Wasserman's Appellate Summaries
October 25, 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 25, 2000
9 NEW APPELLATE CASES
When may an insurance company intervene in a lawsuit?
A bona fide purchaser for value takes clear title when the request for reconveyance is forged.
FOR A QUICK REVIEW VISITORS AND SUBSCRIBERS CAN SEE WASSERMAN'S APPELLATE SUMMARIES.
People v. Garcia
Case No. A082341
California Court of Appeal, First District, Division Four
Certified for publication with the exception of parts II.C, II.D.1, II.F.1 and II.G.)
CRIMINAL-SUFFICIENCY OF EVIDENCE-CORROBORATION REQUIRED FOR CO-CONSPIRATOR TESTIMONY-BURDEN OF PROOF-REFUSAL TO ALLOW PROSECUTING ATTORNEY TO BE CALLED AS WITNESS-CUMULATIVE PREJUDICE
Garcia, a former guard at Pelican Bay State Prison, was convicted of conspiring to assault and assault upon an inmate who was targeted for attack because he was serving time for child molestation, and also, possession of alcohol in a prison. The trial court refused to let Garcia call the prosecutor as a witness, relating to a failure to make discovery.
HELD: Conviction of a conspiracy requires proof first, that defendant and another person or persons had the specific intent to agree or conspire, and second, that they had the specific intent to commit the elements of the offense as well as proof of the commission of an overt act in furtherance of the conspiracy by one or more parties to the agreement. A conspirator is legally liable for the acts of confederates that follow from the common design or purpose as a probable or natural consequence. Co-conspirators are treated as accomplices for the purpose of requiring corroboration of their testimony. The evidence was sufficient to support Garcia's liability as an accomplice in the assault and for conspiracy. Relating to the possession of alcohol conviction, authorization to possess drugs is an affirmative defense which defendant bears the burden to raise and prove. From the evidence presented a trier of fact could reasonably conclude that defendant possessed treet alcohol in prison. Only in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, the defendant has an obligation to demonstrate that there is no other source for the evidence he seeks. Garcia did not show that there was no other source of the evidence he sought. There was no cumulative prejudice. Affirmed.
Heiner v. K-Mart Corporation
Case No. A082437
California Court of Appeal, First District, Division Four
TORTS-SUFFICIENCY OF EVIDENCE OF DAMAGES-INSTRUCTIONS-APPORTIONMENT OF DAMAGES-WAIVER OF CLAIM ON APPEAL
Heiner had a slight altercation relating to a refund for the return to K-Mart of some electronic equipment. Heiner was assaulted by a K-Mart security guard, who did not identify himself as working for K-Mart until he had physically restrained Heiner. Heiner sued and recovered judgment.
HELD: Heiner's testimony and that of Dr. Robert Gartrell, a dentist and certified business appraiser who is recognized by the American Dental Association as an expert in the appraisal of dental practices, supported Heiner’s claim that he suffered serious personal injuries and substantial economic losses as a result of the altercation. K-Mart failed to request an instruction or verdict form embodying the present claim to apportionment, and failed to object to an instruction that specifically directed the jury that Heiner’s negligence did not reduce K-Mart’s liability for battery. At one point K-Mart’s trial counsel specifically agreed that the jury should not apply comparative negligence principles to K-Mart’s liability for battery. Apportionment of fault for injuries inflicted in the course of an intentional tort would have been improper. Affirmed.
People v. Cisneros
Case No. A085065
California Court of Appeal, First District, Division Four
CRIMINAL-SENTENCING-FIRST TIME DRUG OFFENDERS DIVERSION PROGRAM-ELIGIBILITY FOR PROGRAM NOT EXCLUDED FOR ILLEGAL ALIEN
Cisneros pled guilty to possessing cocaine. The probation department recommended admission to the deferred entry of judgment program in which first-time drug offenders are diverted to a rehabilitation program with judgment deferred and criminal charges dismissed upon successful completion of the program. The trial court denied admission because Cisneros is an illegal alien, which automatically made him unsuitable for deferred entry of judgment.
HELD: Trial courts are free to consider illegal alien status as a factor in determining whether a defendant is a good candidate for the deferred judgment program, but illegal alien status is not an automatic disqualification. Reversed and remanded.
People v. Bohana
Case No. B128162
California Court of Appeal, Second District, Division Six
CRIMINAL-SUFFICIENCY OF EVIDENCE-SUA SPONTE DUTY OF COURT TO INSTRUCT
Bohana and the victim knew each other. Bohana called 911 to report a drowning. The victim was found drowned in Bohana's swimming pool at his residence. Bohana was convicted of second degree murder.
HELD: Second degree murder is the unlawful killing of a human being with malice aforethought, but without the premeditation, deliberation and willfulness necessary to elevate the offense to first degree murder. Generally, the intent to unlawfully kill constitutes malice. Express malice murder requires intent to kill. Implied malice murder requires an intent to do some act, the natural consequences of which are dangerous to human life. When the killing is the direct result of such an act, the requisite mental state for murder - malice aforethought - is implied. In such circumstances it is not necessary to establish that the defendant intended that his act would result in the death of a human being. Substantial evidence supports the finding of second degree murder. Several witnesses testified that Jackson could not swim and was afraid of water and swimming pools. Jackson had many blunt force traumatic injuries, inflicted four hours earlier, which were not the result of appellant's purported rescue efforts. The trial court has a duty to instruct, sua sponte, on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. This includes the duty to give instructions concerning defenses on which the defendant relies or which are not inconsistent with the defendant's theory of the case. The trial court had no duty to instruct on a defense of excusable homicide, that is not supported by substantial evidence. Affirmed.
Schiavon v. Arnaudo Brothers
Case No. H020221
California Court of Appeal, Sixth District
REAL PROPERTY-UNAUTHORIZED RECONVEYANCE EXECUTED BY TRUSTOR-RIGHT OF BONA FIDE PURCHASER FOR VALUE
Arnaudo Brothers, a partnership, was a bona fide purchaser of real property. Schiavon et al. held a security interest in the property, evidenced by a deed of trust. Prior to the purchase by Arnaudo Brothers the trustee under the deed of trust reconveyed Schiavon's security interest upon a forged request for reconveyance. Schiavon sued. The trial court sustained a demurrer without leave to amend.
HELD: Whether defendant’s status as a bona fide purchase defeats plaintiffs’ claim under the deed of trust depends on whether the trustee’s reconveyance of plaintiffs’ deed of trust was void or voidable. A deed is void if the grantor’s signature is forged or if the grantor is unaware of the nature of what he or she is signing. A voidable deed, on the other hand, is one where the grantor is aware of what he or she is executing, but has been induced to do so through fraudulent misrepresentations. The same rules apply to the reconveyance of the property Under California law, a bona fide purchaser for value takes title free and clear of an improperly reconveyed deed of trust, so long as the reconveyance is voidable and not void. If a trustee executes an unauthorized reconveyance and the trustor subsequently conveys the property, a grantee who does not have notice of the trustee’s lack of authority receives title free and clear of the lien. Affirmed.
Reliance Insurance Company v. Superior Court/Wells
Case No. H020411
California Court of Appeal, Sixth District
INSURANCE-INTERVENTION BY INSURANCE COMPANY IN UNDERLYING ACTION
Wells sued Campbell Moving & Storage for negligence in moving their personal property. Campbell's corporate charter was suspended. Campbell's insurer, Reliance motion to intervene in the action was denied. A petition for a writ of mandate was filed, and traversed. Before hearing on the order t show cause the case settled. Although moot, the appellate Court found the question of sufficient importance to issue a ruling.
HELD: The Code of Civil Procedure provides that upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. The Insurance Code provides that a judgment creditor may proceed directly against any liability insurance covering the defendant, and obtain satisfaction of the judgment up to the amount of the policy limits. Where the insurer fails to intervene in the underlying action or to move to set aside any default judgment, the insurer is bound by the default judgment. Intervention by an insurer is permitted where the insurer remains liable for any default judgment against the insured, and it has no means other than intervention to litigate liability or damage issues. The alternative writ was discharged and the matter dismissed as moot.
Evanns v. AT&T Corporation
Case No. 99-55165
U.S. Court of Appeals for the Ninth Circuit
OTHER-FILED RATE DOCTRINE-APPROVAL OF TARIFF BY FEDERAL COMMUNICATION COMMISSION HAS THE EFFECT OF LAW AS TO THE RATE APPROVED
The Federal Communications Commission requires communication carriers to remit funds to the FCC's Universal Service Fund pursuant to the Commission's "Universal Service Order." Pursuant to authority granted them by the FCC AT&T and other carriers passed the USF fee on to their customers. Evanns sued AT&T and other carriers, contending that the USF fee is unlawful. The district court dismissed the complaint pursuant to the filed-rate doctrine.
HELD: Under the Federal Communications Act the filed-rate doctrine, also known as the filed-tariff doctrine once a carrier's tariff is approved by the FCC, the terms of the federal tariff are considered to be the law and conclusively and exclusively enumerate the rights and liabilities" as between the carrier and the customer. The USF assessments are, included in the defendant carriers' tariffs filed with the FCC. The defendants were therefore required to collect, and the consumers required to pay, this assessment. The filed-rate doctrine bars Evanns' claim, whether based on federal or state law. Affirmed.
United States v. Willard
Case No. 99-10534
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-UPWARD ADJUSTMENT FOR MOTHER'S ATTEMPT TO INTIMIDATE HER DAUGHTER FROM TESTIFYING
Defendant's husband, Clifford Willard, was convicted of taking their daughter from one state to another for the purpose of sexually abusing her. Defendant, Dorothy Willard told the daughter that she did not want her to testify and that God would not like it if she testified. Defendant also told the daughter that Defendant would have her prosecuted for perjury if she testified against her father. Dorothy was convicted of attempting to intimidate a witness. Dorothy's base offense level was adjusted upward, because the court found that Dorothy abused a position of trust with her daughter.
HELD: The application notes to the sentencing guidelines define a "position" of "trust" narrowly to include only business or professional positions. A "public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion. Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. The role of mother is a nonbusiness, purely familial position. The guidelines do not authorize an offense level adjustment for an abuse of trust in the mother-daughter relationship, without more. Vacated sentence and remanded.
Katz v. Regents of the University of California
Case No. 99-15384
U.S. Court of Appeals for the Ninth Circuit
EMPLOYMENT-AGE DISCRIMINATION IN EMPLOYMENT-WAIVER OF ELEVENTH AMENDMENT IMMUNITY-INSUFFICIENCY OF STATISTICAL EVIDENCE OF DISPARATE EFFECT OF EARLY RETIREMENT PROGRAM ON PROTECTED CLASS-EXCLUSION OF EVIDENCE OF DISCRIMINATORY MOTIVE-ADVICE OF ATTORNEY
In 1993 the Regents of the University of California was under pressure to downsize the Lawrence Livermore National Laboratory and other laboratories. There were two classes of employees, because of a change in the administration of retirement programs over the years. One group of employees as offered early retirement at the age of 50 and the other group in the PERS program at the age of 60. The PERS employees filed a class action under the Age Discrimination in Employment Act and the California Fair Employment and Housing Act. Judgment was for the University, after the court precluded evidence of disparate impact age discrimination and that the University could have allowed transfers between the programs.
HELD: Because of Eleventh Amendment immunity the states cannot be compelled to submit to the jurisdiction of the federal courts in such suits. This immunity can be waived by the state and California has filed a written waiver. The ADEA prohibits employers from discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment because of an individual's age. To prevail on a disparate impact claim of age discrimination, a plaintiff must prove that a challenged employment policy or practice, while facially neutral, has a disparate impact on certain employees because of their membership in a protected group. In this case Katz failed to demonstrate causation, which requires substantial statistical evidence sufficient to raise an inference that the disparate impact fell upon employees of a protected age group. The University informed members of the plaintiff class that transfer between the two retirement programs was impossible, they were acting on legal advice that was later shown to have been incorrect. Under these circumstances, the district court's conclusion that the jury could not reasonably infer a discriminatory motive on the part of the University through evidence of the possibility of transfer between programs was not an abuse of discretion. Affirmed.
*Change in law, interesting case, or just watch out!
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