Wasserman's Appellate Summaries
October 26, 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 26, 2000
8 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
Wyler v Turner Broadcasting presents an interesting situation relating to waiver of a contract provision for the benefit of one of the parties.
There is no restitution for diversion of corporate opportunity to a person who controls the corporation. Evidently the corporation must first have a contract which is diverted to the control person.
If you aren't sure what a dating relationship is, see the complete history of dating in America in the case of Oriola v Thaler. The case points out the advantage of a domestic relationship injunction over a civil harassment action.
Joint and several liability is alive in well even in the age of comparative negligence.
Oriola v. Thaler
Case No. A085459
California Court of Appeal, First District, Division Two
FAMILY LAW-DOMESTIC VIOLENCE PREVENTION ACT-DEFINITION OF DATING RELATIONSHIP
Oriola filed an application for a restraining order against Thaler under the Domestic Violence Prevention Act. Oriola alleged that she and Thaler had had a dating or engagement relationship; and that Thaler had threatened, or attempted bodily injury to her or another member of her household and stalked her. She requested restraining and stay-away orders. Thaler's responsive declaration stated his recognition of Oriola's desire to have no contact with him and his intention to honor that request. At the hearing the judge suggested treating the case as one for a civil harassment order, but Oriola apparently did not wish to pursue that course. The common use of the gym that both used was a problem that the court concluded was going to be impossible to work out an order and dismissed the case for lack of jurisdiction, without prejudice to filing a civil harassment case.
HELD: The DVPA provides for issuance of orders to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. Domestic violence is defined as abuse perpetrated against, inter alia, a person with whom the respondent is having or has had a dating or engagement relationship. One of the chief differences between the relief available under the Code of Civil Procedure for civil harassment and that potentially available under the DVPA is that the DVPA authorizes the court to order restitution. Oriola's declaration confirms that the parties expressly agreed to be no more than friends. The prospect of a dating relationship was, in short, quashed almost at the outset. The case was properly dismissed. Affirmed. Requested sanctions denied.
In re Aljamie D./Los Angeles County Department Of Children And Family Services v. Cheryl D.
Case No. B139517
California Court of Appeal, Second District, Division Four
FAMILY LAW-JUVENILES DECLARED TO BE DEPENDENTS OF COURT-RIGHT TO MODIFICATION HEARING ON PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES
Cheryl D. is the mother of five children. Two of the children, Aljamie and Ashara are the only subjects of this appeal. In the petition the Department alleged that the four older children previously had been dependents of the juvenile court due to appellant’s drug abuse. Ashara and Earl were born prenatally exposed to drugs. At the six month review Department reported that all four children had been placed with their aunt, Evelyn. Cheryl had not enrolled in a drug program, although she reported she had been attending some meetings and tested clean twice. At the 12 month review, in 1998, Cheryl had recently begun complying with the case plan, having enrolled in a drug rehabilitation program and had eight clean drug tests between July and September 1997, but apparently had not tested since then. She was participating in parenting classes and visiting the children regularly. The court terminated reunion services and set the matter for a final disposition. After numerous continuances, requests for modification of the court and orders and grants of periods of visitation to Cheryl the court found that legal guardianship with the maternal aunt is in the best interest of the children. Cheryl's pending petition for modification of the dependency order was not heard.
HELD: Any parent or other person having an interest in a child who is a dependent child of the juvenile court may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The juvenile court has discretion whether to provide a hearing on a petition alleging changed circumstances. The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. Cheryl's petition made out a prima facie case of changed circumstances. She had completed numerous educational programs and parenting classes, and had tested clean in weekly random drug tests for over two years. The petition showed that the best interests of the children potentially would be advanced by the proposed 60-day visit and eventual change in the placement order. Reversed.
Marina Emergency Medical Group v. Superior Court/Charno
Case No. B142473
California Court of Appeal, Second District, Division One
TORTS-SUBSEQUENT NEGLIGENCE OF DOCTOR-JOINT AND SEVERAL LIABILITY FOR INDIVISIBLE INJURY-COMPARATIVE NEGLIGENCE
Charno’s lacerated thumb was sutured by Brigeli Westerband, M.D., an employee of Marina Emergency Medical Group. Two days later, Charno consulted his personal physician, Norman Solomon, M.D. A month later Dr. Solomon referred Charno to Michael McGuire, M.D., a board certified hand surgeon. Dr. McGuire operated on Charno’s thumb, and in the process discovered two severed nerves and a partially severed tendon. Charno sued. By the time of trial, the only parties were Charno and doctor Westerband. The trial court ruled that evidence of the personal physician’s subsequent negligence was inadmissible. Westerband sought mandate.
HELD: Adoption of comparative negligence did not warrant the abolition or contraction of the established joint and several liability doctrine. Each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury. Liability for an indivisible injury should be borne by each tortfeasor in direct proportion to his respective fault, the Supreme Court modified the rules of equitable indemnity to permit a joint tortfeasor to obtain partial indemnity from other tortfeasors on a comparative fault basis - by way of a cross-complaint in the plaintiff’s action or in a subsequent (and separate) indemnity action. Westerband must be given the opportunity to prove Dr. Solomon’s comparative fault, and to have the jury allocate fault between the two doctors. Petition granted and writ issued to vacate the order.
United Farm Workers v. Dutra Farms
Case No. H019659
California Court of Appeal, Sixth District
ORDER
Modification of opinion filed on September 27, 2000, not effecting the judgment.
Wyler Summit Partnership v. Turner Broadcasting System, Inc.
Case No. 99-15773
U.S. Court of Appeals for the Ninth Circuit
CIVIL-CONTRACT-WAIVER OF PROVISION FOR THE BENEFIT OF ONE PARTY-LACHES IS NOT A DEFENSE TO A CLAIM AT LAW
Wyler entered into a written contract with MGM to direct Ben Hur. For his services, MGM agreed to pay Wyler $350,000 plus a percentage compensation equal to three percent of the film's gross receipts in excess of $20 million, which was to be payable at no more than $50,000 per year. $1,800,000 is the balance still due. Wyler waived the annual limit on payment and Turner refused to pay more than the $50,000 annual maximum. Wyler Summit Partnership sued Turner Broadcasting System, Inc. for breach of contract. Turner's motion to dismiss for failure to state a claim was granted, on appeal the case was reversed and remanded for resolution of the issue of whether Wyler had the right to waive the installment payment provision. Wyler had the right to waive the provision only if the contracting parties included it in the contract for the sole benefit of Mr. Wyler. Summary judgment was for Turner.
HELD: Under California law, the test of whether a contractual provision may be waived by one party is not whether the parties believed or assumed that it could be waived. The determinative inquiry is whether the provision was inserted for the sole benefit of one of the parties. Whether Mr. Wyler's right to waive the installment payment provision might have triggered the constructive receipt doctrine is irrelevant. Judicial estoppel applies when a party's position is tantamount to a knowing misrepresentation to or even fraud on the court. The doctrine of judicial estoppel requires a knowing antecedent misrepresentation by the person or party alleged to be estopped and prevents the party from tendering a contradictory assertion to a court. The fact that Wyler reported to the I.R.S. $50,000 in compensation annually on his taxes was not a misrepresentation. Wyler presented evidence that, when viewed in the light most favorable to it, would prove that the installment payment provision was not included for the benefit of MGM. Under California law, laches is available as a defense only to claims sounding in equity, not to claims at law. Reversed and remanded. (The Court declined Wyler's request to remand to a different judge.)
United States v. Hancock
Case No. 99-10533
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-IGNORANCE OF LAW AS DEFENSE-CHANGE IN CRIMINAL STATUE
Hancock was arrested for possession a firearm after being convicted of the misdemeanor crime of domestic violence. He bought the 12 firearms in question between 1980 and 1982. In 1994 and 1995, when Hancock was amassing misdemeanor domestic violence convictions, persons with such convictions were not prohibited by federal law from owning firearms. In 1996, Congress amended the Gun Control Act of 1968 by adding, the prohibition against possession of a firearm by one convicted of domestic violence. Defendant asserts, and the government does not dispute, that he was unaware of the change in statute until he was arrested for violating it. His motion to dismiss for violation of due process and equal protection was denied. He was convicted as charged. At trial the district court refused to give an instruction on entrapment by estoppel.
HELD: The general rule is that ignorance of the law or a mistake of law is no defense to criminal prosecution. There is a distinction between distinction between the requirements of "willful" and "knowing" behavior. The element of knowing conduct in the Gun Control Act refers to knowledge of possession, rather than knowledge of the legal consequences of possession. Hancock does not come within the narrow class of exceptions to the general rule that ignorance of law is no excuse. Affirmed.
United States v. Rodrigues
Case No. 99-10404
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-RESTITUTION ORDER UNDER VICTIM AND WITNESS PROTECTION ACT-DIRECT LOSS TO VICTIM REQUIRED
Rodrigues, former owner and Chairman of the Board of Saratoga Savings and Loan in California, was convicted of ten criminal counts arising from his participation in four real estate transactions with Saratoga. Based on the profits from the transactions Rodrigues was ordered to pay restitution of $1.5 million under the Victim and Witness Protection Act.
HELD: In enacting the VWPA, Congress intended to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction. The VWPA only authorizes restitution up to the amount actually lost by the victims. The corporate opportunities of Saratoga that were diverted to Rodrigues were merely an expectancy interest in these ventures and had not matured into the type of vested, direct property interest for which the VWPA allows restitution. In two of the transactions Saratoga had no involvement in the transactions beyond extending loans that were repaid with appropriate interest. In one other transaction Saratoga had a one third partnership interest, which was diverted to Rodrigues. This was a fraud on Saratoga. He also converted a fee payable to Saratoga to himself as an interest in the project. Reversed and remanded.
Estate Of Ashman v. Internal Revenue Service
Case No. 99-70280
U.S. Court of Appeals for the Ninth Circuit
TAXATION-STATUTE OF LIMITATIONS-CONSISTENCY PRINCIPLE-EQUITABLE JURISDICTION OF TAX COURT
In 1990, Ashman received a distribution of $725,502 from a qualified defined benefit pension plan. To avoid income taxation on the distribution she was required to roll it over into another qualified plan or account within 60 days. She missed the deadline as to $100,502.21. In her income tax return she reported that the full $725,502 had been rolled over from her former plan. In 1993 there was a distribution of t $99,632 from the $100,502.21 account. She did not report that as taxable income either. By the time the IRS became aware of this the statute of limitations had run on the 1990 tax return. The IRS issued a deficiency notice for the 1993 tax year. Ashman contested the deficiency assessment in the Tax Court. Judgment was for the IRS, based on a consistency principle - Ashman was bound by her previous principal that the amount was not taxable in 1990.
HELD: Numerous cases have declared that there is a duty of consistency in the tax area. That equitable principle behind the duty of consistency is not unlike the more familiar doctrine of judicial estoppel. The duty of consistency has nothing to do with tolling; it deals with the equitable insight that a person should be prevented from taking different positions about the same historical transactional facts in different years. Even if the tax court does not have far-reaching general equitable powers, it can apply equitable principles. In particular, it can apply the duty of consistency doctrine. Affirmed.
Sassounian v. Roe, Warden
Case No. 98-56747
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-PROSECUTORIAL MISCONDUCT-WITNESS PERJURY-JURY MISCONDUCT
Sassounian killed Kemal Arikan, the Consul General of the Republic of Turkey. He was convicted of murder. His petition for habeas corpus, on the grounds of prosecutorial misconduct, witness perjury, jury misconduct, an improper aiding and abetting instruction, the vagueness of the special circumstance statute, and insufficient evidence, was denied. The district court applied the pre-Antiterrorism and Effective Death Penalty Act procedures and issued a certificate of probable cause which does not specify the issues for appeal as required by the new enactment.
HELD: Deeming the notice of appeal to be a request for a certificate of appealability, it was found that Sassounian made a substantial showing of the denial of a constitutional right as to each of the six issues raised. After an extensive review of the record the court found that none of the prosecutor's actions rose to the level of a due process violation. The prosecutor did stray beyond proper advocacy during the trial by, for example, introducing her own opinion that a witness was a liar and implying that defense counsel fabricated evidence. Many of the prosecutor's comments on the witness lying were appropriate in context, in response to the witness' admissions that he lied. Relating to witness perjury, the California Supreme Court found that, even if a witness, Busch fabricated his testimony, the error was harmless because Busch's testimony was vigorously impeached already. A long line of precedent distinguishes between juror testimony about the consideration of extrinsic evidence, which may be considered by a reviewing court, and juror testimony about the subjective effect of evidence on the particular juror, which may not. In this case he very nature of the improper evidence considered suggests that it prejudiced Sassounian. The judge never had an opportunity to diminish the prejudicial effect of the extraneous information, because he did not find out about it until after the verdict. Juror misconduct warrants relief on the special circumstance finding. Affirmed conviction, reversed as to the special circumstances finding and remanded.
*Change in law, interesting case, or just watch out!
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