Wasserman's Appellate Summaries
October 20, 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 20, 2000
3 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
Who can challenge an award of attorney fees in a class action?
FOR A QUICK REVIEW VISITORS AND SUBSCRIBERS CAN SEE WASSERMAN'S APPELLATE SUMMARIES.
Wainright v. Superior Court/Sinkler
Case No. A091785
California Court of Appeal, First District, Division One
FAMILY LAW-PETITION TO ESTABLISH PARENTAL RELATIONSHIP-COURT ORDERED DRUG TESTING OF PARENT
Wainright and Nancy Sinkler lived together and had a child. Wainright sued to establish a parental relationship and requested joint legal and physical custody. The parties stipulated to joint legal and physical custody but agreed to re-evaluate the custody arrangement in April 2000. Included within the terms of the custody arrangement was the parties’ agreement not to use alcohol or illicit drugs 24 hours prior to and during that parent’s periods of responsibility for the child. The parties could not agree in April. At a pretrial meeting the judge ordered a hair drug analysis of Father within 48 hours, with Mother to pay the cost of the test. Wainright sought mandate.
HELD: The Family Law directs a court adjudicating child custody to consider certain factors in determining the best interest of the child, including the habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. The court may first require independent corroboration, including, but not limited to, written reports from law enforcement and other agencies. Nothing in the words, purpose, or legislative history of the statute authorizes court-ordered drug testing unchecked by substantive and procedural guidelines. The provision, in its plainest sense, protects a parent accused of drug abuse by authorizing a family court to require the accuser to present corroboration before the court credits the accusations. The family court here read the provision as authorization for it to actively investigate Mother’s accusations of drug abuse. Governmentally compelled drug testing implicates the federal and state right to be free of unreasonable searches and seizures, and the state right of privacy. Mandate issued ordering the court to vacate its order compelling drug testing.
Clark v. Baxter Healthcare Corporation
Case No. D034549
California Court of Appeal, Fourth District, Division One
ORDER
Modification of The opinion filed September 26, 2000, not effecting the judgment.
Powers v. Eichen
Case No. 98-56997
U.S. Court of Appeals for the Ninth Circuit
OTHER-ATTORNEY'S FEE AWARD-STANDING OF UNNAMED CLASS MEMBER TO APPEAL ATTORNEY FEE AWARD-REQUIREMENT OF STATEMENT OF REASONS FOR DEPARTURE FROM LODESTAR AMOUNT
There was a securities fraud class action, which alleged that Proxima made false and misleading statements about the corporation's business. The case settled. George, an unnamed class member who failed to intervene in the proceedings below, objected to the proposed 30% attorney's fee request and asked for a class guardian to be appointed. The court approved the fee application.
HELD: The general rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled. The procedural mechanisms of the court Rules do not protect unnamed class members concerned with the amount of a potential attorney's fee award. Once a settlement has been approved, the notice and opt-out provisions no longer protect a dissenting class member. In addition, the class member may be satisfied with the settlement terms and conditions, taking issue only with the amount of attorneys' fees requested. Unnamed class members, who may not have been privy to the fee negotiations, have a strong incentive to litigate the reasonableness and fairness of attorneys' fees due to the inverse relationship between attorneys' fees and the ultimate value of the class member's award. When a district departs from a benchmark award of attorney fees it must be made clear by the district court how it arrives at the figure ultimately awarded. The explanation of the reason for the departure need not be in writing. In this case there was discussion on the record of the district court's thinking, but the ultimate the fee award was not sufficiently explained. Many of the factors discussed at the hearing may have supported the fee award, but the district court never stated the grounds on which it ultimately relied. Vacated and remanded.
United States v. Derington
Case No. 98-10514
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-DISCOVERY-APPROPRIATE SANCTION FOR EVIDENCE NOT REVEALED DURING DISCOVERY-ARGUMENT AS TO GREED OF DEFENDANT-INSTRUCTIONS RELATING TO INTENT
Carver contracted with Derington to log her property, which consisted of three parcels within the Sequoia National Forest. Derington received an exemption with the California Department of Forestry permitting logging of up to 10% of the dead, dying, or diseased trees. Derington also obtained a road use permit from the United States Forest Service and was informed by an officer of the Forest Service that the boundary of the Carver property was uncertain and that he should get a professional survey before beginning to log. Derington did not get a professional survey. He was later found to have logged 30 trees from the national forest. Derington was warned, but cut another 80 trees. Derington was convicted of theft and of depredation of government property. At trial the testimony of Fritz, an officer of the Forest Service, who spoke to Derington on the site of his logging and to whom Derington made incriminating statements was stricken, on the ground that the conversation was not revealed during discovery. Evidence was also admitted of his illegal cutting on Carver's property, a misdemeanor under state law.
HELD: The sanction of striking Fritz's testimony was within the broad discretion of the district court. There was no evidence that the violation was deliberate. The effect on the defense of not knowing earlier of Fritz's recollection was not catastrophic. The defense knew over a week before trial what Fritz was going to say. The prosecutor's argument to the jury highlighting Derington's greed touches on a trait of character. As evidence was inadmissible to prove Derington was greedy, an argument based on his greed should not have been made. No objection, however, was taken to the argument. The evidence was also not admissible to prove intent as it related to Derington's defense of mistake. The error was harmless. The instructions relating to intent to do something unlawful were sufficient, when applied to both counts. Any deficiency in the instructions as to count one was harmless. Affirmed.
Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
Case No. 99-15641
U.S. Court of Appeals for the Ninth Circuit
ORDER-MORATORIUM ON HOME BUILDING
Publication of dissent from denial of petition for hearing en banc.
Hawaii Teamsters v. United Parcel Service
Case No. 99-17079
U.S. Court of Appeals for the Ninth Circuit
ORDER-ARBITRATION AWARDS AS PRECEDENT
Modification of opinion filed in this case on September 6, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
For the complete California cases, visitors can click on here to go to
STATE DAILY OPINIONS
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FEDERAL RESOURCES
Wasserman's Archived Appellate Summaries
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