Wasserman's Appellate Summaries
November 1, 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, November 1, 2000
6 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
*People v. Cooper holds that the 15% limitation for good time / work time credits on most felonies is not applicable to pre conviction local time served.
A voluntary declaration of paternity has the effect of a judgment of paternity.
People v. Cooper
Case No. A087483
(The FACTS and part I of this opinion are not certified for publication.)
California Court of Appeal, First District, Division Five
CRIMINAL-SENTENCING-ALLOWANCE OF CREDITS FOR GOOD TIME / WORK TIME
Cooper was convicted of the second degree murder of his wife. He was sentenced to 15 years to life for murder plus one year for the personal use of a weapon. The trial court awarded Cooper sentencing credits of 336 days for actual time served plus 50 days of preconviction good time/work time credits. The latter figure was calculated pursuant to the limitation of presentence conduct credits for persons convicted of a violent felony to 15 percent of the time served.
HELD: At the time of the offense the Penal Code allowed prisoners convicted of murder to earn custody credits so as to reduce their minimum term. Upon analysis of the statutes involved the Court concluded that, for prisoners, as distinct from detainees, the statutes restricts only worktime credits to 15%. Cooper was entitled to 168 days for local conduct credits. Affirmed as modified.
Rattan v. United Services Automobile Association
Case No. D033394
California Court of Appeal, Forth District, Division One
INSURANCE-INSTRUCTIONS-AGENCY OF SUBCONTRACTOR RECOMMENDED BY INSURER TO PERFORM REPAIRS AND TO RENDER SERVICES
Rattan owns a home, which was insured by United Services Automobile Association. The home was severely damaged by a fire. Because of the substantial nature of the damage Rattan was forced to leave the home and put most of his personal possessions in storage. USAA suggested that Baker Pacific, one of USAA's preferred contractors, whose work USAA guaranteed do the work. Rattan used the storage company suggested by Baker Pacific to store their personal possessions during repairs. Rattan retained Baker to make the needed structural repairs. Performance by Baker Pacific was defective in a number of respects. USAA agreed to pay Baker Pacific for its claim for work done and remitted this amount to Rattan. Rattan refused to pay Baker Pacific in full. Baker Pacific recorded a mechanics lien. A new contractor was hired and completed the work. Rattan moved in and then sued USAA for bad faith. Rattan hired an expert, who found the attic was covered with smoke. USAA paid for correction of this problem before trial. When Rattan moved back into the house he discovered that his personal property had been damaged while in storage. USAA paid over $240,000 for personal property damage at the time of trial. The trial court refused to give an agency instruction for Baker Pacific and the storage company. Judgment was for USAA.
HELD:There was no error in refusing to give BAJI No 13.20, relating to when one party is the agent of another. Outside of the bad faith insurance contact the California Supreme Court has been unwilling to permit tort recovery for the bad faith breach of a contract, unless in addition to the breach of the covenant a defendant's conduct violates a fundamental public policy of the state. The trial court was also fully warranted in rejecting and instruction relating to the Department of Insurance regulations that would have suggested to the jury that any violation of the regulations was per se a breach of contract or an act bad faith, rather than only evidence of a breach or bad faith. Affirmed.
Malish v. City Of San Diego
Case No. D034544
California Court of Appeal, Fourth District, Division One
GOVERNMENT-LOCAL ORDINANCES REGULATION PAWNBROKERS-PREEMPTION BY STATE STATUTES
Malish is the pawnbrokering business. The City, through its police department, enforces certain ordinances regulating pawnbrokers. Under these ordinances, the police have required Malish to have a local police permit in addition to a state license as a condition of engaging in the business of a pawnbroker, conducted warrantless searches of his business premises and engaged in disciplinary procedures against his local permit without taking any action against his state license. Malish filed suit alleging that state statutes preempt the ordinances. Judgment was for the City.
HELD:The Business and Professions Code regulates pawnbrokers. Similar provisions are set forth in Financial Code. The B&P Code expresses the Legislature's intent to curtail the dissemination of stolen property and to facilitate the recovery of stolen property by means of a uniform, statewide, state-administered program of regulation of pawnbrokers. The Code specifically states that it is the intent of the Legislature that the code provisions shall not be superseded or supplanted by the provisions of any ordinance or charter of any city, county, or city and county. Reversed.
In Re: Liam L., / San Diego County Health And Human Services Agency v. Richard L.
Case No. D035478
California Court of Appeal, Fourth District, Division One
FAMILY LAW-EFFECT OF VOLUNTARY DECLARATION OF PATERNITY
The juvenile court determined Richard L. to be the presumed father of Liam L. The parents did not seem to have the capability of caring for the child, who had special medical problems at birth. A petition to make the child a dependent of the court was filed. A paternity problem surfaced, since the mother was married to David, with whom she had lost contact, and David was the presumed father. The court granted Richard's request for presumed father status based on the voluntary declaration of paternity that he signed at the hospital where Liam was born.
HELD:Since 1993 the Family code provides for establishment of paternity by voluntary declaration. Richard and the mother, Hidey both signed a voluntary declaration of paternity two days after Liam's birth, declaring that Richard was Liam's father. The declaration established that Richard was Liam's father with the same force and effect as a paternity judgment. The law gives presumed father status to those who have taken an active role in their children's lives, and such fathers are generally entitled to all the rights afforded to parents in dependency proceedings, including reunification services. Affirmed.
Citicorp North America v. Franchise Tax Board
Case No. A086925
California Court of Appeal, First District, Division Five
ORDER Modification of opinion filed October 2, 2000, not effecting the judgment.
Usa v. Chung Lo
Case No. 99-10303
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-MAIL FRAUD-EVIDENCE OF MAILING DOCUMENTS RELATED TO FRAUDULENT TRANSACTIONS-CONSPIRACY
Chung Lo is a San Francisco real estate broker. In one transaction she arranged for a fictitious co-borrower to enable the buyer to qualify for a real estate loan. In two other transactions she arranged for a sham sale for heavily encumbered properties by submitting false information in the loan applications. The fourth transaction was another false financial information application for the borrowers, which was discovered before the transaction took place. Lo was convicted of eight counts of mail fraud and related charges.
HELD: A conviction for mail fraud requires proof that the defendant devised or intended to devise a scheme to defraud a victim of his money or property; and that in executing the scheme, the defendant made use of or caused the use of the mails. The only mailing allegation in one count of the indictment is that Lo knowingly caused the mailing of a Truth in Lending Disclosure/Good Faith Estimate document, which sets forth the fees and costs of the transaction. The document was allegedly sent by the escrow in the normal course of business and that Lo knew that this document would be sent in the ordinary course of the transaction. The government failed to provide sufficient evidence to establish the required mailing element with regard to the Disclosure statement. The fact that the County Recorder mailed the deeds to the parties was found to be sufficient to affirm the conviction for the sham sales and the conspiracy charges.__Affirmed and reversed in part.
United Reporting Publishing Corporation v. California Highway Patrol
Case No. 97-55111
U.S. Court of Appeals for the Ninth Circuit
ORDER-RESTRICTION ON RELEASE OF NAMES AND ADDRESSES OF PERSONS ARRESTED TO THOSE WHO WOULD NOT USE THE INFORMATION FOR COMMERCIAL PURPOSES
ORDER On remand from the Supreme Court, the Ninth Circuit further remanded this First Amendment commercial speech case to the district court for further development of the record. The statue was stricken on appeal. The Supreme Court reversed, holding that the statutory provision is not susceptible to a facial constitutional challenge.
Usa v. Sealed 1
Case No. 00-35347
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-FOREIGN ASSISTANCE STATUTE-IMMINENCE OF CRIMINAL PROSECUTION NOT REQUIRED
The Russian Federation sought U.S. assistance in connection with an ongoing criminal investigation of alleged tax fraud. Because the details of the matter are under seal, and since it is not necessary for the decision, the factual background of the case is omitted. The district court denied the appellant's motion to dismiss, made on the ground that a criminal prosecution was not imminent.
HELD:The Court reviewed the history of the modern foreign assistance statute. It noted that the word imminent does not appear in the statute. It is also impossible to read an imminence requirement into the statute following the 1996 Amendment authorizing assistance in criminal investigations conducted before formal accusation. Had Congress wanted to authorize assistance to foreign investigations only when foreign proceedings are imminent, it could have said so. Affirmed.
American Association Of Naturopathic Physicians v. Hayhurst
Case No. 99-35823
U.S. Court of Appeals for the Ninth Circuit
ORDER Amendment of opinion filed September 18, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
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