Wasserman's Appellate Summaries
October 30, 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 30, 2000
9 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
Teachers have to take (and pass) tests also.
Under the California Fair Employment and Housing Act and one must be qualified for the position before they can be successful in a disability discrimination claim
When is a sign on the same street within 600 feet of another similar sign? Answer: When it is around the corner, on a different street.
Quinn v. City of Los Angeles
Case No. B128454
California Court of Appeal, Second District, Division Four
EMPLOYMENT-DISABILITY DISCRIMINATION UNDER CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT-NECESSITY TO SHOW QUALIFICATION FOR POSITION
Quinn applied to be hired as a Los Angeles City police officer. He failed the medical exam because of a significant hearing impairment. Due to a clerical error, he was notified to report for further tests. He passed those tests, was admitted to and graduated from the Police Academy, and was assigned to patrol duty. While a probationary patrolman, his hearing problem manifested itself. After another hearing exam revealed his hearing impairment, the Los Angeles Police Department terminated him while he was still a probationary employee. Quinn sued alleging disability discrimination in violation of the California Fair Employment and Housing Act. Judgment was for Quinn. The City's motion for a directed verdict was denied.
HELD: In order to establish a prima facie case for discrimination based upon violation of the FEHA, a plaintiff must prove he was qualified for the position. As part of his prima facie case Quinn was required to establish that he was qualified to be hired as a police officer, a critical element of his claim: Quinn failed to produce evidence on his qualification to be hired as a police officer. The City had no obligation to accommodate him because he did not meet the minimal qualifications to be hired for the position. The trial court erred in denying City's motion for a directed verdict. Reversed.
Van Wagner Communications v. City of Los Angeles / AFC Santa Monica LLC, Intervener
Case No. B135654
California Court of Appeal, Second District, Division One
REAL PROPERTY-REVOCATION OF PERMIT FOR SIGN-STATUTORY INTERPRETATION
A city ordinance requires a 600-foot space between offsite signs of a particular size that are located on the same side of the same street. Van Wagner was issued a permit for a sign within 600 feet of another sign located around the corner and on a different street. After an objection to the sign and a hearing the permit was revoked. Van Wagner's petition for mandamus was denied.
HELD: The ordinance unambiguously states that it applies only to signs that are located on the same side of the same street, which these signs are not. As a matter of law, that because the two signs are located on different streets, the spacing ordinance does not apply to these particular signs. Reversed and remanded with directions to grant the petition for mandamus.
Beroiz v. Wahl
Case No. B138546
California Court of Appeal, Second District, Division Four
TORTS-DEFAMATION-ABSOLUTE PRIVILEGE-QUALIFIED PRIVILEGE
Beroiz and several other residents of a condominium complex in Mexico sued members of the condominium association for defamation, some of the defamation was alleged to have occurred by the filing of a lawsuit. Judgment was for defendants, based on the absolute litigation immunity privilege.
HELD:The three steps required for summary judgment are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party has raised a triable issue of fact. These steps reflect a series of burden shifts. A defendant moving for summary judgment has the burden of negating a necessary element of the plaintiff's case, and demonstrating that under no hypothesis is there a material issue of fact that requires the process of a trial. To do that, the defendant may rely either on affirmative evidence or discovery responses of the plaintiff showing the absence of evidence necessary to establish at least one essential element of the plaintiff's case. Any doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. Privilege is an affirmative defense to a claim of defamation. There is a qualified privilege that prote cts communications made without malice to protect a recognized interest. There is an absolute privilege for communications made to police officers conducting an investigation. These privileges may properly shield conduct in Mexico. The communications made in this case came within the privileged communications. Affirmed.
IN RE: Allen N / People v. Allen N.
Case No. C032402
California Court of Appeal, Third District
CRIMINAL-JUVENILE-LIMITATION OF JUVENILE COURT SUPERVISORY POWER AFTER COMMITMENT TO YOUTH AUTHORITY
The juvenile court adjudged Allen N., a minor to be ward of the court based upon previously sustained petitions, committed felony assault. He was committed to the California Youth Authority for 8 years and further imposed conditions of probation.
HELD: Any person who is under the age of 18 when he or she commits a criminal offense is within the jurisdiction of the juvenile court. Once an individual is adjudged a ward of the juvenile court that court may retain jurisdiction over the ward until he or she attains the age of 21 or 25 depending upon the nature of the offense. There is a distinction between the court's jurisdiction and its supervisory power. Commitment to the Youth Authority brings about a drastic change in the status of the ward, which not only has penal overtones, including institutional confinement with adult offenders, but also removes the ward from the direct supervision of the juvenile court. The Court ordered conditions of probation imposed by the court were stricken.
Vedanta Society of Southern California v. California Quartet
Case No. G026580
California Court of Appeal, Fourth District, Division Three
ENVIRONMENTAL-REQUIREMENT FOR POSITIVE DECISION BY ELECTED OFFICIALS TO CERTIFY OR REJECT ENVIRONMENTAL IMPACT REPORT-EFFECT OF TIE VOTE ON APPROVAL OF ENVIRONMENTAL IMPACT REPORT
The county planning commission certified an EIR for a t housing development. The EIR identified a variety of significant environmental impacts. A group of neighbors led by the Vedanta Society of Southern California appealed the certification to the Orange County Board of Supervisors. One Board member did not vote and the board deadlocked 2-2 on a motion to adopt the staff's recommendation to deny the appeal and uphold the certification. The board's own minute order described the motion as having failed for lack of a majority vote. The project was processed on the assumption that the tie vote was certified by the tie vote. Vendanta and others sued. Judgment was for Vendanta.
HELD: The Public Resources Code provides that; When an environmental impact report is certified by a local lead agency's decision making body which is not elected, that certification may be appealed to the agency's elected decision making body, if any. Each local lead agency is required to provide for such appeals. A board cannot validly provide for an approval of an EIR by tie vote. Doing so would be circumventing the protections provided by CEQA to expose elected decision makers to the political consequences of any decision to certify an EIR. Affirmed.
Case No. A087349
California Court of Appeal, First District, Division Two
ORDER Modification of opinion filed herein on October 4, 2000, not effecting the judgment.
People v. Lloyd
Case No. A080542
California Court of Appeal, First District, Division Four
ORDER Modification of opinion filed herein on October 4, 2000, not effecting the judgment.
Anderson v. Babbitt, Secretary Dept. of the Interior
Case No. 98-36150
U.S. Court of Appeals for the Ninth Circuit
CIVIL-JURISDICTION-DUE PROCESS VIOLATION BY BOARD OF INDIAN APPEALS-EXCEPTION TO REQUIREMENT TO EXHAUST ADMINISTRATIVE REMEDIES FOR COLORABLE CONSTITUTIONAL CLAIM
Pickernel, a Quinault Indian, left his entire estate to his adopted son, Richard. The will was submitted for probate to the Department of Interior's Office of Hearings and Appeals. A creditor presented a claim against the estate. The adopted daughter of the testator, Anderson then appeared before the ALJ. She moved to deny the creditor's claim and filed a pleading that was treated by the ALJ as a motion for summary judgment to set aside the will. The motions were denied by the ALJ, holding that the issues which should be addressed at a noticed hearing. Anderson appealed the denial and also some discovery orders to the Interior Board of Indian Appeals. The IBIA vacated the discovery order limitation and affirmed the denial of the motions. Anderson then filed an amended complaint alleging IBIA violated her constitutional right to due process. The district court found that it lacked subject matter jurisdiction over the due process claim because there had been no final agency action, no showing of futility, and because Anderson had not exhausted her administrative remedies.
HELD: A court of appeal may waive the failure to exhaust his remedies if he demonstrates that his constitutional claim is (1) collateral to a substantive claim of entitlement, (2) colorable, and (3) one whose resolution would not serve the purposes of exhaustion. The statutory exhaustion requirements of do not bar the filing of a colorable due process claim in federal court regarding pending Indian probate proceedings. The Court concluded that Anderson does not demonstrate a deprivation of due process sufficient to abrogate the statutory requirement of finality. Anderson also failed to demonstrate that further administrative proceedings would be futile and would not be objectively futile. Affirmed.
Ecological Rights Foundation v. Pacific Lumber
Case No. 99-17076
U.S. Court of Appeals for the Ninth Circuit
ENVIRONMENTAL-STANDING OF ORGANIZATION TO SUE-WATER POLLUTION CONTROL ACT
The Ecological Rights Foundation consists of a number of people that use the recreational area in common with the industrial use by Pacific Lumber. They suspect that the runoff from Pacific Lumber's activities is damaging the creek and its wildlife, and they enjoy their activities less than they would if there were no such runoff. ERF sued Pacific Lumber for violation of the Federal Water Pollution Control Act, better known as the Clean Water Act. The district court granted Pacific Lumber's motion for summary judgment on the ground that the plaintiffs lacked standing to sue.
HELD:An organization has standing to bring suit on behalf of its members when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The injury in fact requirement for standing in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that that interest is impaired by a defendant's conduct. An individual can establish injury in fact by showing a connection to the area of concern sufficient to make credible the contention that the person's future life will be less enjoyable. Reversed and remanded.
The Association Of Mexican-American Educators V. State Of California / California Commission On Teacher Credentialing
Case No. 96-17131
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-CALIFORNIA USE OF A QUALIFICATION TEST FOR TEACHER CREDENTIALING
In 1983, the California legislature amended the California Education Code to prohibit the California Commission on Teacher Credentialing from issuing any credential, permit, certificate, or renewal of an emergency credential to any person to serve in the public schools unless the person has demonstrated proficiency in basic reading, writing, and mathematics skills. Plaintiffs are a class of Mexican-American, Asian- American, and African-American educators and would-be educators in California. They sued for violation of the Civil Rights Act. At the trial the district court used of a technical advisor. After a grant of summary judgment on some issues and a bench trial, judgment was for defendants.
HELD: The district court did not clearly err in concluding that the test questions had been shown by professionally acceptable methods to be predictive of or significantly correlated with the element of work behavior. Title VII of the Civil rights Act applies to the California Basic Education Skills Test; that the CBEST was validated properly; that the district court permissibly used a technical advisor; and that the district court did not abuse its discretion by refusing to award costs to Defendants. Affirmed.
Caldwell V. Enstrom Helicopter Corporation
Case No. 99-15746
U.S. Court of Appeals for the Ninth Circuit
OTHER-AVIATION LAW-GENERAL AVIATION REVITALIZATION ACT-EIGHTEEN YEAR STATUTE OF REPOSE-FLIGHT MANUAL AS INTEGRAL PART OF AIRCRAFT
Helicopter pilot Brian Caldwell took two persons on a sightseeing tour of Saipan. Caldwell did not know that the last two gallons of gasoline in the helicopter's fuel tanks could not be used. The helicopter was within 10 minutes of its destination when it ran out of usable fuel and crashed. Caldwell and one passenger were killed. The helicopter was manufactured and sold 23 years before the accident. The helicopter's flight manual had been revised in the past 18 years and was alleged to be defective because it did not include a warning that the last two gallons of gasoline in the fuel tanks would not burn. The district court dismissed the action based on the limitation period provided by the General Aviation Revitalization Act.
HELD: The GARA applies because this is a civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft. The GARA provides for an 18-year statute of repose for civil actions against manufacturers of general aviation aircraft and component parts. The 18-year period begins anew if the death, injury, or damage is caused by any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft. Federal regulations require that manufacturers of helicopters include a flight manual with each helicopter and that the manual contain information necessary for safe operation because of design, operating, or handling characteristics. The manual must include information about a gas tank's unusable fuel supply. A flight manual is an integral part of the general aviation aircraft product that a manufacturer sells. If Defendant substantively altered, or deleted, a warning about the fuel system from the manual within the last 18 years and the revision or omission is the proximate cause of the accident, then GARA does not bar the action. Reversed and remanded.
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