Wasserman's Appellate Summaries
October 24, 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 24, 2000
5 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
When does the statute of limitations period commence for attorney malpractice and when does tolling apply in the situation in which there is continuing representation of the client by the attorney in other matters. Representation of a corporation and an officer of the corporation.
FOR A QUICK REVIEW VISITORS AND SUBSCRIBERS CAN SEE WASSERMAN'S APPELLATE SUMMARIES.
Rallis v. Cassady
Case No. B127047/B131724, consolidated
California Court of Appeal, Second District, Division Five
CIVIL-ATTORNEY MALPRACTICE-STATUTE OF LIMITATIONS-TOLLING OF STATUTE OF LIMITATIONS DURING CONTINUED REPRESENTATION BY ATTORNEY-NECESSITY FOR REPRESENTATION ON SAME SPECIFIC SUBJECT MATTER-EXISTENCE OF ATTORNEY CLIENT RELATIONSHIP-IMPLIED IN FACT CONTRACT
Rallis sued defendants Ralph Cassady, Cassady Corporation for legal malpractice. Summary judgment was for defendants on statute of limitations grounds. The court rejected tolling during the continued representation of the attorneys of various corporations in which Cassady was a participant.
HELD: A cause of action for legal malpractice depends upon the existence of a duty of care ordinarily created by an attorney-client relationship. The existence of an attorney-client relationship created by an implied-in-fact contract therefore is an issue of fact for the trier of fact, unless the underlying facts are undisputed and support only one conclusion. An attorney representing a corporation ordinarily does not represent its officers, directors, or shareholders individually. However, the attorney may agree with an individual within the corporation to represent the individual in a particular matter. In the absence of an express agreement between the parties, their conduct and the totality of the circumstances may establish an implied-in-fact contract creating an attorney-client relationship. The evidentiary record is sufficient to create a triable issue of fact as to whether an implied-in-fact contract existed creating an attorney-client relationship between Cassady, and his respective law firms, and Rallis with respect to the matters allegedly mishandled. The one-year limitations period for a legal malpractice action begins to run when the plaintiff actually discovers or reasonably should have discovered the facts of the attorney’s wrongful act or omission. The period is tolled until the plaintiff suffers actual injury. Actual injury means any damages compensable in a legal malpractice action based on the asserted act or omission. The cost or increased cost of litigation due to an attorney’s act or omission is an actual injury, as is the loss or diminution of a right or remedy. The fact that future events such as the adjudication or settlement of an action might affect the permanency of the plaintiff’s injury or determine the amount of damages does not make the existing injury speculative or contingent, and the existence of actual injury does not depend on those later events. The one-year limitations period for legal malpractice is also tolled while the attorney continues to represent the plaintiff regarding the same specific subject matter. Triable issues of fact exist as to the running of the statute of limitations, as to some of the claims asserted against some of the defendants. Rallis suffered an actual injury from the transactional matters that he claims were negligently handled more than one year before he filed his complaint, all of those claims are time-barred. Affirmed in part and reversed in part.
People v. One Ruger 22-Caliber Pistol/Veden
Case No. B136093
California Court of Appeal, Second District, Division Six
CRIMINAL-FORFEITURE OF WEAPONS OF PERSON WITH MENTAL DISORDER-DUE PROCESS-EVIDENCE-TESTIMONY OF EXAMINING PSYCHIATRIST DURING WELFARE AND INSTITUTIONS CODE DETENTION TO DETERMINE MENTAL CONDITION
Veden called police to his home because he was concerned about chemicals stored in his garage. Because of his strange behavior, the officers took Veden into custody for a 72-hour evaluation of an apparent mental disorder. The police also confiscated 15 firearms from a safe in Veden's garage. A petition to determine whether returning the firearms would be likely to endanger Veden or others was filed. Over objection, the trial court allowed a psychiatrist to testify that during Veden's confinement he suffered major depression with psychotic symptoms. The psychiatrist was of the opinion that Veden was a danger to himself and others. The firearms were forfeited.
HELD: The Welfare and Institutions Code authorizes the seizure and possible forfeiture of weapons belonging to persons detained for examination because of their mental condition. The statute places the burden of initiating an action for confiscation on the prosecution and does not deny procedural due process. Testimony of a psychiatrist who examines a person detained pursuant to the Welfare and Institutions Code is admissible under the Evidence Code and is not subject to the psychotherapist-patient privilege. Affirmed.
Sheehy v. California Franchise Tax Board
Case No. G021719
California Court of Appeal, Fourth District, Division Three
TAXATION-USURIOUS RATE OF INTEREST CHARGED ON UNPAID TAXES-REQUIREMENT FOR LOAN OR FORBEARANCE FOR APPLICATION OF USURY LAW
Sheehy claimed a deduction for an embezzlement and theft loss on his 1985 state income tax return. Six years later, the California Franchise Tax Board notified Sheehy that the deduction was disallowed. The CFTB also assessed $5,717 in interest up to that date; the interest was computed at a rate of 10 percent compounded daily. Sheehy paid the amount claimed and sued, on the ground that the interest charged exceeded 7% and was usurious.
HELD: The Revenue and Taxation code authorizes the CFTB to assess interest on unpaid taxes in an amount to be determined in accordance with the Internal Revenue Code. During the relevant period, this interest rate was 10 percent, compounded daily. The California Constitution generally limits the amount of interest which may be charged on any "loan or forbearance" to seven percent per year. In determining whether a particular transaction is usurious, courts look to its substance rather than to its form. The key question is whether the transaction has as its true purpose the hire of money t an excessive interest rate. The penalty assessment for late payment of taxes is neither an assessment to compensate the state for a loan nor for a forbearance. The CFTB delay in informing plaintiffs of the amount due is not a forbearance. Affirmed.
People v. Olmsted
Case No. C032412
California Court of Appeal, Third District
CRIMINAL-INSUFFICIENCY OF THE EVIDENCE-DEFINITION OF FLECHETTE
Olmsted shot a deputy sheriff and fled in his van. He then collided head on with another sheriff's vehicle. The van caught fire. It was filed with ammunition and a pipe bomb, which exploded. The heat was so intense that it melted several firearms in the vehicle. A device resembling a flechette was found in the barrel of one of the firearms, but the tail fin was only approximately 9/32nds of an inch. Olmsted's motion to dismiss the flechette charge was denied. He was convicted of various crimes, including possession of ammunition which contains or consists of any fléchette dart, relating to his attempts to murder two peace officers. His 231 year sentence included a consecutive term of 25 years to life for the possession of fléchette darts.
HELD: The Penal Code provides that a fléchette dart means a dart, capable of being fired from a firearm, which measures approximately one inch in length, with tail fins which take up five-sixteenths of an inch of the body." The word "approximately" refers solely to the length of the dart, not the length of the tail fins. The trial testimony of the sheriff was not substantial evidence that the tail fins took up 5/16 of an inch of the body of at least one dart found in defendant’s van. Conviction reversed for the flechette conviction.
Cedars-Sinai Imaging Medical Group v. Superior Court/Moore
Case No. B142626
California Court of Appeal, Second District, Division One
ORDER
Modification of opinion, filed September 28, 2000, not effecting the judgment.
United States v. Hay
Case No. 99-30101
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SUFFICIENCY OF AFFIDAVIT FOR SEARCH WARRANT-CHILD PORNOGRAPHY TRANSMITTED BY COMPUTER-EVIDENCE-JURY VIEW OF CHILD PORNOGRAPHY
Transmission of 19 images of child pornography were traced to a computer used by Hay. A search warrant was issued for the search of the computer based on the tracing information in the affidavit. The computer hard drive contained hundreds of child pornography graphics. Hay's motion to suppress the warrant was denied. He was convicted of possession and distribution of child pornography by means of a computer.
HELD: The Court found that the affidavit for the warrant set forth specific facts that indicated the computer used by Hay would contain the 19 images of child pornography. The affidavit was sufficient for issuance of the warrant. There was also evidence that Hay had seen the images of the child pornography that he was charged with possessing. Allowing the jury to view three of the thirty-four exhibits was not unduly prejudicial. Affirmed.
*Change in law, interesting case, or just watch out!
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STATE DAILY OPINIONS
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FEDERAL RESOURCES
Wasserman's Archived Appellate Summaries
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