Wasserman's Appellate Summaries
October 31, 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 31, 2000
9 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
Can a prevailing defendant collect attorney fees when a non signatory plaintiff sues as a third party beneficiary of a written contract, which contains an attorney fee provision.
When is a disabling injury with multiple causes, from off the job and on the job, covered under the City's disability ordinance? Answer: When it is a preexisting condition.
Discovery of an expert witness prior representation of plaintiffs and defendants can be compelled.
Multiple hearsay testified to by police officers-neighbors interpretation of statements of the victim and witnesses to police officers - is not competent evidence to support holding the defendant to answer.
People v. Ortega
Case No. A087932
(Certified For Publication With The Exception Of Parts Ii And Iii.)
California Court of Appeal, Second District, Division Two
CRIMINAL-SENTENCING-DISCRETION TO STRIKE CONVICTION
Ortega was convicted of attempted voluntary manslaughter, assault with a firearm, and true findings were made for various related enhancements. At sentencing the court found that the two offenses for which he was convicted arose out of the same acts and aren't different offenses. The court stated that it would nevertheless deny the motion to dismiss one of the two offenses because of the always present possibility of reversal of the remaining count. The court stayed execution of the assault with a firearm conviction.
HELD: The Penal Code authorizes a trial court to dismiss a criminal action in furtherance of justice on its own motion. The court understood it had discretion to set aside the conviction. It exercised that discretion in refusing to dismiss the conviction. Once the court had stayed execution of the sentence, there was no specter of double punishment before the trial court. The trial court in this instance did not abuse its discretion. Affirmed.
Sessions Payroll Management v. Noble Construction Company
Case No. B128565
California Court of Appeal, Second District, Division Three
CIVIL-THIRD PARTY BENEFICIARY RIGHT TO ATTORNEY FEES-WHEN A THIRD PARTY BENEFICIARY PLAINTIFF WOULD NOT BE ENTITLED TO ATTORNEY FEES IF IT PREVAILS IN AN ACTION THE PREVAILING DEFENDANT IS NOT ENTITLED TO ATTORNEY FEES
Noble was the general contractor on a construction project. It hired Mackey to provide staffing for the project. Mackey then made an oral agreement for Sessions to handle Mackey's payroll requirements. Sessions advanced payment on a payroll disbursement. Mackey failed to reimburse Sessions. The subcontract by Nobel with Mackey provided that; except as specifically prescribed herein, this Agreement shall not create any rights of or confer benefits upon, third parties. The Noble-Mackey subcontract also contained an attorney fee clause. Sessions sued Noble, as a third party beneficiary of the Noble-Mackey contract, alleging that Sessions informed Noble that it was doing the payroll for Mackey and Noble said O.K. Noble paid Mackey for his company's labor by making checks to David Mackey Drywall and Sessions Payroll Management. Noble's demurrer was granted. Noble's motion for attorney fees was granted.
HELD: HELD: The Civil code provides that if a written contract provides for attorney fees to one party to the contract, then any prevailing party in an action under the contract is entitled to its attorney fees. Under some circumstances the reciprocity principles of Civil Code will be applied in actions involving signatory and non-signatory parties. Where a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed. There is no indication that Sessions was an intended beneficiary of the Noble-Mackey contract no indication and intended to benefit Sessions by including it within their contractual attorney fee clause. There would be no mutuality of remedy in this situation. Reversed.
Lester v. Lennane
Case No. C030662
California Court of Appeal, Third District
FAMILY LAW-APPEALABLE ORDERS-CUSTODY ORDER-BEST INTEREST OF CHILD-GENDER BIAS
Lennane lived in Florida and had business ties to his former residence in Sacramento. He met Judith Lester on a trip to Sacramento and had intercourse once with her. A child was born of this union. In a pretrial order the father, Lennane, was limited to one hour a day of visitation with the newborn child of Lennane and the mother, Judith Lester. After a trial Lester was awarded primary physical custody of the child.
HELD:In this 88 page opinion the Court first concluded that the pretrial orders were not appealable as final orders. An appellant's opening brief is now required to contain either a statement that the appeal is from a judgment that finally disposes of all issues between the parties or a statement explaining why the order or non final judgment is appealable. Lennane's charge that the Judge had a predetermined disposition, based on gender bias, to reject Lennane's custody claim simply because Lennane was the father is untenable. The record shows that the judge's constant and overriding concern was for the best interests of the warring parties' infant child. Affirmed the permanent custody order. The purported appeals of the orders were dismissed.
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.
Alesi v. Board Of Retirement Of The San Diego City Employees Retirement System
Case No. D033709
California Court of Appeal, Fourth District, Division One
EMPLOYMENT-GOVERNMENT RETIREMENT SYSTEM-INJURY NOT SUSTAINED IN COURSE OF EMPLOYMENT-SOLE CAUSE OR CONTRIBUTING CAUSE-EXCLUSION FROM DISABILITY BENEFITS FOR PREEXISTING CONDITION
Alesi injured his left knee several times before beginning his employment with the City. The City hired Alesi as a Utility I Worker. His duties included cleaning storm drains and performing street maintenance. Alesi reinjured his left knee at work when he slipped and fell. He returned to work on light duty after undergoing surgery for that injury. Five years later he suffered additional knee problems as the result of operating a jackhammer at work and attempting to jet ski. He returned to work after undergoing another surgery and in several months later reinjured the knee getting into a truck. Alesi applied for an industrial disability retirement based on his knee injury. The decision after a hearing was that Alesi did not sustain his burden of showing the injury was sustained in the course of his employment. Alesi's sought mandate. Judgment was for the City.
HELD: The San Diego Municipal Ordinance provides that; any member of the Retirement System permanently incapacitated from the performance of duty as the result of injury or disease arising out of or in the course of his or her employment and; (1) not arising from a preexisting medical condition shall be retired for disability with retirement allowance, regardless of age or amount of service. The Ordinance expressly limits disability retirement to employees whose disabling injuries do not arise from a preexisting medical condition. Based on the finding that his disability arose from his original knee injury and was merely aggravated by his employment-related injuries, the court properly denied Alesi's petition for a writ of mandate. Affirmed.
Stony Brook I Homeowners v. Superior Court / Diehl
Case No. D035245
California Court of Appeal, Fourth District, Division One
TORTS-DISCOVERY OF EXPERT WITNESS PRIOR WORK FOR DEFENDANTS AND PLAINTIFFS
Stony Brook was sued for injuries sustained by Diehl. Stony Brook retained Schwab, an orthopedic specialist to evaluate his injuries. Before his deposition the trial court ordered that Schwab produce a summary showing his total compensation for defense work and total compensation for plaintiffs work over the last four years. Because producing such a summary would take 90 hours of labor and significantly disrupt his practice, the trial court also ordered that the specialist provide access to his patient files to temporary personnel who would compile the information needed for the summary.
HELD: Diehl is entitled to know what percentage of Schwab's practice involves examining patients for the defense and how much compensation he derives from defense work. Although an expert must provide such information about his role in prior proceedings as will permit an adversary a meaningful opportunity to demonstrate any bias or prejudice, precise information about the number of cases in which the expert has testified or the amount of compensation the expert has received is not required. When the interest of a private litigant in discovering relevant facts conflicts with the right of others to maintain reasonable privacy regarding their financial affairs, a court must indulge in a careful balancing before ordering disclosure. Requiring a precise accounting of Dr. Schwab's expert practice, excessively intrudes upon Dr. Schwab's legitimate privacy interests and unnecessarily threaten Stony Brook's right to present expert testimony on a material issue in the case. Mandate issued, with directions as to a new order as to the scope and method of providing the information.
Walt Rankin & Associates, Inc. v. City Of Murrieta
Case No. E024139
California Court of Appeal, Fourth District, Division Two
CIVIL-PAYMENT BOND REQUIREMENT FOR WORK OF CONSTRUCTION FOR GOVERNMENT ENTITY-DUTY OF GOVERNMENT ENTITY TO INVESTIGATE SURETY SOLVENCY
The City of Murrieta awarded a construction contract to KLM, which was required by statute to provide a payment bond to the City, KLM defaulted in payment to Walt Rankin and other subcontractors. The surety was nowhere to be found. The subcontractors sued the City for negligent breach of a mandatory duty to require the surety to be an admitted surety. Judgment was for the City.
HELD:Under the Tort Claims Act a public entity is not liable for injury arising from an act or omission except as provided by statute. The Government Code provides that; where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. Analyzed in conjunction with the Bonds and Undertakings Law requirements a mandatory duty is imposed on a government entity to determine whether the surety is an admitted surety insurer prior to accepting a payment bond from that surety and to investigate a surety's solvency. Reversed.
Correa v. Superior Court / The People
Case No. G027265
California Court of Appeal, Fourth District, Division Three
CRIMINAL-MULTIPLE HEARSAY-POLICE OFFICERS TESTIFYING AS TO TRANSLATION BY NEIGHBORS OF STATEMENTS OF VICTIM AND WITNESSES
Two English-only-speaking police officers responded to a domestic violence call and were confronted with a Spanish-only-speaking victim, Miguel Gil, and Spanish-only-speaking witnesses, Patricia Gil and petitioner's mother. Two neighbors, Hector and Higinia Garcia acted as translators. Correa was arrested for assault. The two testified at the preliminary hearing as to their English-Spanish language ability. Hector admitted that he only told the officers in English the gist of what he was told by the witnesses in Spanish. Higinia's English was limited. The officers related the victim's and witnesses' statements to them, as related by Hector and Higinia. The magistrate held Correa to answer. Correa's motion to dismiss was denied.
HELD:Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Among the exceptions to the exclusion of hearsay is that at a preliminary hearing in criminal cases hearsay may be admitted. A probable cause determination at a preliminary hearing may be based on hearsay statements related by a police officer with certain qualifications and experience. The California Supreme court has held testimony of a noninvestigating officer or "reader" merely reciting the police report of an investigating officer cannot be the basis of a finding of probable cause at the preliminary hearing. This case has been interpreted by the courts as precluding the use of multiple hearsay. Double hearsay, like "reader" testimony, has inherent uncertainties. The officer's testimony in this case is a classic example of double hearsay. The interpreter adds a layer of hearsay for which there is no legal exception. The testimony was inadmissible, there was insufficient evidence to hold petitioner to answer, and her Penal Code motion to set aside the information should have been granted. Mandate issued to vacate the denial of the motion and to grant the motion
USA v. Howell
Case No. 99-10573
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FAILURE OF PROSECUTION TO DISCLOSE ERRORS IN THE POLICE REPORTS-HARMLESS ERROR-DISCRETION TO HOLD EVIDENTIARY HEARING ON MIRANDA WARNING-REFUSAL OF COURT TO CONSIDER SUPPLEMENTAL DECLARATIONS AFTER MAGISTRATE HEARING-EVIDENCE OF PRIOR SIMILAR OFFENSES-EXCUSE OF JUROR FOR BIAS WITHOUT ALLOWING DEFENSE QUESTIONING OF JUROR
Howell was traveling by bus with a companion. In Las Vegas a canine alerted to a black bag, which contained cocaine and Howell's wallet. He confessed after he arrested. Howell was convicted of possession of cocaine with intent to distribute and was sentenced to 120 months in prison. There was a glaring discrepancy in two police reports of who possessed the bulk of the $2,000 paid to transport the cocaine. This was not revealed to Howell, who relied on the discrepancy in his defense and in the opening statement. During voir dire a juror admitted that he would be unable to weigh equally the testimony of a police officer and the testimony of a civilian. He was excused and Howell was not permitted to question the juror. Based on the potential juror's candid admission, the district court excused him. Howell's counsel requested to ask the potential juror questions, but the district court refused.
HELD: Howell's motion to hold an evidentiary hearing on the admissibility of his confession was comprised of boilerplate language relating to the absence of a Miranda admonition. The magistrate judge recommended denial based on the absence of specific facts. The district court refused to consider Howell's supplemental factual allegations and rejected his request for an evidentiary hearing. A district court has discretion as to consideration of evidence presented for the time in a party's objection to a magistrate judge's recommendation. The district court properly exercised its discretion in refusing to consider Howell's supplemental factual allegations. The mistakes in the police reports of where the money was found constituted textbook examples of impeachment evidence as to where the officers found the money. This due process error was found to be harmless. Whether to allow supplemental questions proposed by counsel during voir dire is within the sound judicial discretion of the court. The court did not abuse its discretion in not allowing Howell to excuse the juror excused for bias against the police. Howell's prior convictions for cocaine possession and intent to deliver cocaine were properly admitted to show intent, preparation, plan, and knowledge. A mere presence instruction was properly refused as not supported by any evidence. Affirmed.
USA v. Patterson
Case No. 99-50739
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-BASE OFFENSE FOR ESCAPE FROM SUPERVISED RELEASE
Patterson served two years for unlawful use of a communication facility. He was then placed in a community corrections center. Two days later, he signed out of the facility under a work release program and never returned. Patterson pled guilty to escaping from custody. Patterson was in custody following revocation of the supervised release imposed as part of his original sentence. At sentencing, the district court applied a base offense level of 13.
HELD: When supervised release is imposed as part of a sentence and then revoked in subsequent proceedings, the resulting confinement is by virtue of the original conviction. That the custody-escaped from was by virtue of conviction of any offense is a statutory element of the crime charged and was specifically alleged in the indictment. In such case the base offense level was for a felony arrest or, as in this case, a conviction of any offense, is applicable. Affirmed.
Ruby Simkins / M&K Enterprises v. Nevadacare
Case No. 99-16844
U.S. Court of Appeals for the Ninth Circuit
ORDER-INSURANCE COVERAGE FOR CANCER TREATMENT Amendment to opinion filed October 3, 2000, not effecting the judgment.
Cunningham v. Gates
Case No. 99-16844
U.S. Court of Appeals for the Ninth Circuit
ORDER-EXCESSIVE FORCE IMMUNITY SUIT AGAINST CITY OF LOS ANGELES Minor amendment to opinion filed on September 15, 2000, not effecting the judgment..
*Change in law, interesting case, or just watch out!
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