be reheard by the en banc court.
*Change in law, interesting case, or just watch out!
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