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https://www.courtlistener.com/api/rest/v3/opinions/1313982/
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708 N.W.2d 602 (2005)
270 Neb. 752
STATE of Nebraska, appellee,
v.
Elmore HUDSON, Jr., appellant.
No. S-05-089.
Supreme Court of Nebraska.
December 9, 2005.
*603 Brian S. Munnelly for appellant.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
STEPHAN, J.
This is an appeal from an order denying a motion for postconviction relief without an evidentiary hearing. We conclude that *604 appellant, Elmore Hudson, Jr., is entitled to an evidentiary hearing on certain issues raised in his postconviction motion, and we therefore reverse, and remand to the district court for further proceedings.
BACKGROUND
Following a jury trial in the district court for Douglas County, Hudson was convicted of first degree murder, attempted second degree murder, and two counts of use of a deadly weapon to commit a felony. He was sentenced to life imprisonment for the first degree murder conviction, 30 years' imprisonment for the attempted second degree murder conviction, and 20 years' imprisonment for each of the two weapons convictions, with all sentences to be served consecutively. The district court credited Hudson with 692 days served, but applied the credit against the life sentence only.
Hudson's trial counsel represented him on direct appeal. He assigned error by the district court in (1) denying Hudson's motion for new trial based upon an alleged improper communication between the trial judge and the jury concerning the length of time for deliberation; (2) denying Hudson's motion to dismiss based upon the State's alleged failure to prove that he caused the victim's death; and (3) receiving, over Hudson's objection, the testimony of an expert witness called by the State. We did not reach the issue of whether there was an improper communication between the trial court and the jury, reasoning that because Hudson "did not move for a mistrial based upon the alleged improper communication, he cannot now complain of an unfavorable verdict." State v. Hudson, 268 Neb. 151, 167-68, 680 N.W.2d 603, 616 (2004). We found no merit in the remaining assignments of error and affirmed the convictions and sentences. Id.
Following our resolution of his direct appeal, Hudson filed a pro se motion for postconviction relief in the district court for Douglas County. He subsequently filed a motion to supplement his original motion with additional allegations. Although Hudson's pleading is not artful, we conclude that it can be fairly read to raise two postconviction claims, both based upon the performance of counsel. First, Hudson alleges that counsel was ineffective in failing to object to the manner in which the district court awarded credit for time served and in failing to preserve the alleged error and raise it on appeal. Second, Hudson alleges that counsel was ineffective in failing to file the appropriate motion in the district court with respect to the alleged improper communication with the jury so as to preserve the issue for appeal. Neither claim is procedurally barred because Hudson was represented by the same attorney at trial and on direct appeal. See State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
Without stating its reasons or conducting an evidentiary hearing, the district court denied Hudson's claims for postconviction relief and denied his motion to supplement his original motion. After Hudson filed a notice of appeal, the district court sustained his motion for appointment of counsel to represent him for purposes of this appeal.
ASSIGNMENTS OF ERROR
Hudson assigns that the district court erred in denying him an evidentiary hearing on his motion for postconviction relief and in denying his motion to supplement the motion for postconviction relief.
STANDARD OF REVIEW
A defendant requesting postconviction relief must establish the basis for such relief, and the factual findings of the district *605 court will not be disturbed unless they are clearly erroneous. State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003); State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
ANALYSIS
The Nebraska Postconviction Act is available to a defendant to show that his or her conviction was obtained in violation of his or her constitutional rights. Neb. Rev.Stat. § 29-3001 et seq. (Reissue 1995); State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004); State v. Parmar, 263 Neb. 213, 639 N.W.2d 105 (2002). An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. When such an allegation is made, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005); State v. McHenry, supra; State v. Gonzalez-Faguaga, supra.
The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to effective assistance of counsel. State v. Narcisse, 260 Neb. 55, 615 N.W.2d 110 (2000). Hudson has made factual allegations of a denial of his Sixth Amendment right to effective counsel. Because the district court did not conduct an evidentiary hearing, the narrow issue before us is whether the trial record affirmatively establishes that Hudson is not entitled to postconviction relief.
We conclude that the trial record in this case does not affirmatively establish that Hudson is not entitled to postconviction relief. The trial court's application of credit for time served solely against Hudson's life sentence appears to be in direct conflict with State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001), in which we held that a defendant who received a sentence of life imprisonment for first degree murder and a consecutive sentence of 40 to 45 years' imprisonment for use of a firearm was entitled to credit for time served against the consecutive sentence. See, also, State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996). It is apparent from the trial record that Hudson's counsel did not raise this issue at the time of his sentencing, and the record is silent as to his reasons, if any, for not doing so. The issue was not raised on direct appeal. Thus, the files and records do not affirmatively show that Hudson is entitled to no postconviction relief on this claim.
The same is true with respect to Hudson's claim that his counsel was ineffective in responding to the allegedly improper communication between the trial judge and the jury. We note that the district court did not conduct an evidentiary hearing on this issue during the pendency of the criminal case, either at the time it was first raised by Hudson's counsel prior to return of the verdict, or when the issue was raised in his motion for new trial. Compare State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). The transcript includes written questions which the jury transmitted during its deliberations and the court's written responses, but the communication which is the subject of Hudson's postconviction motion is not reflected on that document. The only information in the record concerning this event comes from a transcribed colloquy between Hudson's counsel and the trial judge prior to return of the verdict, in which each recited their understanding or recollection of what occurred. This record does not affirmatively show that Hudson is not entitled to postconviction relief.
*606 CONCLUSION
For the reasons discussed herein, we conclude that the district court erred in denying Hudson's claims for postconviction relief without an evidentiary hearing. We therefore reverse, and remand with directions to hold an evidentiary hearing on the two claims of ineffective assistance of counsel discussed herein.
REVERSED AND REMANDED WITH DIRECTIONS.
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970 So. 2d 829 (2007)
CRISWELL
v.
STATE.
No. 2D07-2038.
District Court of Appeal of Florida, Second District.
December 21, 2007.
Decision without published opinion. Affirmed.
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196 Ga. App. 605 (1990)
396 S.E.2d 785
BROCK
v.
THE STATE.
A90A0557.
Court of Appeals of Georgia.
Decided July 6, 1990.
Rehearing Denied July 30, 1990.
Henry & Pearson, J. Hue Henry, for appellant.
Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.
POPE, Judge.
Appellant Jerry Brock was convicted of aggravated assault on a police officer, use of fighting words and obstruction of a police officer. The convictions arose out of an incident that occurred on August 26, 1986. Officer Thomas, a uniformed Clarke County Police Department officer, investigated a complaint that a juvenile was driving in a reckless manner. He found the car described in the complaint parked at a lawnmower shop. There he talked with defendant Brock, who was with the car and who denied that anyone had been driving it. He was belligerent and told the officer to mind his own business. Officer Thomas testified that Brock's attitude caused him to take the precaution of calling for backup as he completed his check of the car. Although he noted that the tires on the car were slick with no tread visible, Officer Thomas did not write a citation because the car was parked. Officer Thomas concluded his encounter with Brock and went to the complainant's house to explain what he had done. As he returned to his car, he saw Brock drive by. Officer Thomas got in his car, activated his squad car blue lights and attempted to stop Brock for the offense of driving with slick tires (defective equipment, OCGA § 40-8-7).
Brock ignored the officer and pulled into his driveway; the officer pulled in behind him, got out and asked Brock for his driver's license and proof of insurance. Instead, Brock started walking to his house, telling Officer Thomas to get out of his yard, that he had not done anything. Officer Thomas repeated his request two or three times and Brock continued to ignore him and head for his house. Just as Brock reached the doorway, Officer Thomas reached Brock, placed a hand on Brock's arm and told him that he was under arrest. Brock swung at the officer and tried to push him off the porch. Officer Thomas responded by hitting Brock in the side with his nightstick. Brock broke away into the house and the two men continued fighting, with Brock cursing Officer Thomas, who is black, and calling him "nigger." During the fight, the officer lost his radio, but did get to the phone *606 and called 911 and requested help. He left the phone off the hook and the rest of the altercation was recorded at the 911 communications center. In the course of the fight, Brock swung at the officer with a floor fan and a dining room chair. When help arrived, Brock was finally subdued, but not before Brock's son hit Officer Thomas with a screen door that had been dislodged in the fight.
1. Brock maintains that his arrest was unlawful. He argues that a police officer is not allowed to make a custodial arrest for a traffic or motor vehicle violation, but rather must issue the offender a citation. He bases this argument upon OCGA § 17-4-23 (a) which reads in pertinent part: "A law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation, licensing, registration, maintenance or inspection of motor vehicles by the issuance of a citation, provided the offense is committed in his presence ...." Officer Thomas initially tried to give Brock a citation for the misdemeanor offense of having defective equipment on his car (slick tires), a violation of OCGA § 40-8-7. However, when Brock ignored him, Officer Thomas sought to effect a custodial arrest. The question raised is whether a police officer is restricted to making an arrest for a traffic violation solely by means of a citation or does OCGA § 17-4-23 (a) simply provide police an alternative to custodial arrest for such violations. We hold that OCGA § 17-4-23 (a) simply gives police the discretion to write a citation but does not preclude physical arrest. OCGA § 17-4-20 permits a police officer to make a warrantless arrest for a crime committed in his presence. This power extends to misdemeanor offenses. King v. State, 161 Ga. App. 382 (1) (288 SE2d 644) (1982). The language of OCGA § 17-4-23 (a) that an officer "may arrest" for a traffic violation by means of a citation clearly is discretionary. For the convenience of the motoring public and the police, the Code section gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest. It does not mandate a citation.
The 11th Circuit Court of Appeals reached the same conclusion in the case of United States v. Wilson, 853 F2d 869, 871-873 (11th Cir. 1988). In that case, Wilson was arrested for driving with a suspended license. A subsequent search revealed drugs. The court rejected Wilson's argument that the search was unreasonable because his custodial arrest was unlawful due to the provisions of OCGA § 17-4-23 (a). After reviewing the statutory scheme of arrests, that court concluded, as we do, that OCGA § 17-4-23 (a) gives a police officer the option to issue a citation but does not restrict the power given to police in OCGA § 17-4-20 to make custodial arrests for crimes committed in their presence.
2. Brock argues that his arrest was unlawful because it was a warrantless seizure that occurred in his home in violation of the Fourth *607 Amendment to the Constitution of the United States. We disagree. The evidence shows that Brock committed the violation of driving with defective equipment in Officer Thomas' presence. When Officer Thomas first tried to issue a citation for the offense in the yard, Brock ignored him and retreated toward his house, where Officer Thomas caught him in the doorway. "`Absent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant.' Thompson v. State, 248 Ga. 343 (1) (285 SE2d 685) (1981), citing Steagald v. United States, 451 U. S. 204, 214, n. 7 (101 SC 1642, 68 LE2d 38) (1981). However, `a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.' United States v. Santana, 427 U. S. 38, 43 (96 SC 2406, 49 LE2d 300) (1976). Since the arrest of [Brock] in [his] house was based upon Officer [Thomas'] "hot pursuit" of the subject, such arrest was a lawful activity. See Martasin v. State, 155 Ga. App. 396 (2) (271 SE2d 2) (1980); Annot., 76 ALR2d 1432 § 2b." (Punctuation omitted.) Brown v. State, 163 Ga. App. 209 (1), 210 (294 SE2d 305) (1982) (cert. dismissed, 459 U. S. 1166) in United States v. Santana, supra, the U. S. Supreme Court held that a person standing in the open doorway of her house was in a public place subject to arrest by police upon probable cause and without violating the Fourth Amendment. Id. at 42. The arrest made by Officer Thomas was lawful.
3. Because Brock's enumerations 2, 3 and 4 are based upon the premise that the arrest was unlawful and his actions of violently resisting arrest were justified, and we have held in Divisions 1 and 2 that the arrest was legal, it follows that these enumerations are without merit.
Judgment affirmed. Deen, P. J., and Beasley, J., concur.
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699 So.2d 75 (1997)
William J. KAUFMANN and Karen Kaufmann, as Legal Co-Guardians of their daughter, Kimberly Blanche Kaufmann, and in their individually capacities
v.
FLEET TIRE SERVICE OF LOUISIANA, INC., Willie Brooks, St. Paul Fire and Marine Insurance and the City of New Orleans.
No. 97-C-1428.
Supreme Court of Louisiana.
September 5, 1997.
*76 Granted. Judgment of the court of appeal is vacated and set aside. Case remanded to the district court to reconsider in light of Act 483 of 1997 and Theriot v. Midland Risk Ins. Co. 95-2895 (La. 5/20/97), 694 So.2d 184.
VICTORY, J., not on panel.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2457815/
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323 S.W.2d 577 (1958)
Virgil MOORE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
December 12, 1958.
As Modified on Denial of Rehearing May 22, 1959.
*578 Zeb Stewart, Frankfort, for appellant.
Jo M. Ferguson, Atty. Gen., Earle V. Powell, Asst. Atty. Gen., for appellee.
BIRD, Judge.
Appellant was convicted of murder in the Lyon Circuit Court at Eddyville and was given the death penalty by a jury from Caldwell County. He is charged with the slaying of Owen Davenport, a prison guard at the State Penitentiary in Eddyville. Appellant was a prisoner at the time of the killing and Davenport was on duty in the prison yard.
Divers grounds have been presented for reversal. It is necessary to consider only one. Decisions on all other questions are reserved. All of the eyewitnesses in this case are felons and were confined in the penitentiary at the time of the killing. The appellant moved for a rule on the witnesses as provided by CR 43.09. The motion was overruled and the witnesses were permitted to remain in the court room. By the court's ruling they were permitted to hear each other testify and appellant contends that this is a reversible error.
This Court holds that trial courts have a broad discretion in applying the rule respecting the separation of witnesses and refuses to intervene in such matters except in cases where that discretion has been abused. Moore v. Com., 223 Ky. 128, 3 S.W.2d 190; Pool v. Com., 308 Ky. 107, 213 S.W.2d 603; Jones v. Com., Ky., 281 S.W.2d 920. However in the homicide action of Ray v. Commonwealth, 241 Ky. 286, 43 S.W.2d 694, we reversed a manslaughter conviction solely upon the trial court's refusal to apply the separation rule. See also Salisbury v. Commonwealth, 79 Ky. 425. The purpose of the rule is to elicit the truth, unveil the false and promote the ends of justice.
It may be that each witness testified truthfully in this case but, because of the nature of this action and because of the peculiar relationship existing between these witnesses and persons interested in the prosecution, the Court is of the opinion that the trial court erred in refusing to apply the rule of separation. For that reason the judgment is reversed.
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164 P.3d 366 (2007)
2007 UT 41
Nevin PRATT and Denise Pratt, Plaintiffs and Petitioners,
v.
Mary Ann NELSON (Roe); Douglas F. White; John Dustin Morris; William A. Mark; McKay, Burton, & Thurman, P.C.; and Does 1-200, Defendants and Respondents.
No. 20051167.
Supreme Court of Utah.
May 18, 2007.
*370 Carl E. Kingston, F. Mark Hansen, Salt Lake City, for plaintiffs.
John Dustin Morris, Salt Lake City, Douglas F. White, Bountiful, William A. Mark, North Salt Lake, for defendants.
DURRANT, Justice:
INTRODUCTION
¶ 1 The plaintiffs, Nevin and Denise Pratt (the "Pratts"), filed a defamation claim against the defendants, Mary Ann Nelson and her attorneys (the "Nelsons"). The Pratts' claim arose from statements the Nelsons made and distributed to the media during the course of a press conference.
¶ 2 We granted certiorari in this case and are presented with three issues: (1) whether the invited error doctrine precluded the Pratts on appeal from raising their argument concerning the judicial proceeding privilege; (2) whether the Nelsons' statements were absolutely privileged under the judicial proceeding privilege and, if so, whether they lost that privilege through excessive publication; and (3) whether the group defamation rule precluded the Pratts' defamation claim.
¶ 3 First, we hold that appellate review of the Pratts' argument regarding judicial privilege was not precluded by the invited error doctrine. Second, we hold that the Nelsons' statements, even if privileged, lost any immunity they may have had under the judicial proceeding privilege through excessive publication. Third, we hold that the group defamation rule does not preclude the Pratts' defamation claim. Therefore, we remand to the district court for further consideration of the Pratts' defamation claim.
BACKGROUND
¶ 4 On October 15, 1997, when Mary Ann Nelson[1] was sixteen years old, her father, Daniel Kingston, allegedly forced her to marry her uncle, David Kingston. On August 1, 2003, Mary Ann and her counsel filed a complaint (the "Kingston Complaint") in Utah's Third District Court against her father, her uncle, and various other defendants, including Nevin and Denise Pratt, as well as the attorneys representing the Pratts in this case, F. Mark Hansen and Carl E. Kingston. In its opening caption, the Kingston Complaint named the Pratts, among nearly 400 other defendantsincluding individuals, businesses, churches, and associationsall of which allegedly had ties with the polygamous Kingston family and organization. Further, the body of the Kingston Complaint named the Pratts in a list with 240 other defendants known as "Order Individuals," and referred to these Order Individuals, along with 97 "Order Businesses," as "Order Members." The Kingston Complaint contained allegations of intentional and negligent sexual abuse of a child, assault, battery, false imprisonment, intentional and negligent infliction of emotional distress, negligence, and civil conspiracy. The Kingston Complaint alleged that Order Members, a group which specifically included the Pratts, were negligent and had assisted, encouraged, conspired, or knew of and failed to prevent or report the abuses alleged to have been committed by Mary Ann's father and uncle.
*371 ¶ 5 On August 28, 2003, Mary Ann and her counsel held a press conference concerning the lawsuit to which they invited members of both the Utah local press and the Associated Press. Ultimately, the press conference made local, national, and international news, reaching various media throughout the world via newspaper, television, and the internet. At that press conference, Mary Ann and at least two of her attorneys made several statements regarding the defendants listed in the Kingston Complaint. These statements did not specifically mention the Pratts by name, but instead made general reference to the "society," the "organization," and "the Order." Additionally, Mary Ann's attorneys provided copies of the previously filed Kingston Complaint to members of the press. They also gave copies of Mary Ann's prepared written statement (the "Prepared Statement") to two or three reporters.[2] One of Mary Ann's attorneys told reporters that the individuals identified by name in the complaint were "the key members of the Kingston organization" and that the Nelsons were trying to punish and "make an example of them."
¶ 6 On February 11, 2004, the Pratts filed a complaint alleging, among other claims, that the Nelsons had defamed the Pratts at the press conference and through the publicity that resulted from it. In response, the Nelsons filed a motion to dismiss for failure to state a claim. The Pratts filed a memorandum in opposition to the motion to dismiss, and the Nelsons responded with a reply memorandum in support of their motion to dismiss. In their reply memorandum, the Nelsons argued for the first time that the judicial proceeding privilege precluded any of the Pratts' defamation claims that were founded on the Kingston Complaint. In addition, the Nelsons included with their reply memorandum the affidavit of William Mark, one of Mary Ann's attorneys who were present at the press conference. Mark's affidavit averred that the Nelsons had only generally referred to the defendants named in the Kingston Complaint, never mentioning the Pratts by name. The district court entered an order converting the Nelsons' motion to dismiss into one for summary judgment and allowing the parties to file supplemental pleadings.
¶ 7 On May 7, 2004, the district court issued an order stating that the Nelsons' reply memorandum had raised the judicial proceeding privilege for the first time. In the interest of fairness, the district court granted the Pratts eight days to respond solely to that issue. But the Pratts did not file their responsive memorandum until over a month after the district court's deadline for filing had passed. The Pratts offered no explanation for their late filing, nor did they seek an extension of the deadline. The Nelsons moved to strike the Pratts' late response. The Pratts filed a memorandum opposing the Nelsons' motion to strike and moved to strike the Nelsons' judicial privilege argument as improperly raised for the first time in a reply memorandum.
¶ 8 On August 17, 2004, the district court entered its ruling on all pending motions. The district court granted the Nelsons' motion to strike the Pratts' late memorandum, ruling that the memorandum would not be considered because it was unauthorized under rule 7 of the Utah Rules of Civil Procedure. The district court also denied the Pratts' motion to strike the Nelsons' judicial privilege argument, reasoning that the Pratts had been given the opportunity to address the argument but had chosen not to respond within the allotted time and were "solely to blame for their own late filing" and could not "complain of unfairness." The district court then considered the Nelsons' motion for summary judgment.
*372 ¶ 9 The district court concluded that the Kingston Complaint was protected by the judicial proceeding privilege, which "acts as an absolute bar to the Pratts' claim of defamation arising from allegations made in [the Kingston C]omplaint." The district court also held that the Prepared Statement was not defamatory toward the Pratts, as a matter of law, because the statement never specifically mentioned the Pratts, but only referred to a larger group of persons, such as the "leaders of the Kingston organization," "the people that we are bringing this lawsuit against," and "the Kingston Family Organization." The district court concluded that "no reasonable jury could interpret the [Prepared S]tatement to refer to [the Pratts] specifically."
¶ 10 The Pratts appealed to the Utah Court of Appeals, which affirmed the district court's grant of summary judgment.[3] The court of appeals did not reach the merits of the Pratts' challenge to the district court's application of the judicial proceeding privilege because the Pratts "invited any error in the trial court's ruling."[4] The court of appeals held that the invited error doctrine precluded the Pratts from arguing this issue on appeal and, as a result, affirmed the district court's ruling "dismissing the Pratts' claims that [were] founded upon their names appearing in the Kingston Complaint."[5] Consequently, the Pratts could not "rely on any references to them in the Kingston Complaint to support their claims based on statements the [Nelsons] made at the press conference."[6] Thus, the court of appeals concluded that under the group defamation rule "the [Nelsons' other] statements cannot, therefore, be reasonably understood to refer to the Pratts without the aid of the Kingston Complaint."[7]
¶ 11 We granted certiorari as to the issues presented above and have jurisdiction pursuant to Utah Code section 78-2-2(5).
STANDARD OF REVIEW
¶ 12 "On certiorari, we review the court of appeals' decision for correctness, focusing on whether that court correctly reviewed the trial court's decision under the appropriate standard of review."[8] "In the context of a summary judgment motion, which presents a question of law, we employ a correctness standard and view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party."[9]
ANALYSIS
¶ 13 We are presented with three issues regarding the Pratts' defamation claim. We will first discuss our invited error doctrine and its application to this and other cases. Next, we will discuss the judicial proceeding privilege and the excessive publication rule, specifically with respect to statements made and distributed during a press conference. Finally, we will discuss the group defamation rule and its application to the statements at issue in this case.
I. THE INVITED ERROR DOCTRINE
¶ 14 This case initially turns on whether the Pratts may make an argument on appeal regarding the judicial proceeding privilege. The court of appeals held that the "invited error" doctrine precluded the Pratts from doing so. We now use this occasion to discuss our invited error doctrine and to clarify its application to this and other cases. We hold that invited error did not preclude the Pratts from advancing their judicial privilege argument on appeal and therefore the issue is now properly before us.
A. Preserving an Issue for Appeal
¶ 15 Generally, "in order to preserve an issue for appeal the issue must be *373 presented to the trial court in such a way that the trial court has an opportunity to rule on that issue."[10] We have set forth three factors that help determine whether the trial court had such an opportunity: "`(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority.'"[11] In short, a party may not claim to have preserved an issue for appeal by "merely mentioning . . . an issue without introducing supporting evidence or relevant legal authority."[12] Ultimately, the preservation requirement "is based on the premise that, `in the interest of orderly procedure, the trial court ought to be given an opportunity to address a claimed error and, if appropriate, correct it.'"[13]
B. A "Plain Error" Review May Be Available in Cases Where a Party Has Failed to Preserve an Issue for Appeal
¶ 16 In cases where a party raises an issue on appeal, but the party did not properly preserve the issue below, "we review it under the manifest injustice or plain error standard."[14] Under plain error review, we may reverse the lower court on an issue not properly preserved for appeal when a party can show the following: "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the [party], or phrased differently, our confidence in the verdict is undermined."[15] Nevertheless, under the invited error doctrine, "we have declined to engage in even plain error review when `counsel, either by statement or act, affirmatively represented to the [trial] court that he or she had no objection to the [proceedings].'"[16]
C. "Invited Error" Precludes Appellate Review of an Issue
¶ 17 "Our invited error doctrine arises from the principle that a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error."[17] By precluding appellate review, "the doctrine furthers this principle by `discouraging parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal.'"[18] Further, parties are "not entitled to both the benefit of not objecting at trial and the benefit of objecting on appeal."[19] Thus, "[e]ncouraging counsel to actively participate in all proceedings and to raise any possible error at the time of its occurrence *374 fortifies our long-established policy that the trial court should have the first opportunity to address a claim of error."[20]
1. Invited Error Generally Requires an Affirmative Representation to the Court
¶ 18 We have recently stated, "Affirmative representations that a party has no objection to the proceedings fall within the scope of the invited error doctrine because such representations reassure the trial court and encourage it to proceed without further consideration of the issues."[21] The following cases illustrate affirmative representations that can properly be characterized as leading the court into error.
¶ 19 In State v. Hamilton,[22] the defendant argued on appeal that instructions given to the jury were prejudicial.[23] But before the trial court instructed the jury on the law, defense counsel had approved the disputed language.[24] The trial court specifically required "counsel to confirm on the record, that the State takes no exception to the instructions . . . nor does the Defense."[25] Defense counsel did so by affirmatively indicating that they had no objections to the jury instructions.[26] Thus, we held that the manifest injustice exception did not apply because invited error precluded review of the jury instructions.[27]
¶ 20 In State v. King,[28] defense counsel made an affirmative representation to the trial court, both during and after voir dire, that he had no objection to the jury panel that was selected.[29] We held that the defendant had failed to preserve the issue of whether the jury was impartial for appellate review and stated that the defendant must demonstrate plain error.[30] We recognized, however, that defense counsel's affirmative representations to the court that he had no objections to the jury panel implicated the invited error doctrine.[31] But we declined to apply invited error only because the State had failed to raise the issue in its brief.[32]
¶ 21 In State v. Dunn,[33] the defendant argued that "the trial court committed reversible error when it reversed its pretrial ruling and allowed questioning about his prior conviction."[34] He argued that "if he had known that the prior conviction was going to be admissible, he would not have taken the stand or, at the very least, he would have deflected the impact of the prior conviction *375 by disclosing it during his case-in-chief."[35] We held that the defendant was precluded from raising this claim of error because of the invited error doctrine.[36]
¶ 22 In Dunn, defense counsel moved to exclude the evidence of the prior conviction, "providing the trial court with citations to the authority on which the court based its pretrial ruling."[37] But "contrary to [the defendant's] position before the trial judge, the law at the time clearly allowed evidence of prior convictions to be admitted for impeachment purposes without any restriction."[38] We concluded that "[defense] counsel's actions in making the motion in limine without informing the trial judge of the controlling law had led the trial court into error."[39] We therefore held that the defendant was "precluded from asserting that the pretrial ruling misled him into taking the stand."[40]
2. Invited Error Has No Application to the Pratts' Untimely Memorandum
¶ 23 We have yet to apply the invited error doctrine in a situation, such as here, where a party files an untimely responsive memorandum concerning an issue in the case. We are disinclined to do so now. In this case, the Pratts did not make an affirmative representation that led the court into error. The Pratts' late response in addressing the issue of judicial privilege is not enough on its own to fall within the realm of invited error. As the above cases illustrate, invited error generally occurs in a more affirmative manner, such as where counsel stipulates to the court's instruction, states directly that there is no objection to a specific ruling of the court, or provides the court with erroneous authority upon which the court relies. In this case, the Pratts did not, by statement or act, affirmatively represent to the district court that they had no objection to application of the judicial proceeding privilege and, thereby, cannot be said to have led the court into committing any alleged error.[41]
¶ 24 Ultimately, the district court was aware of the judicial privilege argument and resolved the issue in a deliberate manner. While it is true that the district court did not have the benefit of the Pratts' argument, the issue was preserved for appeal when the district court was given notice of the issue (in this case, by the Nelsons) and when the court in response to such notice made a specific ruling on the issue. Regardless of the Pratts' lack of participation in the court's decision-making process, the judicial privilege issue was presented in such a way that the court had an opportunity to rule on that issue; therefore, plain error review does not apply in this case. Accordingly, we now consider the judicial privilege issue on appeal as well as the Pratts' accompanying argument.
II. THE JUDICIAL PROCEEDING PRIVILEGE AND EXCESSIVE PUBLICATION
¶ 25 We must now determine whether the judicial proceeding privilege applies to the statements the Nelsons made during the press conference, which include the Kingston Complaint, the Prepared Statement, and any other oral statements. And if the privilege generally applies, we must then determine whether the Nelsons lost the privilege through excessive publication of their various statements.
A. The Judicial Proceeding Privilege Clearly Applies to the Kingston Complaint, but as to the Prepared Statement and Other Oral Statements Made by the Nelsons It Is Doubtful the Privilege Applies
¶ 26 As to the law of defamation, we have stated that
*376 false and defamatory statements are not actionable if they are protected by a legal privilege. A number of legal privileges are recognized in circumstances where communication must be wholly open, frank, and unchilled by the possibility of a defamation action. This is so even though the reputation of a person may be harmed by such statements.[42]
¶ 27 The common law judicial proceeding privilege immunizes certain statements that are made during a judicial proceeding from defamation claims. The privilege is "intended to promote the integrity of the adjudicatory proceeding and its truth finding processes."[43] It does so by facilitating the "free and open expression by all participants . . . [that] will only occur if they are not inhibited by the risk of subsequent defamation suits."[44]
¶ 28 In order to establish absolute immunity under the judicial proceeding privilege, the "statements must be (1) `made during or in the course of a judicial proceeding'; (2) `have some reference to the subject matter of the proceeding'; and (3) be `made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.'"[45]
¶ 29 We have held that the first requirement, that a statement must be made "during or in the course of a judicial proceeding," is interpreted broadly.[46] Indeed, "[t]he privilege applies to every step in the proceeding until final disposition,"[47] including certain pretrial[48] and posttrial statements.[49] "[W]e have indicated that a statement may qualify as made during or in the course of a judicial proceeding [even] if the communication is preliminary to a proposed judicial proceeding."[50] Thus, "[t]he judicial proceeding privilege extends to statements made prior to the filing of a lawsuit because it is intended to encourage reasonable efforts to resolve disputes prior to the filing of a complaint."[51]
¶ 30 As to the second requirement, a statement must have "some relationship to the cause or subject matter involved," although it "need not be relevant or pertinent to the judicial proceeding from an evidentiary point of view for the privilege to apply."[52] Thus, if doubt as to relevancy exists, it "should be resolved in favor of the statement having reference to the subject matter of the proceeding."[53]
¶ 31 The third requirement is relatively straightforward. The statement must be made by someone acting, with respect to the case at hand, in the capacity of judge, juror, witness, litigant, or counsel.
¶ 32 The Kingston Complaint was, at the time it was filed, clearly protected by the judicial proceeding privilege. It inarguably qualified as a statement made in the course of a judicial proceeding that had reference to the subject matter of the proceeding and was made by a litigant or counsel. Thus all three *377 requirements for application of the judicial proceeding privilege were met with respect to the Complaint. While the Prepared Statement and other oral statements did have reference to the subject matter of the proceeding and were made by a litigant or counsel, it is doubtful statements made at a press conference qualify as having been made in the course of a judicial proceeding, even given our broad interpretation of that requirement. Regardless, even were we to assume that the Prepared Statement and other oral statements were otherwise privileged under the judicial proceeding privilege, that privileged status was lost through excessive publication.
B. Any Privilege that the Nelsons' Statements May Have Otherwise Enjoyed Was Lost Through Excessive Publication
¶ 33 A party may lose the absolute immunity afforded by the judicial proceeding privilege through "excessive publication." We have stated, "Case law generally holds that communications that are otherwise privileged lose their privilege if the statement is excessively published, that is, published to more persons than the scope of the privilege requires to effectuate its purpose."[54] Indeed, a publication is excessive if the statement
was published to more persons than necessary to resolve the dispute or further the objectives of the proposed litigation, in other words, if the [statement] was published to those who did not have a legitimate role in resolving the dispute, or if it was published to persons who did not have an adequate legal interest in the outcome of the proposed litigation.[55]
Thus, the purpose of the excessive publication rule "is to prevent abuse of the privilege by publication of defamatory statements to persons who have no connection to the judicial proceeding."[56]
¶ 34 When deciding if a statement was excessively published, we look to the "overall circumstances" of the publication and determine if the purpose of the judicial proceeding privilege, which is to "promote candid and honest communication between the parties and their counsel in order to resolve disputes," is furthered by the statement's publication.[57]
¶ 35 We hold that the Nelsons' statements made during the press conference, including the Kingston Complaint, the Prepared Statement, and other oral statements, lost through excessive publication any privileged status they may have otherwise enjoyed. In explaining the basis for this holding, we will first discuss our caselaw and the application of the excessive publication rule as it relates to press conferences and statements made or distributed by parties to the media.
1. Utah Cases Discussing the Application of the Excessive Publication Rule
¶ 36 In the case before us, the Nelsons organized a press conference to discuss publicly their lawsuit filed against various alleged members and associations of the Kingston Order. During the press conference, the Nelsons made several statements to reporters concerning the nature and purposes of their lawsuit. Additionally, the Nelsons distributed the Kingston Complaint and the Prepared Statement to several reporters, and those statements were later disseminated through various media outlets, including newspaper, television, and the internet. Although no Utah case discusses the application of the excessive publication rule with respect to press conferences and the media, several cases illustrate that when looking at excessive publication we consider (1) whether the recipients of the publication have a sufficient connection to the judicial proceeding and (2) whether the purpose of the judicial proceeding privilege would be furthered by protecting the publication. If the recipients of the publication are not sufficiently connected to the judicial proceeding and the purpose of the privilege would not be furthered by protecting the publication, then the *378 statements in question lose their absolute immunity and privileged status.
¶ 37 In Krouse v. Bower,[58] we held that a demand letter was not excessively published even though it was sent to people who at the time were not directly involved in a lawsuit.[59] In that case, counsel for two condominium owners sent a demand letter to counsel for the condominium owners' association.[60] The letter indicated that courtesy copies of the letter were to be delivered to the individual condominium owners within the association, and, indeed, these copies were later distributed to the other owners.[61] Although the plaintiffs, who were mentioned in the letter, later sued for defamation, the trial court held that the letter fell within the judicial proceeding privilege.[62]
¶ 38 On appeal, we affirmed the privileged status of the demand letter and reviewed the issue of whether it was excessively published.[63] In doing so, we expressed concern that delivery of the letter directly to the individual owners, rather than to just their counsel, was not "necessary to effectuate the purpose of pursuing settlement," which was the alleged purpose of the letter.[64] Nevertheless, we held that the individual owners had a "clear legal interest" in the letter's subject matter.[65] We noted the overall circumstances of the letter's publication and pointed out that the association members were clients of the attorney who was the addressed recipient of the letter.[66] Further, we noted that the owners' association was a potential, and later named, party to the threatened lawsuit.[67] In light of these facts, we held that the individual owners would have likely received a copy of the letter or known of its substance and existence.[68] Because the purpose of the judicial proceeding privilege is to encourage "open, forthright discussion" and to promote "honest communication between the parties and their counsel in order to resolve disputes," we concluded that publication of the letter to the individual owners was not excessive.[69]
¶ 39 In DeBry v. Godbe,[70] we held that a letter sent to six people discussing out-of-court occurrences was not excessively published.[71] The letter was sent by Ms. Godbe, Mr. DeBry's counsel during his divorce proceedings.[72] In that case, we first held that the judicial proceeding privilege applied to the letter.[73] Next, we determined which of the people who received the letter had a sufficient connection to the judicial proceedings.[74] We held that four of the people, including the trial judge, Mr. DeBry, Ms. Godbe's co-counsel, and Ms. DeBry's counsel, were all "directly involved in the judicial proceeding."[75] We noted that the letter was not published to a fifth person because she never received or read it.[76] Finally, we held that the sixth person, Ms. Godbe's own attorney, was sufficiently connected to the judicial proceeding because he had originally advised her to send the letter and therefore had a "legally justified reason for receiving the letter."[77] Accordingly, we held that Ms. Godbe's letter did not lose the judicial proceeding *379 privilege through excessive publication.[78]
¶ 40 Consistent with these cases, to determine whether the Nelsons' statements were excessively published, we must decide whether the reporters and media outlets to whom the Nelsons published their statements had a sufficient connection to the judicial proceedings. Then we must determine whether the purpose of the judicial proceeding privilege would be furthered by protecting such publication to the press.
2. The Press Generally Lack a Sufficient Connection to Judicial Proceedings
¶ 41 In Buckley v. Fitzsimmons,[79] the United States Supreme Court held that Fitzsimmons, a prosecutor who allegedly made defamatory statements in a pretrial press conference, was not entitled to absolute immunity.[80] The Court noted that while "the speech of a counsel is privileged by the occasion on which it is spoken," "[c]omments to the media have no functional tie to the judicial process just because they are made by a prosecutor."[81]
¶ 42 Although the Court never discusses an excessive publication exception to the judicial proceeding privilege, it appears that, in Buckley, the Court was of the view that, at the very least, statements made by counsel to the press concerning a case are not per se covered by an absolute privilege. And while Buckley arose in a criminal context and concerned state officials, the Court stated that "prosecutors, like all attorneys, were entitled to absolute immunity from defamation liability for statements made during the course of judicial proceedings and relevant to them, [while] most statements made out of court received only good-faith immunity."[82] It appears that the Court was unwilling to provide the privilege to statements made to people or in places that have no functional or legal tie to the judicial proceedings.[83]
¶ 43 In Green Acres Trust v. London,[84] the Arizona Supreme Court determined that the press generally lack a "relationship to the proposed or pending judicial proceeding," and therefore the judicial proceeding privilege did not apply to statements made by counsel during a press conference.[85] In that case, the attorney defendants were preparing to file a class action lawsuit against Green Acres on behalf of various clients.[86] The *380 attorneys met to review the draft of their complaint, and one of the attorneys invited a reporter to their law offices to learn about the basis for the class action.[87] The attorneys gave the reporter a draft of the complaint, and at least one attorney discussed the case with her.[88] Based in part on information obtained from the draft of the complaint and the conversation held with the attorneys, the reporter wrote an article describing the grounds of the class action suit and unfavorably characterizing the manner in which Green Acres did business.[89]
¶ 44 Green Acres sued the attorneys for defamation regarding the statements made and distributed to the reporter.[90] The attorneys claimed that there was an absolute privilege for statements made to the press by attorneys concerning pending litigation.[91] But the Arizona Supreme Court held that the reporter "had no relation to the proposed class action" and "played no role in the actual litigation other than that of a concerned citizen."[92] The court concluded that because the reporter "lacked a sufficient connection to the proposed proceedings, public policy would be ill served if [the court] immunized the communications made to the reporter by the lawyer defendants."[93] Moreover, "[t]he press conference simply did not enhance the judicial function and no privileged occasion arose."[94]
¶ 45 In Asay v. Hallmark Cards, Inc.,[95] the Eighth Circuit Court of Appeals also declined to extend the judicial proceeding privilege to statements, including a previously filed complaint, made and distributed to the media.[96] The court stated, "In determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published. Publication to the news media is not ordinarily sufficiently related to a judicial proceeding to constitute a privileged occasion."[97]
¶ 46 We are inclined to agree with the Arizona Supreme Court and the Eighth Circuit in this matter. We hold that the press generally lack a connection to judicial proceedings sufficient to warrant an extension of the judicial privilege to statements made by parties to the press. Thus, in this case, the Nelsons' statements, when made to the press, were not protected by the judicial proceeding privilege. Their statements were published to more persons than necessary to resolve the dispute or further the objectives of the proposed litigation. The press had neither any relation to the pending litigation nor any clear legal interest in the outcome of the case. At most, the reporters at the press conference were acting only in the capacity of concerned citizens. Further, the reporters played no legitimate role in resolving the dispute between the parties. As a result, the press in this case clearly lacked a sufficient connection to the pending proceedings.
3. The Purpose of the Judicial Proceeding Privilege Is Not Furthered by Protecting Statements Made to the Press
¶ 47 Extending the judicial proceeding privilege to statements made or distributed during a press conference would ill-serve the public policy underlying the privilege. In Asay, the Eighth Circuit stated that
[a]llowing defamation suits for communications to the news media will not generally inhibit parties or their attorneys from fully investigating their claims or completely detailing them for the court or other parties. Also, the important factor of judicial control is absent. The salutary policy of allowing freedom of communication in judicial *381 proceedings does not warrant or countenance the dissemination and distribution of defamatory accusations outside of the judicial proceeding. No public purpose is served by allowing a person to unqualifiedly make libelous or defamatory statements about another. . . . The scope of the privilege is restricted to communications such as those made between an attorney and client, or in the examination of witnesses by counsel, or in statements made by counsel to the court or jury. Thus, while a defamatory pleading is privileged, that pleading cannot be a predicate for dissemination of the defamatory matter to the public or third parties not connected with the judicial proceeding. Otherwise, to cause great harm and mischief a person need only file false and defamatory statements as judicial pleadings and then proceed to republish the defamation at will under the cloak of immunity.[98]
¶ 48 We have also stated that the purpose of the judicial proceeding privilege is "intended to promote the integrity of the adjudicatory proceeding and its truth finding processes."[99] Moreover, the privilege is meant to encourage "open, forthright discussion" and to promote "honest communication between the parties and their counsel in order to resolve disputes."[100] Statements made and distributed to the press concerning pending or ongoing litigation do little, if anything, to promote the truth finding process in a judicial proceeding. Further, statements made to the press do not generally encourage open and honest discussion between the parties and their counsel in order to resolve disputes; indeed, such statements often do just the opposite. Certainly, parties to a proceeding, whether attorneys, litigants, or witnesses, are free to speak their minds without fear of reprisal in the form of a defamation suit so long as their statements concern the subject matter involved and are made during or in the course of the judicial proceeding. And we generally have interpreted "during or in the course of a judicial proceeding" broadly to include certain statements made before, during, or even after the proceeding. But we are disinclined to extend this broad requirement to statements made directly to the press, especially in a case such as this where a party called a press conference and distributed various statements to the media for widespread dissemination.
III. GROUP DEFAMATION
¶ 49 We now turn to whether the group defamation rule precludes the Pratts from pursuing their defamation claim. Generally, the group defamation rule precludes defamation suits based solely on statements made referring to groups or classes of people. We hold in this case that the Pratts, who were specifically named in the Kingston Complaint, are not precluded from pursuing their defamation claim.
A. The Kingston Complaint May Be Considered for Defamation Purposes
¶ 50 Because the Kingston Complaint lost its privileged status through excessive publication, it may properly be considered for alleged defamation alongside the other statements made by the Nelsons. Thus, the Nelsons' combined statements made and distributed at the press conference may provide a sufficient basis for a defamation claim.
B. The Nelsons' Statements Specifically Named the Pratts
¶ 51 In order to establish a claim for defamation, a party "must show that [the] defendants published the statements concerning [the party], that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage."[101]*382 We must determine whether the Nelsons "published statements concerning" the Pratts.
¶ 52 Before defamatory statements may be regarded as actionable, a party must show that the statements "refer to some ascertained or ascertainable person."[102] A party may show this "by directly being named, or so intended from the extrinsic facts and circumstances."[103] Where defamatory statements appear to apply "to a particular class of individuals, and are not specifically defamatory of any particular member of the class, an action can [still] be maintained by any individual of the class who may be able to show the words referred to himself."[104] Ultimately, a party must "satisfy the jury that the words referred especially to himself."[105]
¶ 53 On the other hand, a party may defend itself from allegations of defamation with the group defamation rule. If "the defamatory matter has no special application and is so general that no individual damages can be presumed, and the class referred to is so numerous that great vexation and oppression might grow out of a multiplicity of suits, no private suit can be maintained."[106] Furthermore, section 564(a) of the Restatement (Second) of Torts provides the following:
One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if, (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.
¶ 54 We agree with the court of appeals that "without the aid of the Kingston Complaint, the [Nelsons'] statements at the press conference cannot be reasonably understood to refer, with any particularity, to the Pratts."[107] Indeed, "[w]ithout the Kingston Complaint, the Pratts can only point to the [Nelsons'] group references and argue that such statements defame them as individuals."[108] "[N]one of [the Nelsons'] allegedly defamatory statements ever directly mentioned the Pratts by name and, aside from the Kingston Complaint, none of the extrinsic facts and circumstances demonstrated that the statements were intended to specifically refer to the Pratts."[109] The Nelsons' statements "merely referred generally to large groups of people [such as] `the Kingston Polygamist Family,' `leaders of the Kingston Organization,'"[110] and "the people we are bringing this lawsuit against."
¶ 55 We also acknowledge, as the court of appeals noted, that "under the right circumstances the references to a group such as `the Kingston Polygamist Family' might reasonably be understood to refer to an individual surnamed Kingston."[111] "In fact, if the Pratts were widely known as members of `the Kingston Polygamist Family,' the Pratts might very well be able to maintain an action on such statements, even without referring to the Kingston Complaint."[112] But in this case, as the court determined, the statements made outside of the Kingston Complaint, including the Prepared Statement, "do not lend *383 themselves to any reasonable understanding that they have personal application to the Pratts."[113]
¶ 56 Yet the Kingston Complaint, which we may now consider for defamation purposes, specifically named the Pratts on two occasions. In its opening caption, the Kingston Complaint named the Pratts among nearly 400 other defendants. Further, the Kingston Complaint named the Pratts in a list with 240 other defendants known as "Order Individuals," and referred to these "Order Individuals" as "Order Members." The Kingston Complaint then accuses these "Order Members" of negligence and assisting, encouraging, conspiring, or knowing of and failing to prevent or report the abuses alleged to have been committed by Mary Ann's father and uncle. There is no question that the Kingston Complaint specifically refers to ascertainable persons, including the Pratts. Additionally, it is now arguable that the Nelsons' other statements, in light of the Kingston Complaint and given the extrinsic circumstances, may have also made reference to the Pratts.
C. The Size of the Group Referred to Is Irrelevant if Individuals Within that Group Are Specifically Identified by Name
¶ 57 The Nelsons argue that, under the group defamation rule, the large size of the groups referenced in their statements, including in the Kingston Complaint, precludes a defamation claim.[114] We disagree. In the Kingston Complaint the Pratts were specifically named. As a result, even the Nelsons' other statements might be viewed as referring to the Pratts as well. When statements explicitly refer to individuals by name, regardless of whether the individuals are part of a general group or larger listing of names, a party cannot rely on the group defamation rule as a defense. For example, if a party generally refers to a group of people that happens to include 400 individuals, then the group defamation rule may have application; but to the extent that a party identifies people in that group by their individual names, the group defamation rule no longer applies.
CONCLUSION
¶ 58 We hold that appellate review of the Pratts' judicial privilege argument is not precluded by the invited error doctrine. We also hold that the Nelsons' statements lost through excessive publication any immunity they may have otherwise enjoyed under the judicial proceeding privilege. Finally, we hold that the group defamation rule does not preclude the Pratts' defamation claim. Therefore, we remand to the district court for further consideration of the Pratts' defamation claim.
¶ 59 Chief Justice DURHAM, Associate Chief Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Justice DURRANT's opinion.
NOTES
[1] She is currently known as Mary Ann Nichols.
[2] Mary Ann's Prepared Statement read as follows:
My name is Mary Ann and I was raised in the Kingston Polygamist Family. I escaped when I was 16 years old. I am pursuing this lawsuit with the hope that other young girls and boys in the same position that I was in will see that the leaders of the Kingston Organization are not above the law, even though they tell us that they are, that they can be punished for what they do to us, and that we can escape and seek recovery for the harm that was done to us. I also hope that the people that we are bringing this lawsuit against will realize the harm they have caused and continue to cause, and that they will change their ways.
[3] Pratt v. Nelson, 2005 UT App 541, ¶ 24, 127 P.3d 1256.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Hansen v. Eyre, 2005 UT 29, ¶ 8, 116 P.3d 290 (internal quotation marks omitted).
[9] Dowling v. Bullen, 2004 UT 50, ¶ 7, 94 P.3d 915.
[10] Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968 (citing Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998)).
[11] Id. (quoting Badger, 966 P.2d at 847).
[12] State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (internal quotation marks omitted).
[13] Id. (quoting State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346).
[14] State v. Powell, 2007 UT 9, ¶ 11, 154 P.3d 788; see State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 ("When a party raises an issue on appeal without having properly preserved the issue below, we require that the party articulate an appropriate justification for appellate review, specifically, the party must argue either plain error or exceptional circumstance." (internal quotation marks and citations omitted)); see also State v. Casey, 2003 UT 55, ¶ 40, 82 P.3d 1106 (stating that "in most circumstances the term `manifest injustice' is synonymous with the `plain error' standard expressly provided in Utah Rule of Evidence 103(d)" (internal quotation marks omitted)).
[15] Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106 (internal quotation marks omitted).
[16] Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (alterations in original)); accord State v. Pinder, 2005 UT 15, ¶ 62, 114 P.3d 551; State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742.
[17] Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (internal quotation marks and citation omitted).
[18] Id. (quoting Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d 742); see State v. King, 2006 UT 3, ¶ 13, 131 P.3d 202 ("This rule is designed to . . . inhibit a defendant from foregoing . . . an objection with the strategy of enhancing the defendant's chances of acquittal and then, if that strategy fails, . . . claiming on appeal that the court should reverse." (internal quotation marks omitted)).
[19] King, 2006 UT 3, ¶ 13, 131 P.3d 202 (internal quotation marks omitted).
[20] Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (internal quotation marks and citation omitted).
[21] Id. ¶ 16; see State v. Medina, 738 P.2d 1021, 1023 (Utah 1987) ("[T]he fact remains that counsel consciously chose not to assert any objection that might have been raised and affirmatively led the trial court to believe that there was nothing wrong with the instruction.").
[22] 2003 UT 22, 70 P.3d 111.
[23] Id. ¶ 55.
[24] Id.
[25] Id. (internal quotation marks omitted).
[26] Id.
[27] Id. ¶ 54.
[28] 2006 UT 3, 131 P.3d 202.
[29] Id. ¶¶ 7-8.
[30] Id. ¶ 20.
[31] Id. ¶ 20 n. 2.
[32] Id.; see State v. Casey, 2003 UT 55, ¶ 39 n. 10, 82 P.3d 1106 (noting that while the invited error doctrine "may preclude application of the plain error analysis," the court will refuse to consider invited error when "neither party raised this question below or in their briefs or at oral argument").
The Pratts argue that the Nelsons did not raise the invited error issue before the court of appeals and, therefore, according to the Pratts, the court of appeals improperly addressed the issue sua sponte. But the Nelsons argued "that because of the Pratts' failure to timely file their memorandum presenting their legal arguments to the trial court, [the Pratts] cannot now ask [the court of appeals] to consider their judicial privilege arguments for the first time on appeal." Pratt v. Nelson, 2005 UT App 541, ¶ 15, 127 P.3d 1256. While the Nelsons may not have specifically called this an invited error argument, the court of appeals could properly deem it as such. As a result, the issue of invited error is properly before us.
[33] 850 P.2d 1201 (Utah 1993).
[34] Id. at 1220.
[35] Id.
[36] Id. at 1221.
[37] Id. at 1220-21.
[38] Id. at 1221.
[39] Id.
[40] Id.
[41] One certain consequence of filing the late memorandum is that the transcript attached to the memorandum of the press conference was not included in the record and therefore will not be considered by us in this appeal.
[42] DeBry v. Godbe, 1999 UT 111, ¶ 10, 992 P.2d 979.
[43] Id.
[44] Allen v. Ortez, 802 P.2d 1307, 1311 (Utah 1990).
[45] DeBry, 1999 UT 111, ¶ 11, 992 P.2d 979 (quoting Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997)).
[46] Id. ¶ 14.
[47] Id. (internal quotation marks omitted).
[48] See Beezley v. Hansen, 4 Utah 2d 64, 286 P.2d 1057, 1058 (1955) ("The publication of defamatory matter by an attorney is protected not only when made in the institution of the proceedings or in the conduct of litigation before a judicial tribunal, but in conferences and other communications preliminary thereto. The institution of a judicial proceeding includes all pleadings and affidavits necessary to set the judicial machinery in motion." (quoting Restatement (Second) of Torts § 586 (1977))).
[49] See DeBry, 1999 UT 111, ¶ 14, 992 P.2d 979 (stating that "[n]umerous types of rulings and events that occur post-trial can affect the final disposition of a case" and thus the privilege may cover such statements).
[50] Krouse v. Bower, 2001 UT 28, ¶ 9, 20 P.3d 895 (citing DeBry, 1999 UT 111, ¶¶ 12-14, 992 P.2d 979).
[51] Id. ¶ 10.
[52] DeBry, 1999 UT 111, ¶ 16, 992 P.2d 979 (internal quotation marks and citation omitted).
[53] Id.
[54] Id. ¶ 21.
[55] Krouse, 2001 UT 28, ¶ 15, 20 P.3d 895.
[56] Id.
[57] Id. ¶¶ 15, 18.
[58] 2001 UT 28, 20 P.3d 895.
[59] Id. ¶¶ 16-19.
[60] Id. ¶ 3.
[61] Id.
[62] Id. ¶¶ 4-5.
[63] Id. ¶ 1.
[64] Id. ¶ 16.
[65] Id. ¶ 17.
[66] Id.
[67] Id.
[68] Id.
[69] Id. ¶ 18.
[70] 1999 UT 111, 992 P.2d 979.
[71] Id. ¶ ¶ 22-24.
[72] Id. ¶ 1.
[73] Id. ¶ ¶ 11-20.
[74] Id. ¶ ¶ 22-24.
[75] Id. ¶ 22.
[76] Id. ¶ 23.
[77] Id. ¶ 24 (internal quotation marks omitted).
[78] Id. ¶ 22.
[79] 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993).
[80] Id. at 277, 113 S. Ct. 2606.
[81] Id.
[82] Id. (emphasis added). Further, the Court added in a footnote that
[absolute immunity] does not apply to or include any publication of defamatory matter before the commencement, or after the termination of the judicial proceeding (unless such publication is an act incidental to the proper initiation thereof, or giving legal effect thereto); nor does it apply to or include any publication of defamatory matter to any person other than those to whom, or in any place other than that in which, such publication is required or authorized by law to be made for the proper conduct of the judicial proceedings.
Id. at 277 n. 8, 113 S. Ct. 2606 (internal quotation marks and citation omitted) (alteration in original).
But we have stated, somewhat to the contrary, that certain statements even preliminary to the initiation of a lawsuit may be protected by the judicial proceeding privilege. Krouse v. Bower, 2001 UT 28, ¶ 10, 20 P.3d 895. This is in accord with the Restatement (Second) of Torts section 586 (1977), which states that the privilege includes statements made "preliminary to" or "in the institution of" a judicial proceeding. Comment e to that section states the following:
[The privilege] stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.
[83] See Prosser & Keeton on Torts § 114, 816-20 (5th ed.1984) (stating that "[a]bsolute immunity has been confined to very few situations where there is an obvious policy in favor of permitting complete freedom of expression" such as a judicial proceeding and that, although a judicial proceeding "has not been defined very exactly," it "is clear . . . that statements given to the newspapers concerning the case are no part of a judicial proceeding, and are not absolutely privileged").
[84] 141 Ariz. 609, 688 P.2d 617 (1984).
[85] Id. at 622-23.
[86] Id. at 619.
[87] Id. at 619-20.
[88] Id. at 620.
[89] Id.
[90] Id.
[91] Id. at 622.
[92] Id. at 622-23.
[93] Id. at 623.
[94] Id.
[95] 594 F.2d 692 (8th Cir.1979).
[96] Id. at 699.
[97] Id. at 697; see Penobscot Indian Nation v. Key Bank, 112 F.3d 538, 560-61 (1st Cir.1997) (holding that the judicial proceeding privilege did not apply to statements made at a press conference).
[98] Asay, 594 F.2d at 698 (internal quotation marks and citations omitted).
[99] DeBry v. Godbe, 1999 UT 111, ¶ 10, 992 P.2d 979.
[100] Krouse v. Bower, 2001 UT 28, ¶ 18, 20 P.3d 895.
[101] West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994).
[102] Lynch v. Standard Publ'g Co., 51 Utah 322, 170 P. 770, 773 (1918).
[103] Id.
[104] Id. (explaining Fenstermaker v. Tribune Publ'g Co., 12 Utah 439, 43 P. 112 (Terr.1895)).
[105] Fenstermaker, 43 P. at 114.
[106] Lynch, 170 P. at 774 (internal quotation marks and citation omitted).
[107] Pratt v. Nelson, 2005 UT App 541, ¶ 21, 127 P.3d 1256.
[108] Id. ¶ 22.
[109] Id. ¶ 19 n. 8.
[110] Id.
[111] Id. ¶ 22.
[112] Id. In Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla.1962), the Oklahoma Supreme Court held that a single member of a football team consisting of "sixty or seventy members" could maintain a defamation claim even though he was not specifically mentioned. Id. at 47, 52. The court noted that the plaintiff was "well known and identified in connection with the group." Id. at 51. Moreover, the plaintiff had "sufficiently established his identity as one of those libeled by the publication." Id. at 52.
[113] Pratt, 2005 UT App 541, ¶ 23, 127 P.3d 1256.
[114] The Nelsons cite 50 Am.Jur.2d Libel and Slander § 349 (2006), where the group defamation rule is reiterated in a manner similar to the Restatement version. Section 349 also specifically discusses group size, citing a case from California and stating the following:
[I]t has been said that when statements concern large groupsin general any group numbering over 25 membersthe individual members of that group cannot show that the statements were "of and concerning them." This rule embodies two important public policies: (1) where the group referred to is large, the courts presume that no reasonable reader would take the statements as literally applying to each member; and (2) the limitation on liability safeguards freedom of speech by effecting a sound compromise between the conflicting interests involved in libel cases.
But in Fawcett, the Oklahoma Supreme Court held that under the group defamation rule, there is "no substantial reason why size alone should be conclusive." 377 P.2d at 51. Rather, the court stated that "the primary consideration would properly seem to be whether the plaintiff was in fact defamed, although not specifically designated." Id. at 52 (internal quotation marks and citation omitted). We agree.
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01-03-2023
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11-01-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260380/
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178 Cal.App.4th 1510 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
JACOB TOWNLEY HERNANDEZ, Defendant and Appellant.
No. H031992.
Court of Appeals of California, Sixth District.
November 9, 2009.
*1514 Marc J. Zilversmit for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ELIA, J.
After a jury trial defendant Jacob Townley Hernandez (Townley) was convicted of premeditated attempted murder, in violation of Penal Code sections 187, subdivision (a), and 664. The jury also found true the allegations that Townley had personally used a gun and had personally inflicted great bodily injury in committing the crime. (Pen. Code, § 12022.53, subd. (c); § 12022.7, subd. (a).) On appeal, he raises numerous issues bearing on his right to consult with counsel, admission of statements made by witnesses in police interviews, prosecutor misconduct, improper judicial *1515 comments, admission of gang evidence, and jury instructions. He further challenges the denial of his pretrial motion to suppress evidence obtained as a result of his detention. On July 23, 2009, this court filed an unpublished opinion affirming the judgment. On August 14, 2009, we granted Townley's petition for rehearing to give more attention to a gag order that prevented defense counsel from discussing the contents of two declarations by witnesses with Townley. Upon further review, for the reasons stated below, we will reverse the judgment.[1]
I. BACKGROUND
Seventeen-year-old Townley was accused by information with attempted murder, committed with three accomplices: 18-year-old Jose Ruben Rocha, 16-year-old Jesse Carranco, and 18-year-old Noe Flores. The charges arose from the shooting of Javier Zurita Lazaro around 9:00 p.m. on February 17, 2006. In a telephone call about 7:00 p.m. that night, Townley asked Flores to "do a ride." Flores drove his 1992 white Honda Accord to pick up Townley and his girlfriend, Amanda Johnston, in Santa Cruz. Once in the car, Townley showed Flores a small black handgun, which Flores handled and returned to Townley.
Townley directed Flores to drive to Watsonville, where they picked up Carranco (known as "Little Huero") and Rocha (known as "Listo"), whom Flores had not met before. Townley was wearing People's exhibit No. 23, a red and black plaid flannel jacket, which Johnston had given him as a gift. Carranco wore a red hooded sweatshirt; he had four dots tattooed on his knuckles, signifying his association with the Norteno gang. Flores wore black sweatpants, a white T-shirt, gloves, and a black zip-up hooded sweatshirt. Rocha wore a black flannel jacket with white in it.
The group then drove back to Santa Cruz, dropping Johnston off before heading downtown. They went to an apartment on Harper Street where Anthony Gonzalez lived. About 20 minutes later, the four drove toward the Ocean Terrace apartments, located at the corner of Merrill Street and 17th Avenue in an area known as Sureno gang territory. As they were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk across the street, walking back to his apartment at the Ocean Terrace complex. Lazaro, aged 29, was not associated with any gang, but the sweatshirt he wore was blue, the color associated with the Surenos. Carranco told Flores in a "[k]ind of urgent" voice to turn around and pull over, and Flores did so. Grabbing a T-ball bat that Flores kept in the front passenger area, Carranco jumped out of *1516 the car, along with Townley and Rocha. Flores waited in the driver's seat with the engine running. He heard what sounded like firecrackers; then the three others ran back to the car and Carranco told him "urgently" to go. Flores drove away rapidly with his passengers and followed Carranco's directions back to Gonzalez's apartment.
Lazaro testified that as he was walking back to his apartment he heard three or four voices from inside Flores's car, and then someone yelled, "Come here." He thought it was directed at someone else, so he continued walking without turning around. Just as he reached the parking lot of the apartment complex, he saw the group get out of the car and run across the street toward him. They asked him whether he was Norteno or Sureno. At that point Lazaro was frightened and ran, until he felt something push him to the ground. Lazaro received five gunshot wounds, including a fractured rib and a bruised lung. Two bullets remained in his body.
Lazaro did not see who shot him, but Ginger Weisel, Lazaro's neighbor, was in the parking lot when Lazaro walked away from the group. She heard them call out "fucking scrap" and ask where Lazaro was from before seeing one of them shoot Lazaro six to eight times. Lazaro fell after about four shots. Weisel recalled that the shooter was about five feet nine inches tall[2] and wore a red and black plaid Pendleton shirt. Weisel called 911 from her apartment and returned to help Lazaro.
David Bacon was driving on 17th Avenue when he saw Flores's car parked in a no-parking zone. He saw what appeared to be two Latino males of high school age, about five feet 10 inches tall. Seconds later he heard snapping sounds and saw one of the group standing in a "classic shooting position," holding a gun. He heard a total of five or six shots from what appeared to be a small-caliber gun. Bacon had the impression that the shooter wore a plaid jacket, which could have been People's exhibit No. 22. The second man appeared to be a lookout. Bacon then saw two people run back to the car, which sped away. He parked his car, called 911, and returned to help Lazaro, who was lying on the ground with two women tending to him. Emergency personnel arrived within a minute after the last shot.
Susan Randolph stepped outside her home on 17th Avenue when she heard the gunshots. She described the three as young Latinos between 16 and 20 years old, ranging from five feet six inches to five feet nine inches.
Julie Dufresne was driving on 17th Avenue with Jeanne Taylor when she heard popping noises that sounded like fireworks, followed immediately by *1517 three people running across the street in front of her car. They were all about her height, five feet nine or 10 inches, or probably shorter, and they appeared to be between 15 and 20 years old. One wore a thin, red and black plaid flannel jacket.
Taylor thought there were five popping sounds, followed by the "three young men" running across the street in front of the car. One of them was less than five feet five inches and wore what looked like a plaid Pendleton shirt in black and red. He appeared to be staggering as if he were drunk or "having difficulty with his coordination." The other two were taller; one wore a white and black plaid shirt, People's exhibit No. 22, and the other a hooded sweatshirt. When they reached the white car, one went to the backseat on the driver's side, and the other two went around to the passenger side. Taylor thought that People's exhibit No. 23 looked like the red and black shirt the "shorter person" had been wearing; Dufresne "couldn't say for sure."
Randi Fritts-Nash was one of the teenagers drinking at the Harper Street apartment. Sitting in Gonzalez's bedroom with five others, she heard a car pull into the parking lot, followed by a couple of knocks at the window. Gonzalez went to the window and then left the room. Before he left, Fritts-Nash heard the anxious voices of two people outside, one of whom said the words "hit" and "scrap."
When Gonzalez reappeared, Townley and the other three were with him. Townley was wearing a red and black plaid jacket, People's exhibit No. 23. Fritts-Nash heard Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley pull a small handgun out of his pocket and wipe off the prints with a blanket. Townley moved the gun several times from one pocket to another, saying, "I need to hide this gun." He also told her he was "looking at 25 to life." Rejecting Fritts-Nash's suggested hiding place, Townley put the gun in his shoe and a small black velvet bag of bullets into his other shoe. Townley told her to cross her fingers for good luck. Fritts-Nash asked him if he had shot someone; his head movement indicated an affirmative answer.
Townley and Carranco were tried together as adults under Welfare and Institutions Code section 707, subdivision (d)(2). On January 25, 2007, the court granted Townley's motion to sever his trial from that of his codefendants. Before trial both Flores and Rocha entered into plea agreements in which the prosecution would reduce the charges in exchange for their declarations under penalty of perjury. Flores thereafter pleaded guilty to assault with a firearm subject to a three-year prison term, and the prosecutor dismissed the attempted murder charge against him. Rocha pleaded guilty to assault with force likely to produce great bodily injury, with an expected *1518 sentence of two years. On the same date that Flores and Rocha entered their pleas, April 17, 2007, the prosecution filed a motion to reconsolidate the cases against Carranco and Townley, which the court subsequently granted on April 26, 2007.
The jury found Townley guilty of attempted premeditated murder and found the People's allegations of firearm use and great bodily injury to be true. (Pen. Code, § 12022.53, subds. (b), (c), (d); § 12022.5, subd. (a); § 12022.7, subd. (a).) On September 12, 2007, he was sentenced to life in prison with the possibility of parole for the attempted murder, with a consecutive term of 25 years to life for the section 12022.53 firearm enhancement.
II. DISCUSSION
A. Issues Related to Witness Declaration
1. Restriction on Attorney-client Discussion of the Flores Declaration
The guilty pleas in Flores's and Rocha's cases were taken in closed proceedings and the reporter's transcripts were sealed by trial court order.[3] At Flores's plea hearing the prosecutor stated that Flores would be permitted to serve his sentence out of state "because he was previously stabbed in the jail. There are very serious concerns about his physical well-being."
Rocha's declaration stated that he understood that he had "to tell the judge in open court and under oath what I myself did on February 17, 2006." In Flores's declaration, on the other hand, he stated: "I understand that I have to tell the judge in open court and under oath that the contents of this declaration are true." He also stated, "I do understand that I may be called as a witness in any hearing related to the events that transpired on February 17, 2006."
At each change-of-plea hearing, the court ordered the declaration to be filed under seal, to be opened only if the prosecution called him to testify about any of the matters covered in the declaration. Defense counsel were *1519 permitted to look at the document, but they were "prohibited from discussing the contents or the existence of the document with their client or any other person." Defense counsel also were not permitted to have a copy of the declarations. As the Attorney General notes, Flores's counsel emphasized that, even if the declaration was opened under those circumstances, it "will not ultimately be part of the paperwork that follows Mr. Flores to his prison commitment." Thereafter, the prosecution provided a written copy to the defense counsel.[4]
Counsel for Townley and Carranco were unsuccessful in moving to withdraw the order not to discuss the contents or existence of the document with their clients. At a hearing from which the defendants were excluded, the court reasoned that it would be improper to rescind the order without Flores's and Rocha's counsel being present. The court did advise defense counsel that if the witnesses testified inconsistently with their statements, then the sealing order "would be undone" and counsel would be free to cross-examine them with the declarations. When the prosecutor asserted that defense counsel had a right to use the documents to cross-examine and impeach them, the court stated, "That's going a little beyond what we put on the record, those plea agreements. The agreement was for their protection." The court agreed with the prosecutor's statement, "So once they take the stand, the order would necessarily disappear because it doesn't make sense anymore."
Neither Flores nor Rocha was on the prosecutor's list of proposed witnesses filed April 27, 2007. Rocha was not called as a witness at trial. Flores was called as a witness on the second day of trial testimony. At the end of the day, in the jury's absence, his attorney was called into a hearing at which the court explained that, "in order to provide for adequate cross-examination of Mr. Flores ... that Counsel be provided with copies of his statement.... [T]he statement may not be shared with the clients. We've already talked about that." "They're subject to the same nondisclosure to clients, to investigator, to other attorneys[. I]t's only to be used by" defense counsel for purposes of cross-examination. "They have to be returned." Carranco's *1520 counsel asked again to be able to discuss it with his client. The court denied the request, pointing out that counsel had a lengthy statement from Flores to the police. The court added, "Put that in your briefcase and do not share it with Mr. Carranco. Put it in [your] briefcase right now."
Direct examination of Flores resumed two trial days later. He was the sole witness on the fifth day of testimony. During Carranco's cross-examination of Flores, the prosecutor successfully objected to defense counsel's reading the title of the document. Carranco's counsel tried to ask Flores about the requirement that he sign the declaration in order to obtain the three-year sentence; again the prosecutor's objection was sustained, as was a question about Flores's methamphetamine use on the night of the shooting. In the jury's absence, the court explained that it also sustained some of the prosecutor's objections because they were "questions about things that weren't in the document ... suggesting to the jury that we'd intentionally omitted facts. And that's misleading." The court stated that "[t]he document is sealed for protection of Mr. Flores." The examination of Flores concluded on the sixth day of testimony. Eventually the trial court took judicial notice of the fact that the declaration was part of the plea bargain and accordingly instructed the jury.
On appeal, Townley contends that the court's restrictions before trial and during examination of Flores violated Townley's Sixth Amendment right to consult with his attorney. Finding no California authority directly on point, we review federal authority.
(1) Maine v. Moulton (1985) 474 U.S. 159 [88 L.Ed.2d 481, 106 S.Ct. 477] recognized at pages 168 and 169: "The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice. [Fn. omitted.] Embodying `a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself ...' Johnson v. Zerbst [(1938)] 304 U.S. 458, 462-463 [82 L.Ed. 1461, 58 S.Ct. 1019], the right to counsel safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding."
"The special value of the right to the assistance of counsel explains why `[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.'" (United States v. Cronic (1984) 466 U.S. 648, 654 [80 L.Ed.2d 657, 104 S.Ct. 2039], quoting McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [25 L.Ed.2d 763, 90 S.Ct. 1441].)
Courts have recognized that legal assistance can be more effective when attorneys and clients are allowed to confer, consult, and communicate. *1521 Inevitably, there are practical limitations that restrict the opportunities of criminal defendants to consult with their attorneys, including the defendant's custodial status, technological means available, the attorney's other commitments, the availability of courtrooms, and the need for orderly and timely court proceedings. In the context of a request for continuance, the United States Supreme Court has recognized, "Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." (Morris v. Slappy (1983) 461 U.S. 1, 11 [75 L.Ed.2d 610, 103 S.Ct. 1610].) But when the government unjustifiably interferes with attorney-client communication, the result may be determined to be a violation of a criminal defendant's constitutional "right to the assistance of counsel." (Geders v. United States (1976) 425 U.S. 80, 91 [47 L.Ed.2d 592, 96 S.Ct. 1330] (Geders).)
In Perry v. Leeke (1989) 488 U.S. 272 [102 L.Ed.2d 624, 109 S.Ct. 594] (Perry), the United States Supreme Court discussed 20 cases from federal and state courts (but not California) in footnote 2 on page 277 in support of the proposition: "Federal and state courts since Geders have expressed varying views on the constitutionality of orders barring a criminal defendant's access to his or her attorney during a trial recess." (Cf. Annot., Trial court's order that accused and his attorney not communicate during recess in trial as reversible error under Sixth Amendment guaranty of right to counsel (1989) 95 A.L.R. Fed. 601; Annot., Scope and extent, and remedy or sanctions for infringement, of accused's right to communicate with his attorney (1966) 5 A.L.R.3d 1360.)
In Geders, the United States Supreme Court held "that an order preventing petitioner from consulting his counsel `about anything' during a 17-hour overnight recess between his direct-and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment." (Geders, supra, 425 U.S. 80, 91.) In Perry, the United States Supreme Court held "that the Federal Constitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in progress if the judge decides that there is a good reason to interrupt the trial for a few minutes." (Perry, supra, 488 U.S. 272, 284-285.) "[W]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying." (Id. at p. 281.) In Perry, "[a]t the conclusion of his direct testimony, the trial judge declared a 15-minute recess, and, without advance notice to counsel, ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break." (Id. at p. 274.)
California decisions are in accord. People v. Zammora (1944) 66 Cal.App.2d 166 [152 P.2d 180] (Zammora) appears to have been a gang case *1522 of sorts (though not a criminal street gang) involving 22 defendants, 12 of whom were convicted of murder and assault with a deadly weapon. (Id. at pp. 173-174.) On appeal, the defendants asserted "that the right of appellants to defend in person and with counsel was unduly restricted by the seating arrangement of the appellants in the courtroom, which, together with certain rulings of the court, prevented the defendants from consulting with their counsel during the course of the trial or during recess periods." (Id. at p. 226.) The defendants were seated in a group in the courtroom at sufficient distance from the five defense counsel as to be unable to confer except by walking the distance between their locations. (Id. at pp. 227, 234.) The court had ordered that counsel not talk to the defendants during court recesses. (Id. at p. 227.)
(2) The appellate court observed: "To us it seems extremely important that, during the progress of a trial, defendants shall have the opportunity of conveying information to their attorneys during the course of the examination of witnesses. The right to be represented by counsel at all stages of the proceedings, guaranteed by both the federal and state Constitutions, includes the right of conference with the attorney, and such right to confer is at no time more important than during the progress of the trial." (Zammora, supra, 66 Cal.App.2d 166, 234.) "The Constitution primarily guarantees a defendant the right to present his case with the aid of counsel. That does not simply mean the right to have counsel present at the trial, but means that a defendant shall not be hindered or obstructed in having free consultation with his counsel, especially at the critical moment when his alleged guilt is being made the subject of inquiry by a jury sworn to pass thereon." (Id. at pp. 234-235.) The convictions were reversed on this basis. (Id. at pp. 235-236.)
People v. Miller (1960) 185 Cal.App.2d 59 [8 Cal.Rptr. 91] presented a different situation. In that case the trial court denied a defendant's request to confer with his attorney in the middle of the defendant's cross-examination. The appellate court concluded, "The refusal of the trial court to permit the defendant to speak to his counsel in the midst of his cross-examination did not constitute an infringement upon his constitutionally guaranteed right to counsel. This right assures a defendant of every reasonable opportunity to consult with his counsel in the preparation and presentation of his defense [citations], but does not confer upon him the right to obstruct the orderly progress of a trial." (Id. at pp. 77-78.)
The court orders in the cases above involved a total ban, though limited temporally, on attorney-client communication, not what we may call a topical ban. None of the above cases involved an order preventing an attorney from *1523 talking with a defendant about a part of the evidence.[5] The same distinction applies to Jones v. Vacco (2d Cir. 1997) 126 F.3d 408, on which Townley relies. In that case, the trial judge ordered the defendant not to talk to his attorney during an overnight break in his cross-examination. (Id. at p. 411.) The court found Geders controlling. (Id. at p. 416.)
Townley also invokes precedent involving court orders containing topical bans of varying durations. In four cases, trial courts barred defense attorneys from discussing the defendant's testimony, though explicitly or implicitly allowing consultation on other topics. In Mudd v. U.S. (D.C. Cir. 1986) 255 U.S. App.D.C. 78 [798 F.2d 1509] (Mudd), the restriction was imposed during a weekend recess between the defendant's direct and cross-examination. (Id. at p. 1510.) In U.S. v. Cobb (4th Cir. 1990) 905 F.2d 784 (Cobb), the restriction was imposed during a weekend recess in the cross-examination of the defendant. (Id. at p. 786.) In U.S. v. Santos (7th Cir. 2000) 201 F.3d 953 (Santos), the restriction was imposed during an overnight recess between the defendant's direct and cross-examinations. The court also essentially told defense counsel to comply with Perry. (Id. at p. 965.) In U.S. v. Sandoval-Mendoza (9th Cir. 2006) 472 F.3d 645 (Sandoval-Mendoza), the restriction was imposed during two morning recesses, a lunch recess, and an overnight recess in the defendant's cross-examination. (Id. at p. 650.)
In Mudd, which predated Perry, the court concluded that, "While the order in this case was indeed more limited than the one in Geders, the interference with [S]ixth [A]mendment rights was not significantly diminished." (Mudd, supra, 798 F.2d at p. 1512.) "[A]n order such as the one in this case can have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating the court's directive." (Ibid.)
The court in Cobb had "no difficulty in concluding that the trial court's order, although limited to discussions of Cobb's ongoing testimony, effectively denied him access to counsel." (Cobb, supra, 905 F.2d at p. 792.)
Santos concluded, "Perry makes clear, as do the cases before and after it (though some of the `before' cases go too far, by forbidding any limit on discussions between lawyer and client), that while the judge may instruct the lawyer not to coach his client, he may not forbid all `consideration of the defendant's ongoing testimony' during a substantial recess, 488 U.S. at 284, *1524 since that would as a practical matter preclude the assistance of counsel across a range of legitimate legal and tactical questions, such as warning the defendant not to mention excluded evidence." (Santos, supra, 201 F.3d at p. 965.) The appellate court concluded that defense counsel in that case "was given confusing marching orders that may well have inhibited the exercise of Sixth Amendment rights" (Id. at p. 966.)
In 2006, the Ninth Circuit, in reliance on Geders and Perry, concluded in Sandoval-Mendoza "that trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess." (Sandoval-Mendoza, supra, 472 F.3d at p. 651, fn. omitted.) In view of this rule, the trial court "erred in prohibiting Sandoval-Mendoza and his lawyer from discussing his testimony during an overnight recess." (Id. at p. 652.)[6]
Perry explained that a criminal defendant's right to the assistance of counsel does not include obtaining advice during short trial recesses about how to answer ongoing cross-examination. However, it does protect "the normal consultation between attorney and client that occurs during an overnight recess [which] would encompass matters that go beyond the content of the defendant's own testimonymatters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain." (Perry, supra, 488 U.S. 272, 284, italics added.)
Despite this language in Perry, one decision, on which the Attorney General heavily relies, has upheld an order barring a defense attorney from identifying to the defendant one of the witnesses anticipated the following day at trial. In Morgan v. Bennett (2d Cir. 2000) 204 F.3d 360 (Morgan), the Second Circuit Court of Appeals concluded "that Geders and Perry stand for the principle that the court should not, absent an important need to protect a countervailing interest, restrict the defendant's ability to consult with his *1525 attorney, but that when such a need is present and is difficult to fulfill in other ways, a carefully tailored, limited restriction on the defendant's right to consult counsel is permissible." (Id. at p. 367.)
In Morgan, the defendant was charged with murder as well as the attempted murder of a former girlfriend. The girlfriend was a potential witness. Before trial, she declined to testify because two associates of the defendant had made threatening statements while visiting her in jail. The defendant had also been making comments to the witness in the courthouse halls. (Morgan, supra, 204 F.3d at pp. 362-363.) It was apparently to avoid further witness intimidation that the trial court made its order. (Id. at p. 368.)
The appellate court stated: "In the present case, the problem addressed by the state trial court's limited gag order was far more troubling than the possibility of witness coaching involved in Geders and Perry, for intimidation of witnesses raises concerns for both the well-being of the witness and her family and the integrity of the judicial process." (Morgan, supra, 204 F.3d at p. 367.) The court concluded "that valid concerns for the safety of witnesses and their families and for the integrity of the judicial process may justify a limited restriction on a defendant's access to information known to his attorney." (Id. at p. 368.)
The court upheld the order, observing that its impact was quite limited. The attorney and client could discuss everything except the expected appearance of one witness. Since the witness had already been scheduled to testify, defense counsel presumably was already prepared to cross-examine her, so there was no impact on counsel's preparation. (Morgan, supra, 204 F.3d at p. 368.)
Again, we find California law in general accord. At issue in Alvarado v. Superior Court (2000) 23 Cal.4th 1121 [99 Cal.Rptr.2d 149, 5 P.3d 203] (Alvarado) was not an order confining information to defense counsel, but "the validity of an order, entered prior to trial in a criminal action, that authorizes the prosecution to refuse to disclose to the defendants or their counsel, both prior to and at trial, the identities of the crucial witnesses whom the prosecution proposes to call at trial, on the ground that disclosure of the identities of the witnesses is likely to pose a significant danger to their safety." (Id. at p. 1125, some italics added.) The court concluded that it violated neither the right of confrontation nor due process to keep a witness's identity secret before trial for good cause. (Id. at pp. 1034-1036.) "`Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement." (Pen. Code, § 1054.7.) The court noted that, included in California discovery statutes in the Penal Code, "is the *1526 requirement that a prosecutor disclose the names and addresses of the individuals whom he or she intends to call at trial. (§ 1054.1, subd. (a).) The disclosure may be made to defense counsel, who is prohibited from revealing, to the defendant or others, information that identifies the address or telephone number of the prosecution's potential witnesses, absent permission by the court after a hearing and a showing of good cause. (§ 1054.2.)" (Alvarado, supra, at p. 1132.)
The Supreme Court found that "the evidence presented to the trial court clearly justified its order protecting the witnesses' identities before trial." (Alvarado, supra, 23 Cal.4th at p. 1136.) In issuing its order after a series of in camera hearings from which the defense was excluded, the trial court explained in part: the charged crime was apparently an organized jailhouse murder of a snitch ordered by the Mexican Mafia prison gang; the Mexican Mafia is known for ordering the murders of other snitches and it has an excellent intelligence gathering network; before such a murder is ordered, the gang has an informal trial based in part on paperwork identifying the snitch; and one of the three prospective witnesses had been cut while in jail and warned not to testify. (Id. at pp. 1128-1129.)
As to precluding pretrial disclosure to the defense, the court stated: "we are keenly aware of the serious nature and magnitude of the problem of witness intimidation. [Fn. omitted.] Further, we agree that the state's ability to afford protection to witnesses whose testimony is crucial to the conduct of criminal proceedings is an absolutely essential element of the criminal justice system. As we have explained, a trial court has broad discretion to postpone disclosure of a prospective witness's identity in order to protect his or her safety, and may restrict such pretrial disclosure to defense counsel (and ancillary personnel) alone." (Alvarado, supra, 23 Cal.4th at pp. 1149-1150.)
However, the Supreme Court reached a different conclusion about the impact on the rights of confrontation and cross-examination of keeping a witness anonymous during trial. The court reviewed United States Supreme Court authority requiring witnesses in criminal trials in general to provide their names and residences during cross-examination and a number of California and federal appellate opinions considering whether danger to the witness changed those requirements. (Alvarado, supra, 23 Cal.4th at pp. 1141-1146.) It summarized precedent as follows on page 1146: "In short, although the People correctly assert that the confrontation clause does not establish an absolute rule that a witness's true identity always must be disclosed, in every case in which the testimony of a witness has been found crucial to the prosecution's case the courts have determined that it is improper at trial to withhold information (for example, the name or address of the witness) essential to the defendant's ability to conduct an effective *1527 cross-examination. (Accord, Roviaro v. United States [(1957)] 353 U.S. 53 [1 L.Ed.2d 639, 77 S.Ct. 623] [when an informant is a material witness on the issue of guilt, the prosecution must disclose his or her identity or incur a dismissal]; Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851-853 [83 Cal.Rptr. 586, 464 P.2d 42] [when an informant is a material witness to the crime of which the defendant is accused, the prosecution must disclose the informant's name and whereabouts]; People v. Garcia (1967) 67 Cal.2d 830 [64 Cal.Rptr. 110, 434 P.2d 366] [same].) [Fn. omitted.]"
The court concluded in Alvarado, "the state's legitimate interest in protecting individuals who, by chance or otherwise, happen to become witnesses to a criminal offense cannot justify depriving the defendant of a fair trial. Thus, when nondisclosure of the identity of a crucial witness will preclude effective investigation and cross-examination of that witness, the confrontation clause does not permit the prosecution to rely upon the testimony of that witness at trial while refusing to disclose his or her identity." (Alvarado, supra, 23 Cal.4th at p. 1151.) "[W]e conclude that the trial court erred in ruling, on the record before it, that the witnesses in question may testify anonymously at trial." (Id. at p. 1149, fn. omitted.)
It is also relevant to our analysis that a criminal defendant in California is generally entitled to discover before trial "[r]elevant written ... statements of witnesses ... whom the prosecutor intends to call at the trial." (Pen. Code, § 1054.1, subd. (f); cf. Funk v. Superior Court (1959) 52 Cal.2d 423, 424 [340 P.2d 593].) People v. Fauber (1992) 2 Cal.4th 792 [9 Cal.Rptr.2d 24, 831 P.2d 249] stated on page 821: "[T]he existence of a plea agreement is relevant impeachment evidence that must be disclosed to the defense because it bears on the witness's credibility. (Giglio v. United States (1972) 405 U.S. 150, 153-155 [31 L.Ed.2d 104, 92 S.Ct. 763].) Indeed, we have held that `when an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility.' (People v. Phillips (1985) 41 Cal.3d 29, 47 [222 Cal.Rptr. 127, 711 P.2d 423].)"[7]
*1528 With the foregoing precedent in mind, we examine the order at issue and the parties' contentions. Absent countervailing considerations, Flores's written statement should have been disclosed to the defense during pretrial discovery once the prosecutor determined to call him as a witness, particularly because it reflected a plea agreement that was potentially relevant to his credibility. In this case, there were apparently some countervailing considerations that motivated the trial court to order the conditional sealing of the statement as well as the reporter's transcript of Flores's change of plea hearing that contained the court's sealing order. Flores's counsel expressed his concern that the paperwork not follow him into prison. The court several times stated that the order was made for the protection of Flores.
On appeal, the Attorney General asserts that "[t]his state's policy of protecting witnesses from bodily harm and intimidation is in accord with the principles in Morgan." "[T]he trial court's order here was narrowly tailored to address a compelling need to protect witness Flores's life. Flores was a cooperating witness in a gang-motivated attempted murder. He had been assaulted and stabbed with a knife while in pretrial custody." Citing a Web site and the facts in People v. Reyes (2008) 165 Cal.App.4th 426, 429 [80 Cal.Rptr.3d 619], the Attorney General claims, "[i]t is well established that a cooperating witness's assistance to law enforcement is severely punished (usually with death) when the `paperwork' documenting the individual's cooperation becomes known to the gang community."
This assertion is an attempt to create a record that was not made in this case to justify a restriction broader than the one upheld in Morgan, supra, 204 F.3d 360. In that case, defense counsel was prohibited from disclosing that the attempted murder victim would be appearing as a witness the following day. In this case, defense counsel was prohibited, as best we can tell, from both showing Flores's written declaration to Townley and discussing its contents with him, whether before, during, or after Flores's testimony at trial. Contrary to the Attorney General's characterization, this went well *1529 beyond "simply prevent[ing] the documentary evidence of Flores's cooperation... from being circulated through [Townley] into jail and prison populations." If that were the court's objective, it could have been served by a much more limited order prohibiting counsel from providing Townley with a copy, while permitting discussion of its contents.
The Attorney General asserts that the "order did not materially impede defendant's ability to consult with his attorney about Flores's knowledge of the crime and his statements." After all, Townley and his counsel had access to a police report of an interview of Flores. According to the Attorney General, "[t]hese statements were substantially similar." According to a part of Townley's petition for rehearing that was filed under seal, there are 23 different details in the declaration. Since the declaration remains under seal, it would be improper for us to discuss purported differences in an opinion that will become part of the public record. To the extent there was no difference between the report and the declaration, we perceive no need to prohibit defense counsel from discussing the contents of the declaration with Townley. But we have to wonder why the prosecutor drafted a declaration for Flores to sign if his other pretrial statements were equally incriminatory.
The Attorney General further points out that Townley did eventually learn at trial about the existence and contents of Flores's sealed declaration, at least to the extent that its contents were brought out during direct and cross examination of Flores. The Attorney General asserts that "nothing in the court's order prevented counsel from discussing fully with his client Flores's testimony at trial."
We do not believe that the scope of the court's order was that clear. During in limine motions, the court acceded to the prosecutor's statement that "the order would necessarily disappear" once Flores or Rocha took the witness stand. But later, during the direct examination of Flores, the court denied a request by Carranco's counsel to discuss the statement with his client and instructed counsel to put the written statement in his briefcase immediately. The court had initially explained the terms and conditions of the sealing order at Flores's change of plea hearing, but Townley's attorney was not present at that hearing and its transcript was itself sealed, at least initially. As restated by the court during the trial, the order could be reasonably interpreted as prohibiting counsel from discussing the contents of the declaration with Townley even after Flores testified to the contents. Any ambiguity in the sealing order could well encourage defense counsel to err on the side of caution to avoid the risk of "inviting the judge's wrath, and possibly even courting sanctions for contempt of court, in disobeying the judge's instruction." (Santos, supra, 201 F.3d 953, 966.)
*1530 For the sake of discussion, we will accept the holding of Morgan, supra, 204 F.3d 360, "that the court should not, absent an important need to protect a countervailing interest, restrict the defendant's ability to consult with his attorney, but that when such a need is present and is difficult to fulfill in other ways, a carefully tailored, limited restriction on the defendant's right to consult counsel is permissible." (Id. at p. 367.)
(3) Even under this test, the challenged order exhibits fatal defects. As indicated above, it was not carefully tailored to serve the objective of keeping "paperwork" out of the hands of prison gangs. Instead, it appears to have been tailored to allow the prosecution to produce trial testimony that was a surprise to Townley, if not his counsel. It was also tailored to impede counsel's investigation of the accuracy of the declaration, as he was prohibited from discussing its contents with Townley, his investigator, and anyone else.
In addition, assuming that such a nondisclosure order could be justified based on an "important need" for witness protection, there was no express finding or showing of this kind of good cause. Rule 2.550 of the California Rules of Court provides in part: "Unless confidentiality is required by law, court records are presumed to be open." (Id., subd. (c).) "The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest." (Id., subd. (d).)[8]
We do not discount the evidence that Flores was stabbed in jail. But we see neither evidence nor a finding in the record that this assault was directed or intended by Townley or his codefendant or the Mexican Mafia or any other gang to silence Flores in this case. There is no allusion in the sealed record to other hearings at which Flores or the prosecution made such a showing. On this point, the record pales in comparison to the evidence of witness intimidation before the trial courts in Morgan and in Alvarado. And we note that, despite the compelling showing made in Alvarado, the California *1531 Supreme Court concluded that it did not justify allowing witnesses in a prison gang case to testify anonymously at trial. In that case, the court discussed a number of other ways by which the government could attempt to ensure witness safety and prevent witness intimidation. (Alvarado, supra, 23 Cal.4th 1121, 1150-1151.) In seeking to accomplish these worthy objectives, trial courts should consider the entire range of available alternatives before imposing orders that restrict open communication and consultation between criminal defendants and their counsel about the written pretrial statements of prosecution witnesses against the defendant.
Without more evidence of good cause for a court order barring defense counsel from discussing the contents of Flores's written declaration with Townley, we conclude that this order unjustifiably infringed on Townley's constitutional right to the effective assistance of counsel.
(4) The remaining question is what standard of prejudice applies to such a constitutional violation. That was the question on which the United States granted certiorari in Perry, supra, 488 U.S. 272. (Id. at p. 277.) The court concluded, "[t]here is merit in petitioner's argument that a showing of prejudice is not an essential component of a violation of the rule announced in Geders. In that case, we simply reversed the defendant's conviction without pausing to consider the extent of the actual prejudice, if any, that resulted from the defendant's denial of access to his lawyer ...." (Id. at pp. 278-279.) The court distinguished its later discussion in Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052] of "the standard for determining whether counsel's legal assistance to his client was so inadequate that it effectively deprived the client of the protections guaranteed by the Sixth Amendment." (Perry, supra, at p. 279.) Strickland's citation of Geders "was intended to make clear that `[a]ctual or constructive denial of the assistance of counsel altogether' [citation], is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer's performance itself has been constitutionally ineffective." (Id. at p. 280.)
Despite this clear holding, the Attorney General argues that the automatic reversal rule adopted by Perry does not qualify under later United States Supreme Court rules for identifying structural error.
United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [165 L.Ed.2d 409, 126 S.Ct. 2557] explained this concept at pages 148 and 149. "In Arizona v. Fulminante, 499 U. S. 279 [113 L.Ed.2d 302, 111 S.Ct. 1246] (1991), we divided constitutional errors into two classes. The first we called `trial error,' because the errors `occurred during presentation of the case to the jury' and their effect may `be quantitatively assessed in the context of other evidence *1532 presented in order to determine whether [they were] harmless beyond a reasonable doubt.' Id., at 307-308 (internal quotation marks omitted). These include `most constitutional errors.' Id., at 306. The second class of constitutional error we called `structural defects.' These `defy analysis by "harmless-error" standards' because they `affec[t] the framework within which the trial proceeds,' and are not `simply an error in the trial process itself.' Id., at 309-310. [Fn. omitted.] See also Neder v. United States, 527 U. S. 1, 7-9 [144 L.Ed.2d 35, 119 S.Ct. 1827] (1999). Such errors include the denial of counsel, see Gideon v. Wainwright, 372 U. S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792] (1963), the denial of the right of self-representation, see McKaskle v. Wiggins, 465 U. S. 168, 177-178, n. 8 [79 L.Ed.2d 122, 104 S.Ct. 944] (1984), the denial of the right to public trial, see Waller v. Georgia[, supra], 467 U. S. 39, 49, n. 9 ..., and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction, see Sullivan v. Louisiana, 508 U. S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078] (1993)." To that list of structural errors, United States v. Gonzalez-Lopez, supra, 548 U.S. 140 added "erroneous deprivation of the right to counsel of choice." (Id. at p. 150.)
The United States Supreme Court has not expressly considered whether Geders involved a structural defect or a trial error. Some federal courts have avoided answering this question by finding other reversible error. (Sandoval-Mendoza, supra, 472 F.3d 645, 652; Santos, supra, 201 F.3d 953, 966.) However, Geders was among the cases cited in footnote 25 of United States v. Cronic, supra, 466 U.S. 648 for the proposition, "The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." (Id. at p. 659, fn. 25.) Jones v. Vacco, supra, 126 F.3d 408 stated, "Inherent in Geders, and later made explicit, is the presumption that prejudice is so likely to follow a violation of a defendant's Sixth Amendment right to counsel that it constitutes a structural defect which defies harmless error analysis and requires automatic reversal." (Id. at p. 416.)
Mudd, supra, 798 F.2d 1509, which was decided before Perry, reasoned: "We find that a per se rule best vindicates the right to the effective assistance of counsel. To require a showing of prejudice would not only burden one of the fundamental rights enjoyed by the accused [citation], but also would create an unacceptable risk of infringing on the attorney-client privilege. [Citation.] The only way that a defendant could show prejudice would be to present evidence of what he and counsel discussed, what they were prevented from discussing, and how the order altered the preparation of his defense." (Id. at p. 1513.)
We need not wander far afield to determine whether the United States Supreme Court meant what it said in Perry. The Attorney General provides *1533 no authority that the United States Supreme Court has retreated from that holding. The Attorney General's attempts to minimize the impact of the restriction in this case of "counsel's ability to confer with his client on one very limited topic" do not alter our conclusion that on this topicthe written declaration of an accomplice who was a significant witness at trialTownley was deprived by court order of the effective assistance of counsel. It follows that Townley is entitled to reversal without making a showing of prejudice resulting from this error. In light of this conclusion, we consider other issues only to the extent necessary to provide guidance in the event of a retrial. We need not and do not reach Townley's claims of prosecutorial misconduct and improper judicial comment.
2. Testimony by Flores to a Particular Version of Facts
(5) "A prosecutor may grant immunity from prosecution to a witness on condition that he or she testify truthfully to the facts involved. (People v. Green (1951) 102 Cal.App.2d 831, 838-839 [228 P.2d 867].)" (People v. Boyer (2006) 38 Cal.4th 412, 455 [42 Cal.Rptr.3d 677, 133 P.3d 581].) "[A]n agreement [that] requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain." (People v. Fields (1983) 35 Cal.3d 329, 361 [197 Cal.Rptr. 803, 673 P.2d 680].) "But if the immunity agreement places the witness under a strong compulsion to testify in a particular fashion, the testimony is tainted by the witness's self-interest, and thus inadmissible. (People v. Medina (1974) 41 Cal.App.3d 438, 455 [116 Cal.Rptr. 133].) Such a `strong compulsion' may be created by a condition `"that the witness not materially or substantially change her testimony from her tape-recorded statement already given to ... law enforcement officers."' (People v. Medina, supra, 41 Cal.App.3d at p. 450.)" (People v. Boyer, supra, 38 Cal.4th at p. 455.)
In this case Townley contends that Flores's declaration compelled him to testify to the version of facts contained in that document or risk being prosecuted for perjury and losing the benefit of his plea bargain. That compulsion, Townley insists, "tainted" Flores's testimony, resulting in error that was prejudicial in light of the importance the prosecutor placed on this testimony. We disagree. In the declaration Flores averred that the statements he was making in the document were "true under penalty of perjury." He had discussed his statement with his attorney and had not been threatened or offered an agreement to testify in exchange for telling the truth in the declaration, aside from the plea agreement his attorney had negotiated. Flores's understanding that he would be expected toindeed, "have to"tell the judge that he had made truthful statements in the declaration did not nullify his claim in the declaration itself that he was telling the truth. The trial *1534 court properly interpreted Flores's statement to mean that if he testified, he must do so truthfully. Furthermore, we have taken judicial notice of a subsequent modification of Flores's declaration. The challenged sentence was replaced with the following: "I understand that I have to acknowledge to the Judge in open court and under oath that the contents of this declaration are true at the time of the entrance of my plea." Also added was Flores's handwritten statement, "I understand if called as a witness I must tell the truth." Flores was cross-examined on these changes at trial.
In these procedural circumstances we find no error. The declaration at issue does not compare to People v. Medina, supra, 41 Cal.App.3d at page 450, where accomplice witnesses were given immunity on the condition that they not "materially or substantially" alter their testimony from the recorded account they had given to the police. Also clearly distinguishable is People v. Green, supra, 102 Cal.App.2d at pages 838-839, where the accomplice was promised dismissal of the case against him if his testimony resulted in the defendant's being held to answer for the same charges. It was not improper to require the witness to tell the truth in court.
3. Earlier Versions of Witness Declarations
Townley next contends that he should have been afforded the opportunity to inspect previous versions of Flores's and Rocha's declarations, which they had declined to sign, along with correspondence between the prosecutor and Flores about factual scenarios Flores refused to confirm. In Townley's view, these materials were discoverable under section 1054 and its predecessor authority, People v. Westmoreland (1976) 58 Cal.App.3d 32 [129 Cal.Rptr. 554]. In Westmoreland, the court held that the prosecutor must disclose to the defense "any discussions he may have had with the potential witness as to the possibility of leniency in exchange for favorable testimony even though no offer actually was made or accepted." (58 Cal.App.3d at pp. 46-47.) Townley further argues that the withholding of these "discussions of leniency" denied him his constitutional rights to due process and confrontation of witnesses.
The trial court expressed the view that prior drafts of the witnesses' plea agreements were "not evidence of anything." It did, however, query whether an unsigned version might allow the jury to find a discrepancy worth exploring at trial. The prosecutor maintained that this was work product, a "creature of [her] head" which was not discoverable, and the People adhere to this position on appeal. After extensive discussion among counsel and the court, the court reiterated its opinion that an unsigned declaration was not evidence of anything and that no obligation to produce it arose under Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194].
*1535 We find no error in this ruling. Even discounting the People's position that the prosecutor's suggested version represented her work product, we nonetheless agree with the court that the unsigned declaration was not relevant or material evidence. This case does not present facts similar to those in Westmoreland, where the prosecutor remained silent while the witness falsely testified that he had not been offered the opportunity to plead guilty to a lesser offense. Here there was no attempt to mislead the jury or any arrangement that was not disclosed to the defense. Flores was not promised leniency beyond the negotiated disposition of his case. And here the witness did not agree to any version of the document except the one he signed. That was the relevant evidence that was material to Flores's credibility, and on that document defense counsel were permitted to cross-examine the witness.
Furthermore, even if any prior draft was material evidence favorable to the defense, any error in excluding it was harmless beyond a reasonable doubt. (Cf. People v. Phillips, supra, 41 Cal.3d 29, 48 [failure to disclose agreement between prosecution and witness's attorney but not communicated to witness harmless error].) The jury was fully informed of the details of the plea bargain between Flores and the prosecution. He was cross-examined on the discrepancy between his testimony and his declaration, including the statement in the declaration that he had been wearing a "red and black Pendleton shirt" on the night of the shooting. In addition, the court instructed the jury that Flores's declaration was part of his plea agreement with the prosecution. The withholding of the earlier versions offered to Flores was not prejudicial to Townley.
B. Exclusion of Defendants During Discussions of Declarations
(6) Townley next claims that his exclusion from hearings at which the declarations were discussed violated his constitutional right to be present at critical stages of the proceedings against him. "The rule is established that a defendant has a federal constitutional right that emanates not only from the confrontation clause of the Sixth Amendment but also from the due process clause of the Fourteenth Amendment to be present at any stage of the criminal proceedings `"that is critical to its outcome if his presence would contribute to the fairness of the procedure."' [Citation.]" (People v. Marks (2007) 152 Cal.App.4th 1325, 1332-1333 [62 Cal.Rptr.3d 322].) It is also settled, however, that "a defendant does not have a right to be present at every hearing held in the course of a trial. `During trial, a defendant is not entitled to be personally present at the court's discussions with counsel occurring outside the jury's presence on questions of law or other matters unless the defendant's presence bears a reasonable and substantial relation to a full opportunity to defend against the charges. [Citation.] A defendant claiming a violation of the right to personal presence at trial bears the burden *1536 of demonstrating that personal presence could have substantially benefited the defense. [Citation.]'" (People v. Price (1991) 1 Cal.4th 324, 407-408 [3 Cal.Rptr.2d 106, 821 P.2d 610].)
Townley has not met that burden. He has not shown that his physical presence would have contributed to his attorney's efforts to secure a retraction of the order to withhold the declarations from him. Nor does he offer argument to support the bare assertion that "the error was not harmless beyond a reasonable doubt."
C. Admission of Witness Statements for Impeachment
At trial the prosecution called Anthony Gonzalez and Sarah Oreb, who were among the teenagers at Gonzalez's Harper Street apartment when Townley arrived with Flores, Carranco, and Rocha. Oreb, who was Gonzalez's girlfriend at the time, said that she was "pretty drunk" when sheriffs arrived. To one of the officers, Stefan Fish, however, Oreb appeared to be sober. Several of the teenagers were taken to the sheriff's office for interrogation.
During her first interview by Detective Pintabona, Oreb said she saw the white Honda, a statement she denied at trial. Oreb contributed no further information to Pintabona; she swore "on [her] life up and down" that she did not hear anyone say what Pintabona quoted four others as saying, that the visitors to Gonzalez's apartment had "just shot some scraps." Even when Pintabona insinuated that she could be treated as an accessory, she insisted that she was telling him the truth and that he was "badgering" her to get her to lie. While sitting with the others in the hallway, Oreb saw Gonzalez being taken into custody. A short time later, angry and frustrated, she was reinterviewed. This time Oreb said she heard the words "hit" or "scrap." At trial, she explained that she had told that to Pintabona only so that she could go home. By that time it was almost 7:00 a.m.; she had not slept and had not eaten since the evening.
Stefan Fish, a sergeant by the time of trial, testified that the day after the shooting, Oreb contacted him by telephone and agreed to meet with him because she "felt bad" that she had not previously told the investigator what she had heard the night before. Oreb said that she was at the window in Gonzalez's apartment when she heard one of the people outside say that a "Scrap got hit."
At trial Oreb recanted much of her statement to the police. During examination as a hostile witness by the prosecution, she denied hearing the words "I hit a scrap" spoken outside the window. She testified that the police took her and her friends to the police station, where she told the officers that *1537 she had not heard anything outside the window. The police did not believe her, and they kept threatening to lock her up "just like [her] boyfriend," so she eventually lied and told the officer what he wanted to hear. Oreb denied telling Sergeant (then Deputy) Fish that she felt bad about lying the day before; she initiated the contact only to ask him why Gonzalez had been arrested.
In light of Oreb's adamant retraction, the prosecutor sought to play for the jury a recording of the first police interview between Officer Pintabona and Oreb. Over defense objections, the court allowed the evidence, finding that Oreb's trial testimony was "a fabrication .... It was really shocking." Based on a draft prepared jointly by Townley's counsel and the prosecutor, the trial court gave the jury a cautionary instruction about the use of that evidence. The court explained that any opinion, conclusion, or summary of the facts by the officer was an interviewing technique which could not be used as evidence of either defendant's guilt. The jury was admonished to "totally discount what the police officer says," particularly those statements that the officers "know things" about the defendants. Instead, the jurors were permitted to weigh what they heard in the taped interview against what Oreb had said on the witness stand "about how that interview was conducted."
On appeal, Townley contends that Oreb's incriminating statements should not have been admitted because they were coerced: She was only 16 years old, she was intoxicated, she was deprived of food and sleep for six hours, and she was threatened without Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) before she finally told the officer what he wanted to hear to avoid being arrested.
The evidence on these points was not so straightforward, however. Oreb did not appear to be inebriated to Deputy Fish when he arrived at the apartment. At trial Oreb said she arrived at 1:00 or 2:00 in the morning; yet during the interviewwhich appears to have lasted between 30 minutes and an hourPintabona mentioned that it was 3:00 a.m. After listening to the compact disc recording, Oreb conceded that she was not threatened, but only felt threatened. She also admitted that she was not threatened during the second interview when she told the detective "what he wanted to hear." The trial court found that "Oreb's statements about what happened during the interview were quite consistent with what happened during the interview." The transcripts of her trial testimony and the recorded interview support this factual conclusion. Oreb resisted the officer's attempt to persuade her to accede to his account of the statement about shooting a "scrap." She admitted that there was no badgering or threats in the second interview, at which she voluntarily admitted hearing the reference to "scraps." And even if the second interview was a product of the earlier pressure, the effect did not carry over *1538 to the contact with Deputy Fish the next day, which she initiated by asking specifically for him. Oreb told the deputy that she had heard the words "hit" and "scrap," and that she felt bad for not having admitted this earlier. There is no evidence that this disclosure was precipitated by trauma or the fear of arrest; Oreb herself denied having repeated those words and explained that she had contacted the deputy only to discuss Gonzalez's arrest.
Additionally, almost six weeks after the shooting, while Gonzalez was out of custody, Oreb met with Detective Montes, who investigated gang-related cases for the district attorney's office. Montes showed a photo spread to Oreb. In the course of their meeting, she told him that at the window of Gonzalez's apartment she had overheard "somebody say they hit a scrap." Oreb was not threatened with custody, nor was Gonzalez in custody at that time. She mentioned the statement three times, and her demeanor was "[c]alm, patient, soft spoken[, and] pleasant." She was cooperative, "[j]ust fine."
Finally, in none of the interviews did she attribute the "scrap" reference to Townley. Taking all of these circumstances into account, we find no conceivable prejudice from Oreb's statements. Any error in admitting the assertedly coerced statement was harmless beyond a reasonable doubt. (Cf. People v. Cahill (1993) 5 Cal.4th 478, 510 [20 Cal.Rptr.2d 582, 853 P.2d 1037] [adopting the federal prejudice standard for evaluating admission of defendant's coerced confession]; Arizona v. Fulminante, supra, 499 U.S. at pp. 306-312 [111 S.Ct. 1246]; see also People v. Lee (2002) 95 Cal.App.4th 772, 789 [115 Cal.Rptr.2d 828] [coerced identification of defendant not harmless beyond a reasonable doubt where other evidence of defendant's guilt insufficient].)
When police officers arrived at the Harper Street apartment, they saw that Gonzalez was drunk and was being held up by Oreb. Sergeant Sulay thought Gonzalez was "probably still under the influence" when he was at the station being interviewed, an impression reinforced by Gonzalez at trial. During the interview, however, he said he did not think he was still drunk.
The transcript of the interview with Gonzalez reflected his persistent denials of knowledge. Eventually, the interviewer arrested Gonzalez "for accessory to attempted murder" because he was "covering up." At that point he was read his Miranda rights. That interview lasted about 45 minutes in the early morning of February 18, 2006. In a second conversation with Sergeant Sulay, Gonzalez offered the statement that Townley had come to his house and said, "We beat up some scrap," and shortly afterward the police showed up and started "harassing" him and the rest of the group. At trial Gonzalez said that he did not recall making this statement.
*1539 (7) Townley contends that Gonzalez, like Oreb, was coerced into giving the inculpatory statement. We disagree. The first interview was not unduly prolonged, nor, contrary to Gonzalez's claim at trial, did the interviewer tell him what he wanted Gonzalez to say. The evidence of Gonzalez's degree of inebriation was conflicting. The bare fact that the interviewer advised Gonzalez that if he withheld information he could be considered an accessory after the fact did not in itself make his later statement involuntary. "There is nothing improper in confronting a suspect with the predicament he or she is in, or with an offer to refrain from prosecuting the suspect if the witness will cooperate with the police investigation. More is needed to show that testimony is the inadmissible product of coercion ...." (People v. Daniels (1991) 52 Cal.3d 815, 863 [277 Cal.Rptr. 122, 802 P.2d 906].) Unlike the defendant in People v. Lee, supra, 95 Cal.App.4th 772, on which Townley relies, neither Oreb nor Gonzalez was threatened with an accusation of the charged crime itself. Our independent review reveals no coercion in violation of Townley's due process rights.
D. Instruction on Voluntary Intoxication
Jeanne Taylor, who was the passenger in the car driven by Julie Dufresne, testified at trial that she saw three young men running across the street in front of the car. The shorter one in the red and black plaid Pendleton jacket (which she recognized when shown People's exhibit No. 23) was memorable because he had a "staggered ga[it]" and was "almost stumbling." Having been professionally involved in body mechanics, Taylor thought the gait "looked like a staggering drunk in an attempt to run.... Not losing his balance, just having difficulty with his coordination."
Townley contends that in light of this testimony, the trial court had a duty to instruct the jury on voluntary intoxication with CALCRIM No. 626. Recognizing that he did not request such instruction, he argues that it should have been given sua sponte because there was substantial evidence that the shooter was voluntarily intoxicated. If the jury had received the instruction, Townley maintains, the jury might not have found intent to kill or premeditation and deliberation.
(8) Townley's argument cannot succeed. The Supreme Court has repeatedly held that "an instruction on voluntary intoxication, explaining how evidence of a defendant's voluntary intoxication affects the determination whether defendant had the mental states required for the offenses charged, is a form of pinpoint instruction that the trial court is not required to give in the absence of a request." (People v. Bolden (2002) 29 Cal.4th 515, 559 [127 Cal.Rptr.2d 802, 58 P.3d 931], citing People v. Saille (1991) 54 Cal.3d 1103, 1120 [2 Cal.Rptr.2d 364, 820 P.2d 588]; see also People v. Rundle (2008) 43 *1540 Cal.4th 76, 145 [74 Cal.Rptr.3d 454, 180 P.3d 224], disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11].) Nor would it have been error to refuse the instruction had there been a request. "A defendant is entitled to such an instruction only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's `actual formation of specific intent.'" (People v. Williams (1997) 16 Cal.4th 635, 677 [66 Cal.Rptr.2d 573, 941 P.2d 752]; accord, People v. Roldan (2005) 35 Cal.4th 646, 715 [27 Cal.Rptr.3d 360, 110 P.3d 289].) Jeanne Taylor was the only witness who suggested that the person wearing exhibit No. 23 "looked like a staggering drunk" as he ran across the street; no other witness made any observation or reported that he had been drinking, much less that he was incapable of forming the requisite intent for attempted murder. It is not remotely probable that the jury could have had a reasonable doubt on the question of whether Townley was "not conscious of his actions or the nature of those actions," within the meaning of CALCRIM No. 626. Thus, no pinpoint instruction on voluntary intoxication was necessary.
E. Instruction on Intent to Kill
The trial court instructed the jury with CALCRIM Nos. 875 and 915, which defined the lesser offenses of assault with a deadly weapon and simple assault. Townley recognizes that these were proper instructions in themselves, but he asserts error in the failure of the court to state clearly that these instructions applied only to the assault crimes. By giving "[c]ontradictory instructions," Townley argues, the court "eliminated the prosecution's burden of proving intent to use force and intent to kill in the attempted murder, premeditation and enhancement instructions."
This contention requires no expansive analysis, because the record discloses no ambiguity in the instructions given. The trial court introduced each crime and associated element and enhancement by clearly stating what the prosecution had to prove for that specific concept. In defining attempted murder, for example, the court explicitly stated that the People must affirmatively prove the defendant's specific intent to kill the victim. In defining premeditation and deliberation, the court twice stated that it was the prosecution's burden to prove the allegation and that these elements could not be inferred merely from the commission of an assault with a deadly weapon. The explanations of the assault charges were clearly distinguished from the instructions pertaining to attempted murder. We find no reasonable likelihood that the jury was confused or misled into incorrectly applying the intent instructions. (Cf. People v. Kelly (2007) 42 Cal.4th 763, 791 [68 Cal.Rptr.3d 531, 171 P.3d 548] [no reasonable likelihood the jury would have interpreted instruction not to require intent]; People v. Coffman and Marlow (2004) 34 *1541 Cal.4th 1, 123 [17 Cal.Rptr.3d 710, 96 P.3d 30] [no reasonable likelihood the jury was confused by lack of instruction defining implied malice].)
F. Holding Case for Medina
Townley requested that this court "defer consideration of the appeal" pending the Supreme Court's decision in People v. Medina (2009) 46 Cal.4th 913 [95 Cal.Rptr.3d 202, 209 P.3d 105] regarding the "natural and probable consequences" doctrine. The Supreme Court's opinion in Medina has now been filed, and it offers no ground for reversal in this case.
G. Admission of Gang Evidence
Townley next asserts prejudicial error in admitting evidence of gang membership, vocabulary, and behavior, because he was not a gang member. "Even if the evidence had some relevance to Carranco's case, the court should have denied the prosecutor's 11th-hour motion to consolidate their cases," presumably for the same reason, that it was irrelevant to Townley's. We find no error.
(9) "In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905 [184 Cal.Rptr. 165, 647 P.2d 569].) But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliationincluding evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the likecan help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [16 Cal.Rptr.3d 880, 94 P.3d 1080].)
Here there was abundant evidence that the shooting was gang related and that Townley had participated for the benefit of the Norteno gang, even though he was not a member. Codefendant Carranco clearly was a Norteno member; the occupants of the car talked about finding a Sureno; the victim happened to be wearing blue, the color of the rival Sureno gang, and was walking outside an apartment complex associated with the Surenos; the assailants demanded to know whether the victim was a Norteno or a Sureno and one yelled the word "scrap"; and later at Gonzalez's apartmenta Norteno-safe refugeone of them mentioned having "hit a scrap," a slang reference to assaulting a Sureno. Given the irrefutable motivation for the shooting, this evidence was unquestionably probative. It made no difference that Townley was not a formal member of the Norteno gang. Thus, even *1542 without the evidence recovered from a search of his bedroom (which included items reflecting a Norteno association), the record unambiguously supports the trial court's admission of testimony explaining the practices, culture, and parlance of these rival gangs. Likewise, it was neither error nor prejudicial to admit testimony from Sergeant Fish and Detective Montes that the Ocean Terrace apartments were associated with the Surenos. Because the admission of the gang evidence was proper as to Townley, his assertion of prejudice from the joint trial with Carranco must also fail.
H. Detention and Transportation
Before trial the defense moved to suppress the evidence of the gun and ammunition found in Townley's shoes while being transported to the sheriff's station. The defense argued that the evidence was the fruit of an unlawful detention; although Townley was subject to a probation search, the scope of that condition did not encompass consent to any detention for questioning. The trial court denied the motion, relying on the probation search condition and the evidence the officers had gathered from interviewing witnesses in Gonzalez's bedroom.[9] The court agreed with the prosecutor's suggestion that the officers had probable cause to arrest Townley based on these interviews, but the prosecutor insisted that the transportation was only a detention. The court found that the officers had "probable cause to accuse him of something" when they decided to transport Townley, and they "certainly had probable cause to arrest him" once they had the information from Fritts-Nash about the gun in his shoe.
The People concede that the decision to transport Townley was a "de facto" arrest, but they maintain that it was supported by probable cause. Alternatively, they argue, the probation search condition, along with the information supplied by Fritts-Nash, provided an independent source for the search of the shoes, thereby attenuating any illegality of the transportation. Even if probable cause to arrest was lacking, we agree that the valid probation search condition attenuated the connection between the transportation to the sheriff's station and the subsequent discovery of the concealed gun and ammunition. (Cf. People v. Brendlin (2008) 45 Cal.4th 262, 272 [85 Cal.Rptr.3d 496, 195 P.3d 1074] [outstanding warrant sufficiently attenuated connection between unlawful traffic stop and subsequent discovery of drug paraphernalia].)
*1543 DISPOSITION
The judgment is reversed.
Rushing, P. J., and Premo, J., concurred.
NOTES
[1] Since we have focused on this one issue on rehearing, our opinion has remained the same on other issues to the extent they remain relevant to this appeal and opinion.
[2] One of the detectives who investigated the case testified that Townley was about five feet, seven inches. Carranco was about five feet six inches; and Rocha, about five feet nine inches.
[3] The sealed transcripts and declarations are in the record on appeal and have been provided to appellate counsel, but, on April 15, 2008, this court denied Townley's request to unseal these documents. Accordingly, they remain sealed and should not be disclosed in a document filed publicly. (Cal. Rules of Court, rule 8.160(g).) Though the Attorney General opposed the request to unseal the documents, the Attorney General's later brief quoted from the sealed transcripts, possibly recognizing that the court's orders cannot be justified without reference to the sealed record.
[4] The Attorney General asserts that counsel "received both Flores's sealed declaration and his plea hearing transcript with ample time to prepare for cross-examination." It is unclear from the record what happened with the reporter's transcripts of the change of plea hearings. The court did provide counsel with copies in order to explain its denial of an in limine motion. After this ruling, the court stated, "you need to give those back to the court reporter." The prosecutor asserted to have understood that the court had ordered that "the copies of the transcript would be made available with the same understanding and under the same conditions as were the declarations." The court responded, "I think I did, actually, and they'reand it actually would be more prophylactic if we just left them sealed and took the plea if all he agrees to do is testify truthfully.... [¶] So you can keep those. You can't show those to your client. You can't show them to anybody else." We are not sure whether "those" referred to the declarations or the transcripts, or how it "would be more prophylactic" to allow counsel to retain copies of the transcripts.
[5] In Moore v. Purkett (8th Cir. 2001) 275 F.3d 685, the court restricted the criminal defendant's method of communicating, telling him if he had anything to say to his attorney while court was in session, he should write a note, and not speak, no matter how quietly. The attorney objected that the defendant's writing skills were limited. (Id. at p. 687.) The appellate court concluded that "Moore was actually or constructively denied the assistance of counsel altogether during trial court proceedings." (Id. at p. 689.)
[6] In U.S. v. Triumph Capital Group, Inc. (2d Cir. 2007) 487 F.3d 124, the Second Circuit Court of Appeals claimed to "join our sister circuits and hold that a restriction on communication during a long recess can violate the Sixth Amendment even if the restriction bars discussion only of the defendant's testimony." (Id. at p. 133.)
This purported holding was dictum, however. In that case, the trial court rescinded its order after three hours, so it was only in effect between 5:00 p.m. and 8:00 p.m. (U.S. v. Triumph Capital Group, Inc., supra, 487 F.3d at p. 133.) The appellate court's actual conclusion was that "the court's restriction was trivial and did not meaningfully interfere with the defendant's Sixth Amendment rights to effective assistance of counsel." (Id. at p. 135.) The defense counsel was on notice within 20 minutes of the court order that the government might seek rescission of the order and was aware within two hours that the rescission was likely. (Ibid.) Moreover, the following day, the defendant was given all the time he needed to confer with his attorney before resuming the witness stand for cross-examination. (Id. at p. 136.)
[7] In contrast, under the federal Constitution, "[a] criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the Government's witnesses before they have testified. Fed. Rules Crim. Proc. 16(a)(2), 26.2." (Degen v. United States (1996) 517 U.S. 820, 825 [135 L.Ed.2d 102, 116 S.Ct. 1777].) The rule providing for such discovery is sometimes referred to in federal law as the Jencks rule.
It is because of this critical difference between federal and California law that we do not attach much significance to the decision in Harris v. U.S. (D.C. Cir. 1991) 594 A.2d 546, which is otherwise factually most similar. In that case, two days before a witness testified, the government gave defense counsel the witness's taped confession, which discussed a number of crimes with which the defendant had not been charged. Before ruling on the government's request for a protective order limiting disclosure, the trial court gave defense counsel a chance to review the tape, but barred counsel from giving the tape or a transcript of its contents to the defendant. "[I]t was unclear whether counsel could discuss its contents with him." (Id. at p. 547.) The following day, the government limited its request to allow counsel to discuss the contents without giving the defendant a physical copy. Defense counsel said he might have no objection to that approach, and did not object thereafter. (Id. at p. 548.)
On appeal the defendant contended "that his right to effective assistance of counsel was violated by the trial court's ruling temporarily prohibiting full discussion of the tape between him and defense counsel." (Harris v. U.S., supra, 594 A.2d at p. 548.) The appellate court concluded, "[a] restriction on defense counsel that prevents him from revealing what is possibly Jencks material does not materially interfere with counsel's duty to advise a defendant on trial-related matters." (Id. at p. 549.) It was reasonable of the trial court to "place a temporary and limited restriction on defense counsel's use of what was possibly Jencks material" while the court itself completed screening the tape. (Ibid.) Since the defense got the tape earlier than required by the Jencks rule, the court found "no violation of Harris's right to effective assistance of counsel." (Ibid.)
[8] Similar rules are applied in determining when "public access to a criminal proceeding may be denied: (1) there must be `an overriding interest that is likely to be prejudiced' if the proceeding is left open; [fn. omitted] (2) `the closure must be no broader than necessary to protect that interest'; (3) `the trial court must consider reasonable alternatives to closing the proceeding'; and (4) the trial court must articulate the interest being protected and make specific findings sufficient for a reviewing court to determine whether closure was proper." (People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421 [48 Cal.Rptr.3d 792], quoting Waller v. Georgia (1984) 467 U.S. 39, 45, 48 [81 L.Ed.2d 31, 104 S.Ct. 2210].)
[9] These interviews gave the officers reason to suspect Townley as a participant in the crime or at least an accessory after the fact. Sergeant Sulay in particular believed that Townley's nervous behavior and evasive responses to questioning indicated that he knew more than he was saying. He also admitted ownership of the red and black plaid jacket, People's exhibit No. 23. Once Sulay obtained information about the gun and ammunition from Fritts-Nash, he considered it urgent to contact the deputy transporting Townley, who was riding in the patrol car unhandcuffed.
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396 S.E.2d 760 (1990)
STATE of West Virginia
v.
John W. SCHOOLCRAFT.
No. 19303.
Supreme Court of Appeals of West Virginia.
July 25, 1990.
*761 Larry E. Losch, Summersville, for John W. Schoolcraft.
Roger W. Tompkins, Atty. Gen., Joanna Tabit, Asst. Atty. Gen., Atty. Gen.'s Office, Charleston, for State of W.Va.
BROTHERTON, Justice:
This case is before the Court on the appeal of John W. Schoolcraft from the jury verdict which convicted him of two counts of first-degree sexual abuse and the March 2, 1989, order of the Circuit Court of Nicholas County, which sentenced the appellant to two concurrent terms of one-to-five years in the State penitentiary.
The appellant is a resident of Richwood, West Virginia, where he lives near Michael and Julie W., and their two daughters, Sabrina and Elizabeth, ages eight and five respectively. In September, 1987, the girls' father began to suspect sexual misconduct on the part of the appellant based upon comments made by his daughters. Consequently, he took the children to the State Police headquarters to talk with the authorities.[1]
On October 1, 1987, Elizabeth was examined by Dr. Kheyrolah Abedi, a general surgeon. The examination revealed that Elizabeth had a fused labia, which he believed resulted from an injury occurring approximately ten days prior to the examination. Dr. Abedi stated that his findings confirmed the parents' suspicion of molestation.
On October 1, 1987, West Virginia State Trooper M.R. Ensminger questioned the appellant regarding the alleged sexual abuse of Elizabeth W. On October 2, 1987, the Schoolcraft residence was searched for "one Alf doll, ... a cookie jar canister, a chair with no back or a broken back on wheels, a boom box radio, and doorknob in bedroom." The evidence was sought as substantiation of the veracity of the child's statements. The Alf doll was not found, although the other items were photographed. Thereafter, the appellant was arrested and charged with first-degree sexual assault of Elizabeth W.
On January 12, 1988, the grand jury returned an indictment against the appellant, charging him with two counts of first-degree sexual assault against Elizabeth W. and five-year-old Matthew T., a playmate of Elizabeth. Upon the appellant's counsel's motion, the two indictments were severed.
Elizabeth and Sabrina were interviewed by the West Virginia Department of Human Services about the alleged abuse. The videotaped interview consisted of questions posed by the children's mother, as well as Trooper Ensminger, Eugenia Moore from West Virginia University Hospital, and Trooper Carl Hosey. During the questioning, the children stated that John (the appellant) did not touch them. However, later in the same interview, Elizabeth affirmed that the appellant did indeed touch her.
On July 25, 1988, the trial began on Count One of the indictment concerning the sexual assault of Elizabeth W. The court specifically stated that the trial would proceed only on Count One against Elizabeth W., as the second count involving Matthew T. would not be prosecuted at that time.
At trial, Elizabeth and Sabrina testified that the appellant exposed himself and sexually abused them. Testimony was also elicited that the appellant threatened the children's parents if they told them about the "games." In response, the appellant attempted to introduce, as impeachment evidence, the videotaped interview of Elizabeth and Sabrina in which they initially stated that the appellant did not touch them. The trial court's refusal to allow the use of the videotape forms the basis of the appellant's appeal.
The prosecution also presented the testimony of Dr. Mark Tomsho, a pediatrician in Summersville, who examined Elizabeth at the request of the Department of Human Services. Dr. Tomsho stated that his examination revealed no physical evidence *762 of sexual abuse. However, like Dr. Abedi, Dr. Tomsho found a fusion of the labia which he stated could be due either to abuse or, in rare cases, an allergy to soap or a bicycle injury. Dr. Tomsho noted that the American Journal of Obstetrics and Gynecology had concluded that such fusion could be considered a marker of sexual abuse. Based upon the history given by the mother, his examination, and the child's behavior, Dr. Tomsho concluded that it was his professional opinion that Elizabeth W. had been molested.
At the conclusion of the evidence, the trial court instructed the jury on the offenses of first-degree sexual assault and first-degree sexual abuse. The jury returned a verdict of guilty on two counts of first-degree sexual abuse. On March 2, 1989, the trial court sentenced the appellant to two concurrent sentences of not less than one nor more than five years in the State penitentiary. This proceeding is John Schoolcraft's appeal from that final order.
In his petition for appeal and brief, the appellant alleges that seventy-two separate errors occurred in the proceeding below. However, he fails to either argue the majority of these alleged assignments of error or direct the court's attention to specific errors in the record. "Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived." Syl. pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981). Accordingly, we find the majority of the appellant's assignments of error to be waived. However, we do find merit in two separate assignments of error.
I.
On January 12, 1988, the appellant was indicted on two separate counts of first-degree sexual assault. The first count involved Elizabeth W. and the second count involved Matthew T. The appellant was subsequently convicted of two counts of first-degree sexual abuse in the trial held in February, 1989. However, he was tried on only one count. On February 2, 1988, the prosecution stated:
... at this point I do not see how Matthew T. could ever appear in a jury trial. For that reason we would have no objection to going forward on the other count. The Court: The first count? ... This is the first count according to the copy in the file here. The first count involves Elizabeth W. The second count involves Matthew T., so you're going to go to trial on the first count is that correct?
Mr. Stollings: Yes sir.
The Court: You're not going to oppose, then, the motion to sever counts in this January, 88, indictment, No. 88-F-19, is that correct?
Later that same day, the court again noted that Matthew T. would not be involved in this trial, as the prosecution would proceed only on Count One.
Rule 52(b) of the West Virginia Rules of Criminal Procedure permits this Court to take notice of "plain error" which was not brought to the attention of the trial court. State v. England, ___ W.Va. ___, 376 S.E.2d 548, 554 (1988). This Court "will not ordinarily recognize plain error under such circumstances, even of constitutional magnitude, where the giving of the erroneous instruction did not substantially impair the truthfinding function of the trial." Syl. pt. 2, State v. Hutchinson, ___ W.Va. ___, 342 S.E.2d 138, 139 (1986). In this situation, we believe that a conviction on a charge that was not prosecuted at trial constitutes reversible error and warrants the application of the plain error doctrine.
"A conviction based upon evidence that varies materially from the charge contained in the indictment cannot stand and must be reversed." Syl. pt. 3, State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). Conversely, although an indictment may contain more than one charge, a defendant can only be convicted of the charges that were prosecuted at trial. Consequently, the lower court erred in convicting the appellant on two counts of first-degree sexual abuse when only one count was prosecuted at trial.
*763 II.
The second issue to be addressed is whether the child's answer that she did not recall making the videotaped interview was a sufficient "inconsistent" response to be able to utilize the prior video interview to impeach. Courts have encountered some difficulty with this question, as illustrated by this statement from 3 J. Weinstein & M. Berger, Weinstein's Evidence, ¶ 607[06], at 101-02 (1988):
The most unsettled aspect of determining what amounts to an inconsistency is presented when a witness denies all recollection of a matter about which he had formerly made a statement. Can this former statement be regarded as inconsistent? The common law practicestill probably followed in most jurisdictionswould not consider such statements inconsistent and would not, therefore, permit their use even for impeachment purposes. Wigmore objects to a rule of blanket exclusion noting that
the unwilling witness often takes refuge in a failure to remember, and the astute liar is sometimes impregnable unless his flank can be exposed to an attack of this sort. An absolute rule of prohibition would do more harm than good, and the trial Court should have discretion.
(Citing 3 Wigmore, Evidence § 1043 at 737 (3d ed. 1940); footnotes omitted).
Our own decisions are not a model of clarity. In several earlier cases, we adopted the rule that impeachment by a prior inconsistent statement can be made when the witness denies or does not recall making the prior statement. In syllabus point 1 of State v. Worley, 82 W.Va. 350, 96 S.E. 56 (1918), which involved a witness who could not remember making the prior statement, the Court stated that:
After the foundation therefor is properly laid by calling his attention to prior statements inconsistent with his testimony, a witness may be impeached by proving such statements, and whether the witness denies or fails to recollect them is not material. Point 1 of the syllabus in Robinson v. Pitzer, 3 W.Va. 335, disapproved.[2]
In State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655 (1975), we dealt with the use of a prior inconsistent out-of-court statement where it was being offered as substantive evidence.[3] In the course of that discussion, we recognized the use of the statement for impeachment purposes and, without citing Worley or its progeny, concluded in syllabus point 2:
[H]owever, where the witness does not testify contrary to his prior statement but demonstrates an absence of memory, such prior statement must be used sparingly to demonstrate lack of integrity in the witness or the reason for surprise to the party which calls him, but these legitimate purposes may not be used as a ruse for introducing inadmissible evidence.[4]
*764 Several cases following Spadafore have cited this syllabus point, yet have been somewhat ambiguous in their discussion. In State v. Wayne, 162 W.Va. 41, 245 S.E.2d 838 (1978), overruled by State v. Kopa, ___ W.Va. ___, 311 S.E.2d 412 (1983), the defense called a witness and then attempted to impeach him about a prior inconsistent statement.[5] The witness stated that he could recall giving the statement to the police, but did not remember what he had said. The trial court refused any impeachment evidence. While we did not cite Worley, we concluded that the trial court was correct as the "defendant's effort [was] to introduce the witness's prior statement as substantive evidence through the guise of impeachment." 245 S.E.2d at 842. Under Worley, if the use of the prior statement was solely for impeachment purposes, then the fact that the witness could not recall its contents would not preclude the impeachment.
On the other hand, in our per curiam opinion of State v. Cochran, ___ W.Va. ___, 310 S.E.2d 476 (1983), we held it was error for the trial court to permit the impeachment of a witness by a prior inconsistent statement when the witness stated he vaguely remembered giving the prior out-of-court statement, but could not remember its contents. Significantly, the witness who had been called by the State had refused to give any testimony, as he said he feared for his life because he was incarcerated in the West Virginia penitentiary.
In Cochran, the trial court permitted the impeachment by having the prosecutor read the statement to the jury. The court gave a limiting instruction to the jury to the effect that the statement could be used for impeachment purposes only and not for substantive evidence for proof of guilt. It also appeared that the witness was the State's chief witness. In Cochran, we held that the "trial court erred in permitting the witness to be impeached by his ex parte out-of-court statement. His refusal to acknowledge his earlier statement resulted in no factual testimony that could be impeached. In view of our disposition of this case on evidentiary grounds, we decline to discuss the Sixth Amendment confrontation issue."[6]Id., 310 S.E.2d at 479.
Unquestionably, Cochran involved some novel facts. In all of the preceding cases, the witness had actually testified about some of the events surrounding what was covered by the prior out-of-court statements. The question in these prior cases was whether the witness, after testifying, could be impeached by a prior inconsistent statement when the witness either denied making the prior statement or stated that he had no recollection of what was in the statement.[7]
Certainly, as Worley indicates, the general rule is that such impeachment is permissible. This accords with a number of jurisdictions which take the view that where a witness testifies about events which are covered in a prior out-of-court statement and the witness denies making *765 the out-of-court statement or indicates no present recollection of its contents, then impeachment by a prior statement is permissible. It is also recognized that the trial court has the discretion to make the determination on admissibility. E.g., State v. Butler, 207 Conn. 619, 543 A.2d 270 (1988); People v. Perri, 381 Ill. 244, 44 N.E.2d 857 (1942); People v. Malone, 180 Mich.App. 347, 447 N.W.2d 157 (1989); State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985); State v. Burgos, 200 N.J.Super. 6, 490 A.2d 316 (1985), cert. denied, 101 N.J. 304, 501 A.2d 961 (1985); State v. Miles, 73 Wash.2d 67, 436 P.2d 198 (1968); State v. Lenarchick, 74 Wis.2d 425, 247 N.W.2d 80 (1976). See Annot., 99 A.L.R.3d 906 (1980).
From a procedural standpoint, where the witness cannot recall the prior statement or denies making it, then under W.Va.R.Evid. 613(b), extrinsic evidence as to the out-of-court statement may be shownthat is, the out-of-court statement itself may be introduced or, if oral, through the third party to whom it was made. However, the impeached witness must be afforded an opportunity to explain the inconsistency. We addressed this rule in State v. King, ___ W.Va. ___, ___, 396 S.E.2d 402 (W.Va.1990), where we quoted F. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 4.2(b) 159 (2d ed. 1986):
"Extrinsic evidence entails either calling a third party to testify to the existence and content of the prior inconsistent statement or presenting some documentary or recorded form of the statement. Rule 613(b) provides the requirements for extrinsic proof of a prior inconsistent statement." (Emphasis in original.)
In King, we also discussed the right of the impeached witness under W.Va.R.Evid. 613(b) to be afforded an opportunity to explain the inconsistency between the in-court testimony and the prior out-of-court statement:
Again, Rule 613(b) provides, in part: "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same[.]" (emphasis supplied) The witness, B.K., was obviously afforded an opportunity to not only admit to making the prior inconsistent statements, but also to explain why she made such statements. "Where extrinsic evidence is introduced, Rule 613(b) of the Rules of Evidence requires that the impeached witness be afforded an opportunity to explain the inconsistency[.]" State v. Holmes, ___ W.Va. ___, ___, 351 S.E.2d 422, 426 (1986).
Id.
In the present case, the witness had testified about some of the events covered in the videotape. Thus, it was error for the court to reject any consideration as to the impeachment of the witness by the videotape merely because the witness stated that she had no recollection of making the videotape.
A second claim for the use of the videotape was to show that the witness had been coerced or improperly induced in her testimony. Recently, in State v. King, supra, we had occasion to discuss the use of a videotaped statement of a witness who claimed at trial that she had been under duress or coerced into making a prior out-of-court statement. The State sought to show the videotape to rebut her claim of duress or coercion. The trial court permitted this to be done, and we affirmed its ruling, stating in syllabus point 2 of King the applicable procedures:
A videotaped interview containing a prior inconsistent statement of a witness who claims to have been under duress when making such statement or coerced into making such statement is admissible into evidence if: (1) the contents thereon will assist the jury in deciding the witness' credibility with respect to whether the witness was under duress when making such statement or coerced into making such statement; (2) the trial court instructs the jury that the videotaped interview is to be considered only for purposes of deciding the witness' credibility on the issue of duress or coercion and not as substantive evidence; and (3) the *766 probative value of the videotaped interview is not outweighed by the danger of unfair prejudice.
Here, we have a countervailing situation where the defendant wishes to show that the prosecution's witness was coerced or improperly coached into her testimony by showing the videotaped interview. Other courts have recognized that the issue of whether a witness has been coerced or improperly induced into the testimony is a question which bears upon the witness's credibility. See e.g., United States v. Smith, 550 F.2d 277 (5th Cir.1977), cert. denied, Wallace v. United States, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977). We believe this Court also erred in not permitting the use of the videotaped interview on this basis.
For the foregoing reasons, the judgment of the Circuit Court of Nicholas County is reversed, and this case is remanded for proceedings consistent with this opinion.
Reversed and remanded.
NOTES
[1] Also involved was Matthew T., a playmate of Sabrina and Elizabeth W. Although the appellant was indicted for first-degree sexual assault on Matthew, the trial proceeded only on the first count involving Elizabeth W.
[2] In Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981), we discussed the foundation rule on impeachment at some length and concluded that a specific foundation for the prior statement was not necessary in order to interrogate the witness about the statement. This is consistent with W.Va.R.Evid. 613(a).
In Spence v. Browning Motor Freight Lines, 138 W.Va. 748, 77 S.E.2d 806 (1953), the witness denied making the prior statement and impeachment was permitted. We affirmed this ruling, citing our decision in Worley.
[3] Syllabus point 1 of Spadafore states:
In a criminal case prior out-of-court statements made by a witness cannot be admitted into evidence for the truth of the matter asserted unless they were made under oath in a judicial atmosphere during the taking of a deposition or at a former trial and were subject at that time to cross-examination by the opposing party's counsel.
This is substantially consistent with W.Va.R. Evid. 801(d)(1)(A), as we recently observed in State v. Collins, No. 18795 (W.Va. June 22, 1990).
[4] Spadafore was decided prior to the adoption of the West Virginia Rules of Evidence. In State v. Collins, No. 18795 (W.Va. June 22, 1990), we discussed at some length W.Va.R. Evid. 607, which deals with the impeachment of witnesses, and made these conclusions in syllabus points 3, 4, and 5:
3. Rule 607 of the West Virginia Rules of Evidence allows a party, including the one who called the witness, to impeach a witness by a prior inconsistent statement.
4. Rule 607 of the West Virginia Rules of Evidence does not free either party to introduce otherwise inadmissible evidence into trial under the guise of impeachment.
5. The balancing test in Rule 403 of the West Virginia Rules of Evidence should be used to determine whether impeachment evidence should be barred because its prejudicial effect outweighs its impeachment value.
[5] In State v. Kopa, ___ W.Va. ___, 311 S.E.2d 412 (1983), we overruled prior case law, including State v. Wayne, 162 W.Va. 41, 245 S.E.2d 838 (1978), which stated that a party could not impeach his own witness, absent entrapment, hostility, or surprise. Id. 311 S.E.2d at 424. Instead, we adopted the rule embodied in Rule 607 of the Federal Rules of Evidence.
[6] The Sixth Amendment confrontation issue arose because the witness had given no testimony to the jury except to answer a general question about making a prior statement to which he responded that he had only a vague recollection. The prosecutor's reading of the statement to the jury was claimed to have violated the precepts of California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
[7] In a number of cases, we have routinely approved impeachment by a prior inconsistent statement where the witness acknowledges the prior statement. See, e.g., State v. Brown, ___ W.Va. ___, 371 S.E.2d 609 (1988); State v. Holmes, ___ W.Va. ___, 351 S.E.2d 422 (1986); State v. Kopa, ___ W.Va. ___, 311 S.E.2d 412 (1983); State v. Fellers, 165 W.Va. 253, 267 S.E.2d 738 (1980).
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762 So. 2d 572 (2000)
STATE of Florida, Appellant,
v.
Luis A. MILANES, Appellee.
No. 5D99-3281.
District Court of Appeal of Florida, Fifth District.
July 7, 2000.
Rehearing Denied August 4, 2000.
Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
*573 James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellee.
PER CURIAM.
The State appeals the sentence imposed upon Luis Milanes contending that the trial court erred in omitting victim injury points from Mr. Milanes' sentencing guidelines scoresheet. We agree and therefore remand this matter for resentencing.
Luis Milanes entered a plea of nolo contendere to the charge of committing a lewd act by fondling the fifteen-year-old victim's penis. See § 800.04, Fla. Stat. (1997). In calculating Mr. Milanes' sentencing guidelines scoresheet, the trial court struck forty points which had been assessed for victim injury citing to Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999), review granted, 760 So. 2d 948 (Fla.2000), and Reyes v. State, 709 So. 2d 181 (Fla. 5th DCA 1998). At the time of this ruling, the trial court did not have the benefit of our en banc decision in Kitts v. State, ___ So.2d ___, 2000 WL 553926 (Fla. 5th DCA May 5, 2000), wherein we ruled that victim injury points can be assessed when the accused is adjudicated guilty of fondling the victim. In so ruling, this court receded from the rulings in Spioch and Reyes to the extent that they were in conflict. Accordingly, we must vacate Mr. Milanes' sentence and remand this matter for resentencing in accordance with Kitts. This ruling moots the other claim of sentencing error raised by the State.
Conviction AFFIRMED; sentence VACATED; cause REMANDED for resentencing.
THOMPSON, C.J., PETERSON and SAWAYA, JJ., concur.
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333 S.E.2d 799 (1985)
Ken HECHLER, as Secretary of State, State of West Virginia
v.
The Honorable Patrick CASEY, as Judge of the Circuit Court of Kanawha County, West Virginia, and Southeastern Security & Investigations, Inc.
No. 16700.
Supreme Court of Appeals of West Virginia.
July 5, 1985.
Dissenting Opinion August 8, 1985.
*803 Charlie Brown, Atty. Gen., Gregory W. Bailey, Bethany R. Boyd, Asst. Attys. Gen., Charleston, for appellant.
R. Joseph Zak, Charleston, for appellee Southeastern Security. *800 *801
*802 McHUGH, Justice:
In this original proceeding the Secretary of State for the State of West Virginia [hereinafter "the Secretary"] seeks a writ of prohibition[1] restraining the trial court from enforcing, in essence, two orders, the first enjoining the Secretary from disclosing to the public certain information about the employees of Southeastern Security & Investigations, Inc. [hereinafter "S.S. & I."] and the second enjoining the Secretary from conducting an administrative hearing to determine whether S.S. & I.'s private detective/investigator's license should be suspended or revoked. Before us is the petition, the response filed in accordance with the rule to show cause heretofore issued by us, all exhibits, including the transcripts of the evidentiary hearings before the trial court,[2] and the briefs and oral argument of counsel.
We believe that the trial court exceeded its jurisdiction in entering the injunctive orders in question and, consequently, we award the writ of prohibition, as moulded.
I
S.S. & I., an Ohio corporation, in January, 1985, qualified to transact business in the State of West Virginia. Shortly thereafter, it began supplying security guards to Rawl Sales and Processing Company, a subsidiary of A.T. Massey Coal Company, at Rawl's processing plant at or near Lobata, Mingo County, West Virginia. For some months there had been a strike against Rawl by members of the United Mine Workers of America.
In March, 1985, the Secretary, pursuant to § 3.04 of his administrative regulations governing private detectives and investigators *804 (including security guards),[3] requested in writing from S.S. & I. a list showing the names, birthdates, social security numbers, and current residence addresses of all employees of S.S. & I. stationed in the State of West Virginia. S.S. & I.'s attorney orally informed a deputy Secretary of State, in March, 1985, that S.S. & I. would furnish the requested information if the same would be kept confidential, so as not to further endanger the lives, health, or property of S.S. & I's security guards or their families. The deputy orally replied that, in his opinion, none of the statutory exemptions from the Freedom of Information Act (W.Va.Code, 29B-1-1 et seq.) were applicable.
By a written notice dated March 29, 1985, the Secretary scheduled an administrative hearing, pursuant to W.Va.Code, 30-18-5 [1959], to be held on April 23, 1985, to determine whether to suspend or revoke S.S. & I's private detective/investigator license. Evidence was to be received on two points: (1) S.S. & I.'s failure to supply the names, addresses, etc., of the security guards and (2) S.S. & I.'s employment of at least three convicted felons in violation of the statute on licensing of private detectives and investigators.
On April 3, 1985, S.S. & I. filed with the trial court a petition for prohibitory and injunctive relief. After issuing a rule to show cause and after conducting an evidentiary hearing, the trial court on April 22, 1985, entered an order, over the objection of the Secretary, compelling S.S. & I. to furnish to the Secretary the names, addresses, etc., of the security guards but, as a "protective provision," requiring the Secretary to maintain the confidentiality of such information by having those persons authorized to inspect the names, etc., as part of background investigations to execute a form "agreement" on the confidentiality of such information. In compliance with this order, S.S. & I. submitted the list of employees and their addresses, etc.
The three named employees of S.S. & I. who were suspected by the Secretary as being convicted felons had stated to the contrary in their employment applications. Each of the three had worked for S.S. & I. for less than thirty days, and each of them had been discharged prior to the scheduling of the administrative hearing.
Also on April 22, 1985, the trial court, upon examination of another petition for injunctive relief, granted a preliminary injunction preventing the Secretary from conducting the hearing scheduled for April 23, 1985, respecting the two matters covered in the notice of hearing, so as to permit the trial court the opportunity to determine those two issues after conducting a hearing on the permanency of the injunction. The Secretary thereafter moved to dissolve the preliminary injunction, but the trial court, on May 1, 1985, entered an order denying the motion to dissolve and setting May 20, 1985 as the date for the hearing on the permanency of the injunction.
II
In applying for a writ of prohibition from this Court, in effect to dissolve the injunction against holding the administrative hearing on the two points covered by the notice of such hearing, the Secretary argues that the trial court in entering its injunctive orders exceeded its jurisdiction on the grounds that S.S. & I. failed to exhaust its administrative remedies, failed to prove irreparable harm, and failed to prove the inadequacy of available legal remedies. We agree with these contentions.
III
W.Va.Code, 30-18-5 [1959] provides that the Secretary has the authority to promulgate and enforce such rules and regulations as he deems necessary for the administration and enforcement of the article on regulation of private detectives and investigators (W.Va.Code, 30-18-1 et seq.), including regulations on the issuance, suspension and revocation of licenses issued under such article. This section of the statute *805 also provides for an administrative hearing prior to suspending or revoking a license. The action of the Secretary in suspending or revoking a license shall be subject to review by the Circuit Court of Kanawha County "or other court of competent jurisdiction."
Pursuant to this section of the statute, the Secretary promulgated, effective August 1, 1975, regulations pertaining to private detectives and investigators. W.Va.Code, 30-18-1 [1960] and § 2.03 of the regulations include and define watch, guard or patrol agencies or businesses as also subject to regulation. Included are guards furnished to protect persons or property.
Sections 3.03 and 3.04 of the regulations require, inter alia, that an applicant for a license furnish his, or, in the case of a corporate applicant, all of its employees', name(s) and residence(s), as well as the details of any criminal convictions. Similarly, W.Va.Code, 30-18-2(2) [1959] requires a corporate applicant to furnish, inter alia, for each officer, "[i]n addition to such further information as may be required by the secretary," information as to good character, competency and integrity, including whether any individual has ever been convicted of a felony, or other offense set forth in W.Va.Code, 30-18-3 [1959].[4] (As noted, the regulations require the information for all employees, in addition to the officers, of a corporate applicant for a license. Section 10 of the regulations echoes this requirement for employees.)
Sections 4.01 and 4.02 of the regulations provide that the Secretary, with the assistance of the Department of Public Safety, shall conduct an initial investigation to determine the good character, competency and integrity of an applicant and if, in the Secretary's opinion it is warranted, he will conduct an investigation of an alleged violation by a licensee of the private detective/investigator licensing laws.
Section 9.01 of the regulations sets forth the grounds for the Secretary's suspension or revocation of a private detective/investigator license (after notice to a licensee and a hearing on the charges). Included in these grounds are: (a) making any false statement or giving any false information in connection with an application for a license or a renewal or reinstatement of a license; (b) violating any provision of the statute; (c) violating any of the Secretary's regulations; (d) an employee having been convicted of a felony or any crime involving moral turpitude or any other crime involving the illegal use, carrying or possession of a dangerous weapon.
Sections 9.02-9.04 govern the suspension/revocation hearing before the Secretary. The hearing is to be conducted in accordance with the State Administrative Procedure Act's provisions on contested cases, W.Va.Code, 29A-5-1 et seq.
Upon application of S.S. & I. the trial court has entered a preliminary injunction order preventing the Secretary from conducting such an administrative hearing on alleged noncompliance with the private detective/investigator laws. In so doing the trial court exceeded its legitimate powers by affording the extraordinary remedy of an injunction when the latter does not lie because there is an adequate remedy at law in the form of an administrative remedy provided by statute, specifically, the administrative hearing process, which has not been pursued, much less exhausted. Injunctive relief, like other equitable or extraordinary relief, is inappropriate when there is an adequate remedy at law. See Pulliam v. Allen, 466 U.S. 522, ___, 104 S.Ct. 1970, 1978, 80 L.Ed.2d 565, 576 (1984); Allegheny Development Corp. v. Barati, ___ W.Va. ___, ___, 273 S.E.2d 384, 386-87 (1980). One form of legal remedy which *806 ordinarily is adequate is an administrative remedy provided by statute. "`In general, where there is an administrative remedy provided by statute, it has been declared to be a plain, adequate and complete remedy, barring injunctive relief.'" Gates v. Woods, 169 F.2d 440, 442 (4th Cir.1948) (from S.D.W.Va.). Similarly, this Court held in syl. pt. 4, Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W.Va. 245, 183 S.E.2d 692 (1971): "Proceedings in equity for injunctions cannot be maintained where there is an administrative remedy provided by statute which is adequate and will furnish proper remedy."
Our recent opinion in Cowie v. Roberts, ___ W.Va. ___, 312 S.E.2d 35 (1984), is controlling. In syl. pt. 1 thereto we held:
`The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act.' Syl. pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958).
Citing syl. pt. 3, State ex rel. Arnold v. Egnor, ___ W.Va. ___, 275 S.E.2d 15 (1981); syl. pt. 3, State ex rel. Gooden v. Bonar, 155 W.Va. 202, 183 S.E.2d 697 (1971); syl. pt. 2, Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W.Va. 245, 183 S.E.2d 692 (1971); syl., Capitol Business Equipment, Inc. v. Gates, 155 W.Va. 260, 184 S.E.2d 125 (1971); and syl. pt. 2, State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149 S.E.2d 234 (1966), this Court in Cowie recognized that the exhaustion of administrative remedies is a well-established general rule in this jurisdiction. See generally 4 K. Davis, Administrative Law Treatise §§ 26:1-26:15 (2d ed. 1983).
In State ex rel. Arnold v. Egnor, ___ W.Va. ___, ___, 275 S.E.2d 15, 22 (1981), we noted that "[t]here are exceptions to this general rule of exhaustion of administrative remedies such as lack of agency jurisdiction or the constitutionality of the underlying agency statute." Neither of these exceptions has been asserted at any time by S.S. & I.
This Court in Cowie, supra, emphasized that "[t]he existence of an administrative appeal is as important in determining the appropriateness of extraordinary remedies, such as prohibition [,] mandamus [and injunctive relief], as is the existence of an alternative avenue of judicial relief." 312 S.E.2d at 38. We referred, for example, to McGrady v. Callaghan, 161 W.Va. 180, 186-87, 244 S.E.2d 793, 796-97 (1978), in which this Court held that mandamus would not lie when there was a failure to pursue available and adequate administrative remedies (an administrative hearing as well as appeal to the courts). Similarly, "[t]he presence of a statutory review remedy will ordinarily render the injunctive interruption of the administrative process improper." Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1304 (10th Cir.1973). The court therein concluded that extraordinary proceedings are usually inappropriate in the context of a generalized challenge to administrative proceedings "not ripe for review," such as when litigants attempt "to obtain threshold review by way of preliminary injunction, thereby avoiding the administrative hearing and the court review provided by statute...." Id. at 1305. If administrative proceedings are not allowed to take their course, the petitioner will usually be unable to show imminent irreparable injury, which is also generally fatal to injunctive relief. Id.
The following language from Cowie, supra, is particularly relevant:
Not only did the appellant in this case fail to exhaust his administrative remedies, he failed to even pursue them....
....
The key issue in this case is the effect of the appellant's failure to pursue administrative remedies provided under the statutes involved....
....
The appellant offers no explanation for his failure to pursue his administrative remedies. He does not contend that the appeal procedures ... were `inadequate' *807 in any way. [citation omitted] The appellant's attempt to substitute prohibition for [or here, to seek injunctive relief prior to] the exhaustion of administrative remedies available to him must be rejected[.]
312 S.E.2d at 38-39.
Gates v. Woods, 169 F.2d 440 (4th Cir.1948) (from S.D.W.Va.), a leading case in this area, reaches the same conclusion for premature injunctive relief as Cowie did for substitutionary prohibition relief:
The rule is well settled that a person must first exhaust the prescribed administrative remedy before he can seek any relief in the courts....
....
The plaintiffs have not even attempted to avail themselves of these administrative remedies.... [R]ather they rushed into the [s]tate [c]ourt and sought an injunction to checkmate the [administrative officials] from carrying out the duties imposed upon them by the Act. To sanction such procedure on their part would cut the heart out of administrative action and lead to chaos in the courts.
169 F.2d at 442-43.
In the case now before us the general rule requiring the exhaustion of administrative remedies is applicable. As in Gates v. Woods, supra, S.S. & I. in essence rushed into court for an injunction to prevent the Secretary from carrying out the duties imposed upon him by W.Va.Code, 30-18-1 et seq., specifically, investigating the hiring practices of S.S. & I. to determine whether, in light of its having previously hired three convicted felons, in violation of the statute and regulations, S.S. & I.'s private detective/investigator license should be suspended or revoked. In addition, the Secretary plans to investigate at the administrative hearing provided by W.Va.Code, 30-18-5 [1959] whether any other individuals with proscribed backgrounds have been employed by S.S. & I. Thus, it is clear that the matter is not now moot, as alleged by S.S. & I., merely because the three convicted felons have been discharged by S.S. & I. To the contrary, the matter is ripe for administrative development of the facts as envisioned by the legislature in enacting the regulatory scheme in question.
Having improperly enjoined the administrative hearing, the trial court exceeded its legitimate powers. "Our law is settled that a writ of prohibition will lie [as a matter of right] where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers." State ex rel. Arnold v. Egnor, ___ W.Va. ___, ___, 275 S.E.2d 15, 22 (1981), citing syl. pt. 3, State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978), and syl. pt. 3, State ex rel. Scott v. Taylor, 152 W.Va. 151, 160 S.E.2d 146 (1968). Accord, syl. pt. 7, State ex rel. Hamstead v. Dostert, ___ W.Va. ___, 313 S.E.2d 409 (1984): "`"The writ of prohibition lies as a matter of right when the inferior court ... exceeds its legitimate powers."'" (citations omitted)
That the trial court has not ruled on the permanency of the injunction but has awarded only a preliminary injunction does not preclude this Court from granting the writ of prohibition at this time:
Prohibition is a preventive remedy. One seeking relief by prohibition in a proper case is not required, as a prerequisite to his right to resort to such remedy, to wait until the inferior court or tribunal has determined the question of its jurisdiction, or to wait until the inferior court or tribunal has taken final action in the matter in which it is proceeding or about to proceed.
Syl. pt. 5, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965).
S.S. & I. and the Secretary should develop all relevant matters at the administrative hearing.
IV
In its order entered on May 1, 1985, the trial court continued its preliminary injunction, thereby, inter alia, upholding the conditional *808 refusal of S.S. & I. to furnish the names, addresses, etc., of its employees acting as security guards in this State. The condition upon which such refusal was made by S.S. & I. and approved by the trial court was that the Secretary maintain the confidentiality of the information. S.S. & I. contends that the information is exempt from the provisions of W.Va.Code, 29B-1-1 et seq., this State's Freedom of Information Act [hereinafter "the State FOIA"]. S.S. & I. asserts that the information is exempt from disclosure to the public under W.Va.Code, 29B-1-4(2) [1977] or W.Va.Code, 29B-1-4(4) [1977], or both. We disagree.
The disclosure provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 et seq., as amended, are to be liberally construed, and the exemptions to such Act are to be strictly construed. W.Va.Code, 29B-1-1 [1977]. This section provides:
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the State of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.[5]
This liberal construction of the State FOIA and the concomitant strict construction of the exemptions thereto are of fundamental importance in deciding any case involving construction of this statute.
W.Va.Code, 29B-1-4 [1977] provides in pertinent part:
The following categories of information are specifically exempt from disclosure under the provisions of this article:
....
(2) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance:...;
....
(4) Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement[.]
With respect to either of these two exemptions to the State FOIA, we write essentially on a "clean slate," for our research does not reveal any precedents of this Court on point.[6]
*809 The corresponding exemptions provided by the Federal Freedom of Information Act [hereinafter, "the Federal FOIA"] are 5 U.S.C. §§ 552(b)(6)-(7) (1982) [hereinafter, "exemption 6" and "exemption 7" to the Federal FOIA].[7]
Virtually every other state also has so-called "open records" laws which are similar to the Federal FOIA. See generally Braverman and Heppler, A Practical Review of State Open Records Laws, 49 Geo.Wash.L.Rev. 720 (1981).
We will discuss the invasion of privacy and law enforcement exemptions separately. These respective discussions are not intended to be exhaustive analyses anticipating all ramifications but are narrow in scope to articulate the rationale for our decision on nonapplicability of these exemptions in this case.
A. INVASION OF PRIVACY
At the outset this Court holds that an agreement as to confidentiality between the public body and the supplier of the information may not override the Freedom of Information Act. See Ackerly v. Ley, 420 F.2d 1336, 1339-40 n. 3 (D.C.Cir.1969). "[T]o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA's disclosure mandate." Washington Post Co. v. United States Department of Health & Human Services, 690 F.2d 252, 263 (D.C.Cir.1982). Accordingly, the form agreement on confidentiality prepared by counsel for S.S. & I. and incorporated by reference into the trial court's order requiring disclosure of the security guards' names, addresses, etc. to the Secretary is void to the extent it conflicts with the State FOIA.
The primary purpose of exemption 6 to the Federal FOIA "was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." United States Department of State v. Washington Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 1960, 72 L.Ed.2d 358, 363 (1982) [hereinafter, Washington Post]. The primary purpose of W.Va.Code, 29B-1-4(2) [1977] is the same. The threshold inquiry as to the type of information initially subject to this exemption turns not upon the label of the file containing the information nor upon the "intimate" or "highly personal" nature of the information. See id., 456 U.S. at 600-02, 102 S.Ct. at 1960-61, 72 L.Ed.2d at 363-64. "Rather, `[t]he exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual.' [citation omitted]" Id., 456 U.S. at 602, 102 S.Ct. at 1961, 72 L.Ed.2d at 364.
When disclosure of information which applies to a particular individual is *810 sought from government records, the second and more critical prong of exemption 6 analysis comes into play, specifically, the balancing or weighing of the public's "right to know" against the individual's right to privacy.
Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy, whether the documents are filed in `personnel' or `similar' files.... Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act `to open agency action to the light of public scrutiny.' The device adopted to achieve that balance was the limited exemption, where privacy was threatened, for `clearly unwarranted' invasions of personal privacy.
Department of Air Force v. Rose, 425 U.S. 352, 371-72, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11, 27 (1976) [hereinafter, Rose]. Similarly, under W.Va.Code, 29B-1-4(2) [1977], a court must balance or weigh the individual's right of privacy against the public's right to know. Emphasizing the limited nature of the exemption, the Supreme Court of the United States stated: "Moreover, we repeat, Exemption 6 does not protect against disclosure every incidental invasion of privacyonly such disclosures as constitute `clearly unwarranted' invasions of personal privacy." Id., 425 U.S. at 382, 96 S.Ct. at 1608-09, 48 L.Ed.2d at 33.
In this regard the court expressed in Washington Post, supra, that the non-intimate or public nature of the information "may be a reason to conclude, under all the circumstances of a given case, that the release of such information would not constitute a `clearly unwarranted invasion of personal privacy,' ..." 456 U.S. at 602-03 n. 5, 102 S.Ct. at 1962 n. 5, 72 L.Ed.2d at 365 n. 5.
Furthermore, the court remarked in Rose, supra, that "[t]he legislative history is clear that Exemption 6 was directed at threats to privacy interests more palpable than mere possibilities." 425 U.S. at 380 n. 19, 96 S.Ct. at 1608 n. 19, 48 L.Ed.2d at 32 n. 19.
The latter principle follows from the basic thrust of the Freedom of Information Act. As reviewed in Rose, supra, the following two salient points must be remembered in any FOIA case, regardless of which exemption is claimed to be applicable. First, the fullest responsible disclosure, not confidentiality, is the dominant objective of the Act. Second, the exclusive exemptions from disclosure must be narrowly construed. 425 U.S. at 360-62, 96 S.Ct. at 1599, 48 L.Ed.2d at 21-22.
With these fundamental purposes in mind, we now examine some precedents analyzing the invasion of privacy exemption in contexts similar to the facts in the case before us. For a collection of federal cases see annot., 16 A.L.R.Fed. 516 (1973). For a collection of state cases see annot., 26 A.L.R.4th 666 (1983).
In Cunningham v. Federal Bureau of Investigation, 540 F.Supp. 1 (N.D.Ohio 1981), an action was brought under the Federal FOIA to compel disclosure of information held by the F.B.I. "Many of the individuals about whom the plaintiff seeks information are police officers. The Court does not believe that any denial of information concerning police officers can be justified under either exemption [exemption 6 or exemption 7(C) authorizing withholding of law enforcement investigatory records when disclosure would constitute an unwarranted invasion of personal privacy]...." 540 F.Supp. at 2. The court held that there would not be an unwarranted invasion of the police officers' privacy because "[t]heir involvement in law enforcement activities is not a `private fact'." Id. "Absent some showing that disclosure would endanger their safety and, thus that Exemption 7(F) applies, defendants must produce these documents." Id.
Cunningham is persuasive in the instant case. If the disclosure of the identities of police officers does not reveal "private" facts, a fortiori the disclosure of the identities *811 of security guards does not reveal "private" facts because the occupational activities of security guards involve less risk of physical harm. S.S. & I.'s claim that disclosure of their security guards' names and addresses to the public would endanger the lives, health or property of the guards or of their families is, on this record, speculative. The record indicates that there have been no acts of violence toward the guards even though their identity as guards is generally known and even though some of the guards have been temporarily residing at or near the job site where the labor dispute has been occurring.
Similarly, in Ferguson v. Kelley, 448 F.Supp. 919 (N.D.Ill.1977), the names of F.B.I. agents were not exempt from disclosure as an unwarranted invasion of their privacy. The agent's "involvement in investigative activities for the FBI is not a `private fact.' While there may be instances when disclosure of an agent's identity would endanger his safety, exemption from disclosure under 552(b)(7) will be allowed only after a showing of that danger." 448 F.Supp. at 923.
To show that danger, law enforcement personnel may not merely assert that their occupational activities relate to possibly dangerous conduct. "The Court will not assume that the safety of law enforcement personnel who are involved in such investigations is endangered per se. Defendant must make a more compelling showing that disclosure would endanger the safety of law enforcement personnel." Fiumara v. Higgins, 572 F.Supp. 1093, 1107 (D.N.H.1983). Certainly, security guards, whose need for "protection" is less than that of law enforcement personnel, must make an even more compelling showing of danger.
Another reason that the names and addresses of the security guards are not exempt under the invasion of privacy exemption is that such information is not "personal"; rather, it is, practically speaking, "public" in nature, the release of which would not constitute an unreasonable invasion of "privacy." See n. 5, Washington Post, supra. "The Court may, in its balancing process, consider the extent to which the requested information is otherwise available. However, such availability `strengthens the case for FOIA disclosure by suggesting that disclosure will not seriously invade personal privacy.' [citation omitted]" National Association of Atomic Veterans, Inc. v. Director, Defense Nuclear Agency, 583 F.Supp. 1483, 1487 (D.C.Cir.1984).
Kotulski v. Mt. Hood Community College, 62 Or.App. 452, 660 P.2d 1083 (Or.Ct.App.1983), addresses this very issue. Therein a faculty member sought the disclosure of the names and addresses of all part-time instructors at the college. The college offered the names but not the addresses on the ground that release of the latter would constitute information of a personal nature and would result in an unreasonable invasion of privacy under a state public records law exemption almost identical to W.Va.Code, 29B-1-4(2) [1977].
The court in Kotulski held the claimed exemption provision to be inapplicable. It defined "personal" information as that which would not normally be shared with strangers. The court then concluded that one's address does not fall within such definition, for addresses are commonly listed in telephone directories, printed on checks and provided to merchants, as well as appearing on drivers' licenses and other identification that is routinely shown to strangers. 660 P.2d at 1086.
This Court is of the opinion that the analysis in Kotulski is sound and supports disclosure of the names and addresses in this case. W.Va.Code, 29B-1-4(2) [1977] does not normally exempt from disclosure an individual's name and residential address because they are not "personal" or "private" facts but are public in nature in that they constitute information normally shared with strangers and are ascertainable by reference to many publicly obtainable books and records. Thus, disclosure of an individual's name and residential address would not result in an unreasonable invasion of privacy.
*812 In McNutt v. New Mexico State Tribune Co., 88 N.M. 162, 538 P.2d 804 (N.M.Ct.App.1975), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975), a case not involving a freedom of information act but a tort action for invasion of privacy, policemen were denied recovery against a newspaper company which had, in retaliation for the officers' refusal to furnish information, published the officers' names and residential addresses in a story about the officers' gun battle with members of an organization called the Black Berets. Subsequent to publication, the plaintiffs received anonymous phone calls threatening violence. The court held that the publication was not an actionable invasion of privacy. In so holding the court concluded that the address of most persons appears in many public records, such as voting registration rolls, property assessment rolls, motor vehicle registration rolls, as well as in telephone directories. Thus, the court was of the opinion that an individual's home address is a public, not a private, fact, and the mere publication thereof does not constitute an invasion of privacy. 88 N.M. at 166, 538 P.2d at 808. Accord, Strutner v. Dispatch Printing Co., 2 Ohio App.3d 377, 379, 442 N.E.2d 129, 133 (Ohio Ct.App.1982) (since addresses of individuals are easily ascertainable by reference to many publicly obtainable books and records, such as telephone directories and voting, tax, and motor vehicle records, mere publication of a person's address and name does not constitute tort of invasion of privacy). See annot., 84 A.L.R.3d 1159 (1978).
For another example of a case involving a state freedom of information act's invasion of privacy exemption, see Kwitny v. McGuire, 102 Misc.2d 124, 422 N.Y.S.2d 867 (Sup.Ct.1979), aff'd, 77 A.D.2d 839, 432 N.Y.S.2d 149 (App.Div.1980), aff'd, 53 N.Y.2d 968, 441 N.Y.S.2d 659, 424 N.E.2d 546 (1981) (pistol license applications containing names and addresses of applicants are not exempt from disclosure; danger to applicants from criminals obtaining the information is speculative).
To summarize, in light of the liberal construction of the State FOIA disclosure provisions and the strict construction of the exemptions to such Act, the invasion of privacy exemption does not apply to a list of names and addresses of security guards furnished to the Secretary of State pursuant to his licensing and regulation of the guards' employer, since such information is not personal in nature but public facts, and since the risk of harm from disclosure is speculative.
B. LAW ENFORCEMENT INVESTIGATORY RECORDS
S.S. & I. also contends that the list of names, addresses, etc., of the security guards is a record of a law enforcement agency, namely, the Secretary of State, and is to be kept confidential under the law enforcement exemption to the State FOIA.
The primary purpose of exemption 7 to the Federal FOIA for law enforcement investigatory records was "to prevent premature disclosure of investigatory materials which might be used in a law enforcement action." Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376, 383 (1982). The primary purpose of W.Va.Code, 29B-1-4(4) [1977] is the same.
The threshold inquiry under both the State FOIA and the Federal FOIA is whether the information claimed to be exempt from disclosure under the law enforcement exemption constitutes (1) "investigatory records" (2) "compiled for law enforcement purposes" (federal) or "records... that deal with the detection and investigation of crime...." (state)[8]
*813 The list of names, addresses, etc., of the security guards does not constitute "investigatory records" or "records... that deal with the detection and investigation of crime" because it was not
compiled as part of an inquiry into specific suspected violations of the law. [citations omitted] Rather, [it is] more accurately described as [a] record[] generated pursuant to `routine administration, surveillance or oversight....'
... The fact that information ... may form a basis for further investigation does not make that [information] an investigatory record created pursuant to an investigation. [emphasis in original]
... The information [in question] is ... gathered during the course of routine administration and does not become investigatory because it may alert the administrator to a possible violation of law.
Goldschmidt v. United States Department of Agriculture, 557 F.Supp. 274, 276 (D.D.C.1983). Accord, Stern v. Federal Bureau of Investigation, 737 F.2d 84, 89-90 (D.C.Cir.1984) (distinguishing between specifically focused "investigations" for "law enforcement" purposes and general "monitoring" by an agency). "Records ... that deal with the detection and investigation of crime," within the meaning of W.Va.Code, 29B-1-4(4) [1977], do not include information generated pursuant to routine administration or oversight, but is limited to information compiled as part of an inquiry into specific suspected violations of the law.
The list in question also does not constitute "internal records and notations... which are maintained for internal use in matters relating to law enforcement[.]" W.Va.Code, 29B-1-4(4) [1977]. This part of this exemption to the State FOIA is similar to exemption 7(E) to the Federal FOIA involving confidential "investigative techniques and procedures." The language, "internal records and notations ... which are maintained for internal use in matters relating to law enforcement," within the meaning of W.Va.Code, 29B-1-4(4) [1977], refers to confidential investigative techniques and procedures. A mere listing of names, addresses, social security numbers, and the like, of the employees of a company subject to regulation by an agency clearly is not a confidential investigative technique or procedure.
The theory underlying this exemption is that disclosure of such information could complicate the task of investigative agencies because potential violators of the law could familiarize themselves with the policies which govern law enforcement methods and frustrate investigations. [citation omitted] ... The exemption does not encompass, however, ordinary manuals or procedures unless they include confidential details of law enforcement programs. [citation omitted]
Jaffe v. Central Intelligence Agency, 573 F.Supp. 377, 387 (D.D.C.1983). See generally annot., 82 A.L.R.3d 19 (1978).
Having concluded that W.Va.Code, 29B-1-4(4) [1977] is not applicable to the facts of this case, even if it applies to civil enforcement proceedings of administrative agencies, we deem it unnecessary in this case to decide whether this exemption applies to records of "law-enforcement agencies" defined to mean only those agencies enforcing criminal laws. It is clear that exemption 7 to the Federal FOIA "includes the enforcement of both civil and criminal federal laws." Stern v. Federal Bureau of Investigation, 737 F.2d 84, 89 (D.C.Cir.1984). It is not so clear whether W.Va.Code, 29B-1-4(4) [1977] includes regulatory agencies' proceedings only to invoke civil sanctions, such as suspension or revocation of a license issued by the agency, and not to enforce penal laws. The state of Texas, for example, has an exemption worded identically to ours.[9] The legislative history of Texas' statute clearly limits the exemption to criminal law enforcement proceedings by any agency but some of the commentators have suggested a more expansive definition. See Comment, The Texas Open Records Act: A Section-By-Section Analysis, 14 Hous.L.Rev. 398, 413-14 *814 & n. 131 (1977). Again, we leave to another day the question of the scope of the term "law-enforcement agencies" within the meaning of W.Va.Code, 29B-1-4(4) [1977].
To summarize, the law enforcement exemption does not apply to a list of names and addresses of security guards furnished to the Secretary of State pursuant to his licensing and regulation of the guards' employer, since such information was not part of an inquiry into specific suspected violations but was generated pursuant to routine administration of W.Va.Code, 30-18-1 et seq. and the regulations promulgated thereunder, and does not reveal confidential investigative techniques or procedures.
V
In his memorandum of law filed with his petition to this Court, as well as in a subsequently submitted "motion" filed with us, the Secretary seeks recovery of attorney fees, including but not limited to the statutory attorney fee of thirty dollars ($30.00) provided by W.Va.Code, 59-2-14(b) [1960] to the party prevailing in this Court.
The Secretary cites as authority for such recovery W.Va.Code, 53-5-9 [1931][10] and W.Va.Code, 59-2-18 [1931].[11] Included with his motion for attorney fees is an itemization of time and services expended in this matter by the Office of the Attorney General of this State representing the Secretary. The itemization is for a total of $8,112.50. It is based upon allegedly prevailing rates of $90.00 per hour and $70.00 per hour for partners and associates, respectively, in law firms in Kanawha County, West Virginia. The time billed is in quarter-hour increments.
S.S. & I. resists such motion. It asserts that no amount in excess of the $30 fee provided by W.Va.Code, 59-2-14(b) [1960] should be recoverable because affording the relief sought by the Secretary "would have a chilling effect upon any litigant's decision to pursue his legal remedies in the Courts of this state." S.S. & I. also challenges in several respects the manner of calculating the attorney fees. It points to purported "fee-stacking" (billing for more than one attorney's time during conferences between attorneys on the same case); to counsel's alleged drafting of proposed orders, when the Court apparently drafted its own order; to the alleged practice of the legal community to bill in one-tenth-hour increments; to the payment of attorney fees by the State under the Public Legal Services article at the rate of $25.00 per hour for in-court work and $20.00 per hour for out-of-court work.[12]
We hold that the Secretary is not entitled to recover reasonable attorney fees.
W.Va.R.App.P. 23(b)[13] expressly precludes an award of costs for the benefit of the State or an agency or officer thereof in *815 a case before this Court. W.Va.Code, 59-2-14(b) [1960], providing for the inclusion in costs to the prevailing party in this Court of the statutory attorney fee of $30, is, therefore, not applicable to the State as prevailing party in this Court.
With one exception discussed below, no party may recover attorney fees beyond the statutory amount as part of the "costs" of a proceeding. The Secretary's reliance on W.Va.Code, 53-5-9 [1931] is misplaced: "In the decree dissolving an injunction and dismissing the bill, attorney's fees (except the statutory fee) cannot be recovered as a part of the costs or as damages to the party prevailing. Reasonable attorneys' fees in such cases are recoverable in a suit on the injunction bond." Syl. pt. 2, Humphrey Manufacturing Co. v. City of Elkins, 93 W.Va. 16, 115 S.E. 846 (1923). This Court echoed the same holding in syl. pt. 1, State ex rel. Shatzer v. Freeport Coal Co., 144 W.Va. 178, 107 S.E.2d 503 (1959): "Reasonable attorneys fees, incurred by the party enjoined in procuring the dissolution of an injunction which was wrongfully issued, are recoverable as an element of damages in an action upon an injunction bond."
We more recently discussed the allowance of reasonable attorney fees as part of the costs of extraordinary proceedings in the case of Nelson v. West Virginia Public Employees Insurance Board, ___ W.Va. ___, 300 S.E.2d 86 (1982), in which this Court awarded reasonable attorney fees in a mandamus proceeding against a public agency which, admittedly, failed willfully to obey a clear statute. In Nelson we recognized that "[a]s a general rule awards of costs and attorney fees are not recoverable in the absence of a provision for their allowance in a statute or court rule." 300 S.E.2d at 91. After noting that the mandamus statute authorizes a court to grant such a writ with or without "costs,"[14] we mentioned the traditional holding of this Court that reasonable attorney fees ordinarily are not recoverable as "costs." 300 S.E.2d at 91-92. We concluded, however, that an exception to the general rule was applicable, specifically, the allowance of reasonable attorney fees, without express statutory authorization, as part of the costs of the proceeding, when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. 300 S.E.2d at 92. It does not appear that this exception is applicable to the facts of this case.
In this case, though, we would not have to look to the "bad faith" exception in order to hold that reasonable attorney fees are recoverable by a prevailing private litigant. Under W.Va.Code, 53-5-9 [1931], they clearly would be recoverable by a private litigant.
The question arises, though, whether, like a prevailing private litigant, the State or an agency or officer thereof may, under W.Va.Code, 53-5-9 [1931], recover reasonable attorney fees as damages incurred to have an injunction dissolved, when the State agency or officer was represented by the Office of the Attorney General of this State. We hold that the State may not so recover.
The compensation of an attorney general is to be determined in accordance with applicable constitutional and statutory provisions. 7A C.J.S. Attorney General § 6.a. (1980); 7 Am.Jur.2d Attorney General § 4 (1980). W.Va. Const. art. VII, § 19 provides, in pertinent part:
The officers named in this article [the Attorney General is named in art. VII, § 1] shall receive for their services a salary to be established by law,[15] which *816 shall not be increased or diminished during their official terms, and they shall not ... receive to their own use any fees, costs, perquisites of office or other compensation, and all fees that may hereafter be payable by law, for any service performed by any officer provided for in this article of the Constitution, shall be paid in advance into the state treasury. (emphasis added)
This section of the Constitution of this State was amended, effective November 4, 1902, to read as above. Prior to that date this section read, in pertinent part, as follows: "[T]he attorney general [shall receive] thirteen hundred dollars per annum; and no additional emolument or allowance, except as herein otherwise provided, shall be paid or made out of the treasury of the State to any of the foregoing executive officers on any account." (emphasis added)[16]
Thus, the Constitution of this State restricts the compensation of the Attorney General and of the other named executive department officers to a strict salary basis and bars the officers from supplementing or increasing their legislatively provided compensation by their receipt of fees or any other form of compensation. See State ex rel. Barrett v. Boeckler Lumber Co., 302 Mo. 187, 204, 257 S.W. 453, 455 (1924).
While prohibiting receipt of fees, etc., for the use of the executive officers, including the Attorney General, W.Va.Const. art. VII, § 19 expressly authorizes the receipt into the State treasury of all fees payable by law for any service performed by such officers. "[P]ayable by law" refers to statutory or constitutional authorization. See Manchin v. Browning, ___ W.Va. ___, ___, 296 S.E.2d 909, 915 (1982); W.Va.Code, 2-2-10(t) [1973]. There is no statutory authorization for payment of the Attorney General's reasonable attorney fees[17] into the State treasury when the State agency or officer which he has represented has succeeded in having an injunction dissolved. W.Va.Code, 53-5-9 [1931] authorizes the person previously enjoined to recover damages in an action on the injunction bond. The State, however, has not been "damaged" by being enjoined. The salaries of the regular staff of the Attorney General would have been paid regardless of this litigation. That W.Va.Const. art. VII, § 19 does not expressly prohibit assistant attorneys general from supplementing their salaries from sources other than the State treasury[18] does not avoid the well established case law requirement (discussed above) that reasonable attorney fees are not recoverable unless affirmatively authorized by court rule or statute, and such is lacking here.
Finally, to allow the State to recover reasonable attorney fees would ordinarily have a "chilling effect" upon a person's constitutional rights to apply to government *817 for redress of grievances[19] and to have the courts of this State open to him.[20]
In summary, the Secretary may not recover reasonable attorney fees incurred, either as "costs" or as "damages."
VI
For the reasons set forth above, we grant the writ of prohibition as moulded.
Writ granted as moulded.
BROTHERTON, Justice, dissenting:
I concur with the majority's opinion except the part which upholds the May 21, 1985, action of the Court releasing the list of names and addresses of the security guards to the general public. I must dissent to that action, not that had the question been before the Court on proper motion that it might have been the proper action.
None of the parties before this Court requested the release of the names and addresses of the security guards to the general public. In fact, all parties agreed that the names should be kept sealed and even executed a consent order to that effect. No one filed a Freedom of Information Act request for this information.
Despite the fact that no one requested the names, this Court precipitously released the list of names on its own motion. A universal maxim of law in this country is that the judiciary acts only on cases and controversies. See, e.g., Teller v. McCoy, 162 W.Va. 367, 396-97, 253 S.E.2d 114, 131 (1978) (Neely, J. concurring in part and dissenting in part.); W.Va. Const. art. 8 § 3. A court should not fashion relief on its own motion on matters not before the court. I, therefore, must dissent to this action.
NOTES
[1] The Court notes that the preferable style to this proceeding in prohibition would have been to commence the same with "State of West Virginia ex rel...." See State ex rel. Goodwin v. Cook, 162 W.Va. 161, 166, 248 S.E.2d 602, 604-05 (1978) (a tribunal exceeding its jurisdiction acts in contempt of the sovereign, the people of the State).
[2] There were two proceedings below, and the record before us contains the records, including orders and transcripts, from both proceedings. The first proceeding was for prohibitory and injunctive relief. It related to the Secretary's informal but unmistakable position that the list of S. S. & I's employees' names, addresses, etc., were, if furnished to the Secretary, available for public inspection upon request, under the Freedom of Information Act (W.Va.Code, 29B-1-1 et seq.). The second proceeding, a resumption of the first, was for injunctive relief. It related to the Secretary's scheduling of an administrative hearing on S.S. & I's alleged noncompliance with certain private detective/investigator laws, including the failure to supply the names and addresses of security guards. Thus, the two proceedings overlap and are inextricably interconnected on the question of disclosure of the names and addresses of the security guards. The trial court's order in the second, admittedly challenged proceeding, in enjoining the holding of the administrative hearing, necessarily presents on the record the question of disclosure to the public of the names and addresses of the security guards, inasmuch as the Secretary's position on the record on that point is adverse to S.S. & I's position on the record on the same. Moulding the writ under the circumstances of this case to provide guidance on the question of disclosure of the security guards' names and addresses to the public, and not merely to the Secretary, is appropriate due to the Secretary's existing ruling on the question and the desirability of judicial economy on an important public issue of first impression in this jurisdiction. See Hinkle v. Black, ___ W.Va. ___, ___, 262 S.E.2d 744, 748 n. 5 (1979).
[3] These administrative regulations were made a part of the record before us.
[4] W.Va.Code, 30-18-3 [1959] prohibits the issuance of a license to any person who has been convicted in this State or elsewhere of a felony, or of any of the following misdemeanors or offenses: (a) illegally using, carrying or possessing a pistol or other dangerous weapon; (b) making or possessing burglar's instruments; (c) buying or receiving stolen property; (d) unlawful entry of a building; (e) aiding escape from prison; (f) unlawful possessing or distributing habit-forming narcotic drugs; or (g) any felony offense involving moral turpitude.
[5] To the same effect as W.Va.Code, 29B-1-1 [1977] is this eloquent aphorism of James Madison in a letter to W.T. Barry, August 4, 1822, included in The Complete Madison 377 (Padover ed. 1953): "A Popular Government, without popular information, or the means of acquiring it is but a Prologue to a Farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and the people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
[6] We note, however, the language in Sattler v. Holliday, ___ W.Va. ___, 318 S.E.2d 50 (1984). While this Court held in that case that the matter of disclosure of records alleged to be exempt as law enforcement records was not properly before us, we observed: "[A] good argument could be made that material should only be exempt if it protects an interest that weighs more greatly than the public's right to know.... We have been admonished to make decisions in favor of disclosure. W.Va.Code, 29B-1-1." 318 S.E.2d at 52.
[7] Under these federal exemptions, matters are not available to the public which are:
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel[.]
While the invasion of privacy exemption to the State FOIA closely tracks exemption 6 to the Federal FOIA, the law enforcement exemption to the State FOIA, as we noted in Sattler v. Holliday, ___ W.Va. ___, ___, 318 S.E.2d 50, 52 (1984), appears at first blush to be a somewhat broader exemption than exemption 7 to the Federal FOIA, amended in 1974 to limit exemption thereunder to six types of situations in which disclosure is likely to cause specified types of injury. We do not, however, believe that W.Va.Code, 29B-1-4(4) [1977] creates a blanket law enforcement exemption, as did the pre-1974 Federal FOIA, because our statute, unlike the pre-1974 Federal FOIA, does not exempt entire "files" labeled "law enforcement" and does not expressly limit disclosure to "authorized private parties," as did the pre-1974 Federal FOIA.
[8] On a related matter, we note that there has been no claim on the record that the list of names, addresses, etc., furnished to the Secretary by S.S. & I. does not constitute a "public record," as defined by W.Va.Code, 29B-1-2(4) [1977] to include "any writing containing information relating to the conduct of the public's business, prepared, owned and retained by a public body." This Court does not, therefore, decide whether such list is a "public record."
[9] Tex.Rev.Civ.Stat.Ann. art. 6252-17a, § 3(a)(8) (Vernon Supp.1985).
[10] W.Va.Code, 53-5-9 [1931] provides, in pertinent part:
An injunction ... shall not take effect until bond be given in such penalty as the court or judge awarding it may direct, with condition to pay ... such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved, ... or, if the injunction be not to proceedings on a judgment or decree, with such condition as such court or judge may prescribe.
In its injunctive order dated May 1, 1985, the trial court required S.S. & I. to post a bond in the amount of $2,500.00 as security for "any lawful claims the [Secretary] may have in the event it is determined on appeal that the [injunctive order] of the [trial court] is modified or reversed."
[11] W.Va.Code, 59-2-18 [1931] provides, in pertinent part: "In a case wherein there is judgment or decree on behalf of the State for costs, there shall be taxed in the costs ... the fees of attorneys and other officers for services, ..., as if such fees ... were payable out of the treasury...." S.S. & I. emphasizes the last clause as a limit on the State's recovery.
[12] W.Va.Code, 29-21-14(b)(1)-(2) [1981]. Itemization thereunder is to the nearest quarter-hour.
[13] The language of W.Va.R.App.P. 23(b) reads as follows: "In cases involving the State of West Virginia or an agency or officer thereof, if an award of costs against the State is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the State."
[14] W.Va.Code, 53-1-8 [1933], applicable to both mandamus and prohibition proceedings, authorizes an award of either of these types of writs with or without costs as the court or judge may determine. W.Va.R.App.P. 23(b), however, discussed in the text supra, precludes an award of costs to the State in this Court. This Court's procedural rule, to the extent it conflicts with the procedural statute, supersedes the statute. See W.Va.R.App.P. 1(a); W.Va.Code, 51-1-4 [1935]; Perlick & Co. v. Lakeview Creditor's Trustee Committee, ___ W.Va. ___, ___, 298 S.E.2d 228, 235 (1982).
[15] The current annual salary of the Attorney General is $50,400. W.Va.Code, 6-7-2 [1984].
[16] One obvious difference between the prior and the present versions of W.Va. Const. art. VII, § 19 is that the latter prohibits supplementation of the officers' salaries regardless of whether the source of the supplementation is the State treasury. Compare State ex rel. Barrett v. Boeckler Lumber Co., 302 Mo. 187, 206-07, 257 S.W. 453, 456 (1924) (prohibiting supplementation by receipt of fees from losing party; same constitutional language as in present W.Va. Const. art. VII, § 19), with Thon v. Commonwealth, 77 Va. 289 (1883) (statute restricting Attorney General's remuneration to salary without "further compensation" refers only to salaries payable out of State treasury and not to fees taxed in costs).
[17] W.Va.Code, 5-3-5 [1931] provides for inclusion of the Attorney General's fee, that is, the nominal statutory attorney fee, in the costs of a proceeding in which he appeared for the State. But see n. 14, supra. We also note, for example, W.Va.Code, 46A-7-104(2) [1974], in which the Attorney General may, in certain circumstances, under his administration of the West Virginia Consumer Credit and Protection Act, require a person being investigated outside this State to pay the reasonable and necessary expenses of the Attorney General or his representative. This type of statute is not before us and we express no opinion on the validity thereof.
[18] Under W.Va.Code, 5-3-3 [1961], assistant attorneys general may receive compensation from the State treasury for services performed for the State only "within the limits of the amounts appropriated by the legislature for personal services."
[19] W.Va. Const. art. III, § 16. See generally Webb v. Fury, ___ W.Va. ___, 282 S.E.2d 28 (1981).
[20] W.Va. Const. art. III, § 17. See generally Nagy v. Oakley, ___ W.Va. ___, 309 S.E.2d 68 (1983).
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333 S.E.2d 701 (1985)
STATE of North Carolina
v.
Supora WELDON.
No. 12PA84.
Supreme Court of North Carolina.
September 5, 1985.
*702 Rufus L. Edmisten, Atty. Gen. by George W. Lennon, Asst. Atty. Gen., Raleigh, for the state.
Adam Stein, Appellate Defender by Lorinzo L. Joyner and Gordon Widenhouse, Asst. Appellate Defenders, Raleigh, for defendant-appellant.
EXUM, Justice.
This case presents two dispositive issues: (1) Whether the trial court erred in admitting evidence that on two occasions other than that for which defendant was convicted, police found heroin in or near defendant's house; and (2) whether the trial court erred in admitting the testimony of police officers that defendant's house had a reputation as a place where illegal drugs were bought and sold? We answer the first question no and the second yes. However, finding this latter error to be harmless, we affirm the decision of the Court of Appeals.
I.
Defendant was arrested and charged with trafficking in heroin on 8 February 1982 after police, armed with a search warrant, discovered thirty (30) bindles (6.1 grams) of heroin hidden beneath a pile of clothing in defendant's living room. Police obtained the search warrant after an informant advised them that he observed a sale of heroin at defendant's house earlier in the day. In addition to the heroin, police found $449 in cash on defendant's person.
Defendant shared the house, which was leased solely to her, with a boyfriend, four adult children, a teenaged daughter and a nephew. Friends of defendant's adult children habitually congregated to drink alcoholic beverages beside a large oil drum which stood in front of defendant's house and in which a fire was maintained in cold weather.
At trial, police officers were allowed to testify over objection that defendant's house had a reputation as a place where illegal drugs could be bought or sold. Police also testified that on two other occasions, a search of defendant's house led to the discovery of heroin. On 9 December 1981, police discovered a number of bags of heroin beneath a sofa on which defendant was seated with two other people. On a table in front of defendant police on this occasion also found two bags of marijuana, a needle and syringe, and $648. On 30 May 1982, police discovered heroin under a garbage container five feet from the rear door of defendant's house and found approximately $200 on defendant's person.
Defendant testified in her defense. She denied knowing to whom the heroin belonged or how it got into her house. She also testified that on 8 February she had $449 in cash because she had recently received her government fuel assistance check for almost $200, a Social Security check for her grandson for $239; and her daughter had given her $25 to pay off a parking ticket.
II.
In her first assignment of error, defendant contends the trial court erred in allowing police officers to testify about their discoveries at defendant's premises on two occasions other than the one for which defendant was on trial. Defendant contends this testimony amounted to evidence that defendant committed other distinct crimes and was therefore inadmissible.
To convict defendant of trafficking in heroin, a violation of N.C.G.S. 90-95(h)(4)a, the state was required to prove that defendant knowingly possessed the 6.1 grams of heroin found in her house on 8 February 1982. "Felonious possession of a controlled substance has two essential elements. The substance must be possessed, and the substance must be knowingly possessed." State v. Rogers, 32 N.C.App. 274, 278, 231 S.E.2d 919, 922 (1977). "An accused's possession of narcotics may be actual or constructive. He has possession of the contraband material ... when he has both the power and intent to control its disposition or use." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "The requirements of power and intent necessarily imply that a defendant must be *703 aware of the presence of an illegal drug if he is to be convicted of possessing it." State v. Davis, 20 N.C.App. 191, 192, 201 S.E.2d 61, 62 (1973), disc. rev. denied, 284 N.C. 618, 202 S.E.2d 274 (1974). "When such materials are found on the premises under the control of the accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." State v. Harvey, 281 N.C. at 12, 187 S.E.2d at 714.
Defendant here did not deny that the heroin was found on her premises on all three occasions. She does not contest the sufficiency of the evidence. Her entire defense was directed toward persuading the jury that she had no knowledge of the presence of the heroin and, in the words of her brief, "would not knowingly allow anyone to use drugs in her house."
The Court of Appeals, in upholding the trial court's admission of the contested evidence, said: "The evidence complained of was expressly offered by the state to show defendant's `guilty knowledge' of the presence and character of the drugs found during the February 1982 search." 65 N.C. App. at 378, 309 S.E.2d at 265. The Court of Appeals concluded that evidence of other discoveries of heroin at defendant's house was relevant to the issue of defendant's guilty knowledge.
The well-established rule in North Carolina is that evidence of other crimes is generally inadmissible on the issue of guilt if its only relevance is to show defendant's bad character or disposition to commit an offense similar to the one charged. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). McClain also teaches, however, as defendant acknowledges, that the general rule prohibiting admission of "other crimes" evidence does have exceptions. See State v. McClain, 240 N.C. at 174-76, 81 S.E.2d at 366-68. Two of those exceptions, held applicable to the present case by the Court of Appeals, were discussed by this Court in State v. Willis, 309 N.C. 451, 456, 306 S.E.2d 779, 782-83 (1983):
The rule in McClain establishes that evidence of other crimes is inadmissible if its only relevance is to show the character of the accused. The exceptions to this rule of inadmissibility, also set out in McClain, are as well established as the rule itself. Two of these exceptions read as follows:
2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused....
3. Where guilty knowledge is an essential element of the crime charged evidence may be offered of such acts or declarations of the accused as tend to establish the requisite guilty knowledge, even though the evidence reveals the commission of another offense by the accused.... 240 N.C. at 175 [81 S.E.2d 364].
Defendant contends that notwithstanding these exceptions, admission of the disputed evidence in this case was error because there is no direct evidence linking defendant to commission of the other crimes offered by the state to show guilty knowledge. Where "other crimes" evidence does not sufficiently connect defendant to the other crimes, it is not admissible for any purpose, defendant argues.
Defendant relies heavily upon State v. Breeden, 306 N.C. 533, 293 S.E.2d 788 (1982). In Breeden, defendant was being tried for the armed robbery of Horne's Grocery and Package Store on Person Street in Fayetteville. The evidence tended to show that defendant and an accomplice entered the store, wearing ski-type masks and, at gunpoint, took money from the cash register and personal items from two employees and two customers. Three of the victims identified defendant as one of the perpetrators. As further evidence of defendant's identity, the state sought to offer evidence which it contended tended to show *704 that defendant and his accomplice had within fourteen hours of the grocery store robbery also robbed a Wiener King located approximately 100 yards from the grocery store. The state contended that the two robberies were so similar that the jury could infer both offenses were committed by the same persons; therefore evidence that defendant had committed the Wiener King robbery tended to prove that he also committed the grocery store robbery. Further the state argued that the evidence tended to show that both robberies were the product of a common scheme or plan; therefore evidence that defendant committed one tended to show that he also committed the other.
The witness to the Wiener King robbery, Thomas Odom, was not able positively to identify defendant as one of the two robbers of that establishment. He testified to certain circumstances which tended to indicate that defendant might have been one of the robbers but as this Court noted there was "no direct evidence that defendant was one of the two men who robbed the Wiener King." 306 N.C. at 536, 293 S.E.2d at 791. This Court concluded, therefore, that evidence of the "other crime" was not admissible on the issue of identification. The Court said, "Had the defendant been identified as one of the participants in the Wiener King robbery, the evidence of that crime would have been admissible here on the issue of identification ... but the failure to identify defendant as a participant in the Wiener King robbery ... makes the evidence inadmissible...." 306 N.C. at 537, 293 S.E.2d at 791.
Defendant argues the evidence offered by the state in this case to show her guilty knowledge suffers from the same fatal flaw as that offered in Breeden to show identity. She says there is no direct evidence that she knowingly possessed the contraband on the other occasions and the evidence relating to these other occasions is at best circumstantial on the issue of her guilt of these other possessions, like it was in Breeden.
Defendant fails to appreciate the difference between the theories upon which admissibility of the evidence rested in Breeden and the theory upon which it rests in the instant case. In Breeden one theory of admissibility was that defendant allegedly had committed two crimes under circumstances so similar that evidence of defendant's commission of one tended to show that he also committed the other. The other theory was that the evidence tended to show that both crimes arose out of a common plan or scheme; therefore evidence that defendant committed the other crime tends to prove that he committed the crime charged. In Breeden, therefore, admissibility under both theories rested on proving that defendant did, in fact, commit the other crimes.
In the instant case admissibility of evidence of the discovery of other controlled substances on other occasions on defendant's premises rests on an entirely different theory. At issue here is not defendant's identity. At issue is her guilty knowledge. Guilty knowledge, being a state of mind, is almost never provable by direct evidence. Its existence almost always must be proved, if at all, by circumstantial evidence. Thus "[w]here guilty knowledge is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite guilty knowledge, even though the evidence reveals the commission of another offense by the accused." State v. McClain, 240 N.C. at 175, 81 S.E.2d at 367 (emphasis added). Any fact or facts tending to prove defendant's guilty knowledge may be offered against defendant when guilty knowledge is, as here, an issue in the case. Such facts may or may not show that defendant is guilty of another crime. Obviously such a showing is not prerequisite to admissibility. The only prerequisite to admissibility is that the evidence be probative on the question of defendant's guilty knowledge.
The challenged evidence is probative of defendant's guilty knowledge in connection with the crime for which she was being *705 tried. The evidence was that on two separate occasions, one occurring before defendant's arrest on the present charge and one after, police discovered heroin in or near defendant's house. On one occasion the heroin was in close proximity to defendant, as were marijuana and drug paraphernalia. On both occasions defendant had relatively large amounts of cash on her person as she did on the occasion for which she was being tried. Defendant's protestations of lack of knowledge of the drugs at her premises and her statement that she would never knowingly allow anyone to possess drugs on her premises are rendered considerably less credible as the instances of the discovery of drugs there accumulate. Likewise, the credibility of her excuse for having a large sum of money on the occasion for which she was tried also loses weight before the trier of fact in the face of evidence that on two other occasions both drugs on defendant's premises and large amounts of cash on her person coexisted. Her testimony denying her knowledge and justifying the money might be believable once; but a jury may justifiably conclude that, as in baseball, three strikes and the defendant is out. The challenged evidence, in other words, tends strongly to negate defendant's claim that she was unaware of the presence at her premises of that heroin which is the basis for the trafficking charge. The evidence is strongly probative on the major contested issue in the case, defendant's guilty knowledge.
We take this opportunity, however, to correct a misstatement of the law occurring in the Court of Appeals' opinion. In its discussion of the exception to the prohibition of "other crimes" evidence stated in State v. McClain, 240 N.C. 171, 81 S.E.2d 364, the Court of Appeals said: "On drug cases, however, `evidence of other drug violations is relevant and admissible if it tends to show plan or scheme, disposition to deal in illicit drugs, knowledge of the presence and character of the drug, or presence at and possession of the premises where the drugs are found.' State v. Richardson, 36 N.C.App. 373, 375, 243 S.E.2d 918, 919 (1978)." (Emphasis added.) In State v. Willis, 309 N.C. 451, 306 S.E.2d 779 (1983), this Court expressly disapproved that portion of the Richardson language quoted above allowing admission of evidence of other drug offenses to show "disposition to deal in illicit drugs." We note, as we did in Willis, that the Court of Appeals itself disapproved this language and declared it dictum in State v. Bean, 55 N.C.App. 247, 284 S.E.2d 760 (1981). We now reiterate our disapproval of this language.
The validity of the Court of Appeals' decision is not affected by inclusion of this language since the court correctly identified a permissible purpose for which the disputed evidence in this case was admitted, i.e., to show defendant's guilty knowledge.
III.
Defendant next contends that the trial court erred in admitting evidence that defendant's house had a reputation as a place where heroin and other illegal drugs could be bought or sold. We agree. The applicable general rule is that in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay. State v. Springs, 184 N.C. 768, 114 S.E. 851 (1922). The Court of Appeals held, however, that "evidence concerning the reputation of a place or neighborhood is admissible where it goes to show the intent of the person charged," 65 N.C.App. at 379, 309 S.E.2d at 265, citing State v. Lee, 51 N.C.App. 344, 276 S.E.2d 501 (1981).
In Lee, defendant was charged with felonious possession of a controlled substance. The evidence tended to show that defendant presented a forged prescription to a pharmacist for Talwin, a controlled substance. Defendant testified at trial that a woman he knew as Katie Cummings gave him the prescription and asked him to get it filled. The Katie Cummings who lived at the address shown on the prescription did not know defendant and had never given *706 him a prescription in her name. Defendant denied knowing the prescription was forged or that Talwin was a controlled substance. The state was allowed to introduce evidence that the area where defendant claimed he received the prescription from Katie Cummings was known as a "drug-use" area. On appeal, the Court of Appeals noted the general rule prohibiting the admission of such evidence. It held, however, that the evidence was admissible to refute defendant's claim of ignorance regarding the forged prescription and the nature of the drug he sought to acquire. The Court of Appeals supported this result by citing, without discussion, State v. Chisenhall, 106 N.C. 676, 11 S.E. 518 (1890).
An examination of Chisenhall leads us to conclude that the Court of Appeals' reliance upon it in Lee, and therefore its reliance upon Lee in the present case, was misplaced. In Chisenhall, defendant was charged with abduction of defendant's 13-year-old sister in violation of what is now codified as N.C.G.S. § 14-41. The statute makes it a crime for anyone to "induce a child under the age of fourteen years ... to leave" a person with whom or school where the child "resides." Although the statute does not require "that the abduction... be with a particular intent ...," id. at 682, 11 S.E. at 520, the state's theory was that Chisenhall's motive in abducting her sister was to take her to a house of prostitution. The state offered in evidence Chisenhall's out-of-court declaration that: one Mag Bush had requested Chisenhall to bring her sister to Mag Bush's house; Chisenhall did so in response to the request; and Chisenhall "knew the character of Mag's house and it was a `whore-house.'" The state also offered evidence from another witness that Mag Bush's house had a reputation as a house of prostitution.
The Court in Chisenhall first concluded that there was no error in offering defendant's out-of-court declaration against her. In finding no error in the admission of the testimony as to the reputation of Mag Bush's house, the Court said:
It is also objected that the court erred in allowing a witness to testify as to the general reputation of Mag Bush's house. Such evidence is held to be admissible in Connecticut, even against a defendant charged with the keeping of a house of ill-fame. Cadwell v. State, 17 Conn. 467. Such is not, however, the law in this State, but we think it competent when the character of the house is only collaterally involved, and is attended with evidence of scienter, on the part of the defendant, and is only used for the purpose of showing the intent with which an act is done, as, in this case, to show that the defendant's object was to prostitute the child. Moreover, the defendant could not have been prejudiced by the evidence, as it was shown by her own declaration that Mag Bush was a common prostitute and kept a house of prostitution. Besides, it was unnecessary for the State to have shown the intent of the defendant. There is nothing in our statute which requires that the abduction should be with a particular intent. It is only necessary to allege and prove that the child was abducted, or by any means induced "to leave" its custodian. We think the exception is without merit.
Id. at 681-82, 11 S.E. at 520.
Chisenhall does not hold that the reputation of a place is admissible to show the intent or guilty knowledge of one charged with illicit possession of contraband in that place. Chisenhall expressly recognized that the law in North Carolina did not permit evidence of a place's reputation to be admitted against a defendant charged with maintaining the place as a house of prostitution. Chisenhall held only that in light of competent evidence that defendant said she knew the place where she took her sister to be a brothel, it was permissible on the question of defendant's motive, which was not an element of the crime, to show the place did have such a reputation. The great bulk of the quoted passage from Chisenhall demonstrates why the reputation evidence was not prejudicial to defendant in that case. In any event, insofar as Chisenhall holds that such reputation evidence *707 is competent, the holding should be limited to the particular theory which the Court enunciated in light of the peculiar facts of the case.
The general rule in this state may be found in State v. Tessnear, 265 N.C. 319, 144 S.E.2d 43 (1965), a case indistinguishable in principle from the instant case. In Tessnear, defendant was charged with possession of non-taxpaid liquor after officers discovered numerous containers of liquor in defendant's home. The defense was that the liquor belonged to someone else who, unbeknownst to defendant, had placed it in defendant's home moments before the officers seized it. Police had observed the house, noting large amounts of traffic to and from the residence, and had arrested several intoxicated persons as they left defendant's house. At trial, several of the state's witnesses testified that defendant's house had the reputation of having whiskey for sale. This Court held the admission of that evidence error and granted defendant a new trial. It said, "North Carolina is included among those jurisdictions which hold `that evidence of the general reputation of defendant's premises is inadmissible in prosecutions for liquor law violations involving a charge of unlawful sale or possession of intoxicants at particular premises.'" Id. at 322, 144 S.E.2d at 46. The same rule is articulated in a number of our cases involving violations of the state's liquor laws. See, State v. Turpin, 203 N.C. 11, 164 S.E. 926 (1932); State v. Springs, 184 N.C. 768, 114 S.E. 851 (1922); State v. McNeill, 182 N.C. 855, 109 S.E. 84 (1921).
We perceive no factual distinctions between violations of the state's liquor laws and our drug laws which would justify application of a different rule. We therefore hold that the trial court erred in admitting at defendant's trial for trafficking in heroin evidence that defendant's house had a reputation as a place where illegal drugs could be bought and sold.
We conclude, however, that the error is not such as to warrant a new trial. Trial errors not amounting to constitutional violations do not warrant awarding a new trial unless "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial...." N.C.G.S. 15A-1443. Erroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the state's primary contentions, State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965), or where there is overwhelming evidence of defendant's guilt. State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972); State v. Cox, 281 N.C. 275, 188 S.E.2d 356 (1972). Moreover, the admission of testimony over objection may be harmless where defendant elicits similar testimony on cross-examination. State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Brown, 272 N.C. 512, 158 S.E.2d 354 (1968).
In the instant case, the state offered abundant evidence of defendant's guilt. The house in which 30 bindles of heroin were discovered was leased solely to defendant. Defendant testified that she had control of the house. Police informants observed a heroin sale take place at defendant's home on the day of her arrest. Defendant admitted that her house was a place where many friends of her adult children congregated and that heroin had been discovered by police at the house on two other occasions. On one of these occasions the heroin was beneath a sofa where defendant sat and in front of which on a table were marijuana, drug paraphernalia and a large amount of cash. Although defendant testified that she had no regular employment, she had large sums of money either on her person or in close proximity to her both on the night of her arrest and the two other occasions on which police discovered heroin at her home. We do not believe it can be said that, absent the admission of the disputed reputation evidence, a different result would have likely ensued. State v. Jones, 278 N.C. 259, 179 S.E.2d 433 (1971).
*708 Moreover, on cross-examination of one of the state's witnesses who had testified about the reputation of defendant's house, defendant asked, "You only knowyou do not know the reputation of the house when she (defendant) is there, do you?" The witness's response was, "The information that I received would indicate that her reputation, as well as the reputation of the house, is related to the sale and use of illegal drugs." The effect of this question was that defense counsel put before the jury the very reputation evidence which he contends was prejudicially admitted when offered by the state. Introduction of this evidence by the state was, therefore, made harmless by the defendant's solicitation of the same evidence on cross-examination.
The decision of the Court of Appeals is
AFFIRMED.
BILLINGS, J., did not participate in the consideration or decision of this case.
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851 P.2d 595 (1993)
316 Or. 374
ROSEBURG SCHOOL DISTRICT, a local government unit; G & I Investments, an Oregon Partnership; Horizon Motors, Inc., an Oregon corporation, dba Horizon Mazda; Rapat, Inc., an Oregon corporation, dba Douglas Inn; Parkway Holdings, Inc., an Oregon corporation, dba Parkway Ford; Parkway Holdings, Inc., an Oregon corporation, dba Parkway Nissan; Jack Mathis General Contractors, Inc., an Oregon corporation; Paul Jackson Wholesale Co., Inc., an Oregon corporation; Roseburg Lumber Co., an Oregon corporation; Roseburg Resources Co., an Oregon corporation; Old School Offices, Inc., an Oregon corporation; and One Champion Plaza, Inc., an Oregon corporation, Respondents,
v.
CITY OF ROSEBURG, an Oregon city, Appellant.
OTC 3242; SC S39874.
Supreme Court of Oregon, In Banc.
Argued and Submitted March 16, 1993.
Decided May 21, 1993.
*596 William F. Gary of Harrang, Long, Watkinson, Laird & Rubenstein, P.C, Eugene, argued the cause for appellant. With him on the briefs was Glenn Klein.
Joel S. DeVore of Luvaas, Cobb, Richards & Fraser, P.C, Eugene, argued the cause and filed the brief for respondents.
David B. Frohnmayer, Eugene, Daniel Olsen, Hillsboro, Thomas Sponsler, Gresham, and James Coleman, Portland, filed a brief for amici curiae League of Oregon Cities and Ass'n of Oregon Counties.
Matthew R. Baines, Gresham, Jan L. Betz, Portland, Michael E. Kohlhoff, Wilsonville, and Loretta Skurdahl, Hillsboro, filed a brief for amicus curiae Oregon Ass'n of Clean Water Agencies.
E. Andrew Jordan of Tarlow, Jordan & Schrader, Portland, filed a brief for amicus curiae Special Districts Ass'n of Oregon.
UNIS, Justice.
The issue in this case is whether a storm drainage utility fee of the City of Roseburg (City) is a "tax on property" that is subject to the limitations of Article XI, section lib, of the Oregon Constitution, adopted in 1990 by an initiative petition commonly known as "Ballot Measure 5."
Roseburg School District and interested taxpayers (taxpayers) filed a petition under ORS 305.583, asking the Oregon Tax Court (Tax Court) to declare that City's storm drainage utility fee is a tax subject to the limitations of Article XI, section lib, of the Oregon Constitution. Both parties filed motions for summary judgment. The Tax Court entered a summary judgment for taxpayers. Roseburg School Dist. v. City of Roseburg, 12 OTR 329 (1992).
On review under ORS 305.445, we hold that City's storm drainage utility fee is not a tax on property that is subject to the limitations of Article XI, section lib, of the Oregon Constitution. Accordingly, we reverse the judgment of the Tax Court and remand this case to the Tax Court with instructions to enter summary judgment for City.
The current version of City's storm drainage utility fee at issue provides in part:
"A. Except as the fees may be reduced or eliminated under Subsection 5.40.050E, the obligation to pay storm *597 drainage fees arises when a person responsible uses storm drainage services. It is presumed that storm drainage services are used whenever there is an improved premises.
"B. Unless another person responsible has agreed in writing to pay and a copy of that writing is filed with the city, the person(s) paying the city's water utility charges shall pay the storm drainage fees set by Council resolution. If there is no water service to the property or if water service is discontinued, the storm drainage fees shall be paid by the person(s) having the right to occupy the property." RMC 5.40.050 (as amended by Roseburg Ordinance 2803 at 1-2 (July 15, 1992)).[1]
Article XI, section lib, of the Oregon Constitution is a limitation on taxes.[2] Article XI, section 11b(2)(b), defines a "tax" as
"any charge imposed by a governmental unit upon property or upon a property owner as a direct consequence of ownership of that property except incurred charges and assessments for local improvements."[3] (Emphasis added.)
Our task is to determine whether the storm drainage utility fee in Roseburg Municipal Code (RMC) 5.40.050 is a tax within the meaning of Article XI, section lib.
In interpreting a constitutional provision adopted through the initiative process, our task is to discern the intent of the voters. The best evidence of the voters' intent is the text of the provision itself. Comeaux v. Water Wonderland Improvement Dist, 315 Or. 562, 568-69, 847 P.2d 841 (1993); Northwest Natural Gas Co. v. Frank, 293 Or. 374, 381, 648 P.2d 1284 (1982).[4] The context of the language of the ballot measure may also be considered; however, if the intent is clear based on the text and context of the constitutional provision, the court does not look further. See, e.g., Comeaux v. Water Wonderland Improvement Dist, supra, 315 Or. at 569, 570, 847 P.2d 841 (meaning of phrase "governmental unit" in Ballot Measure 5 determined based on text and context of amendment).[5]
The specific question in this case is whether City's storm drainage utility fee is a tax under Article XI, section 11b(2)(b), i.e., whether it is a "charge imposed by a governmental unit upon property or upon a property owner as a direct consequence of ownership of that property." There is no dispute in this case that there was a charge by a governmental unit. The dispute centers around whether the charge either was "imposed * * * upon property" or was "imposed * * * upon a property owner as a *598 direct consequence of ownership of that property."
The verb "impose" suggests more than a request for voluntary compliance, and the phrase "impose upon" carries even stronger force.[6] A charge is imposed upon property or upon a property owner and is a tax under Article XI, section 11b(2)(b), if payment of the charge is a legal obligation of that property or property owner as a direct consequence of property ownership.[7]
In this case, City structured the storm drainage utility fee in an effort to avoid the limitations of Ballot Measure 5.[8] The charge in question is intended as "a fee for service and not a charge against property," Roseburg Ordinance 2755, Section 1(3) (June 10, 1991), and Chapter 5.40 of the RMC is to be construed in accordance with that intent, id., Section 2. Under the RMC, the person responsible for paying City's water utility charges for a particular piece of property is responsible for paying the storm drainage utility fee. RMC 5.40.050B.[9] Thus, the fee is not necessarily imposed on the owner, who may not be the occupier of the property and responsible for its water usage.
RMC 5.40.070 [10] provides that, "[i]n addition to other lawful remedies, the city manager may enforce the collection of charges required by this chapter by withholding delivery of water to any premises where the storm drain utility charges are delinquent or unpaid," but no provision is made for the charge to become a lien against the property, as is the case, for example, with respect to the systems development charge in RMC 5.40.080.[11] RMC 5.40.090[12] provides that a "[r]equest for water service will automatically initiate appropriate billing for storm drainage services as established in this chapter."
Although they relate to real property, City's fees for storm drainage services are *599 not imposed upon real property. There is no provision for attaching a lien against the property for non-payment of the fee, so it appears that the property itself cannot be encumbered by City as a result of nonpayment of the fee. Neither are City's fees for storm drainage services imposed upon the owner of real property as a direct consequence of ownership. Although some property owners may be responsible for paying the fee, the fee is not imposed upon property owners because of their ownership of the property, but instead is imposed upon the user of the water service or upon the person with the right of occupancy, whoever that may be.[13] Moreover, under the RMC, "a person responsible [who may be the owner, but also may be someone else] may seek a reduction or elimination of the monthly charge for storm drainage service" by demonstrating that the service is not being used. RMC 5.40.050E.[14]
By its terms, Article XI, section lib, is a limitation on only those certain forms of revenue generation that fall within its definitions. It is not a limitation on other forms of revenue generation that do not fall within its definitions. It is clear that the constitutional provision defines those charges that it limits and, by its terms, excludes from its limits other forms of revenue generation, including income taxes, sales taxes, and any other charges not imposed upon property or upon property owners as a direct consequence of property ownership. The charge at issue in this case meets neither criterion and, therefore, is not a tax within the meaning of Article XI, section lib.[15]
The judgment of the Oregon Tax Court is reversed. The case is remanded to the Oregon Tax Court with instructions to enter summary judgment for the City of Roseburg.
NOTES
[1] Before the July 15, 1992, amendments, Roseburg Municipal Code 5.40.050 provided in part:
"Except as the fees may be reduced under subsection 5.40.050D, the obligation to pay storm drainage fees arisefs] whenever there is an improved premises. Unless another person responsible has agreed in writing to pay and a copy of that writing is filed with the city, the person(s) paying the city's water utility charges shall pay the storm drainage fees set by council resolution. If there is no water service to the property or if water service is discontinued, the storm drainage fees shall be paid by the person(s) having the right to possess the property." RMC 5.40.050A (as amended by Roseburg Ordinance 2755 at 6 (June 10, 1991)).
Although taxpayers have challenged both versions of the storm drainage utility fee, the differences between the two versions do not require separate analyses in this case.
[2] See ORS 310.140 (codifying legislative interpretations of certain terms in Article XI, section lib, of the Oregon Constitution).
[3] Article XI, section 11b(2)(c) defines "incurred charges," and Article XI, section 11b(2)(d) defines "local improvement." Neither term is relevant to this opinion.
[4] The text of a document must always be the starting point in any interpretative endeavor. See State ex rel. Juv. Dept. v. Ashley, 312 Or. 169, 174, 818 P.2d 1270 (1991) (stating rule with respect to statutes); id. at 185, 818 P.2d 1270 (Unis, J., dissenting) (same); Perlenfein and Perlenfein, 316 Or. 16, 20, 848 P.2d 604 (1993) (stating rule with respect to statutes and regulations).
[5] The same is true with respect to interpreting statutes, see, e.g., Boone v. Wright, 314 Or. 135, 138-39, 836 P.2d 727 (1992) (applying rule), and with respect to regulations, see, e.g., Perlenfein and Perlenfein, supra, note 4 (meaning of administrative rules determined based on text and context of those rules).
[6] The Random House Dictionary of the English Language 962 (unabridged 2d ed 1987) includes the following definitions of the verb "impose":
"1. to lay on or set as something to be borne, endured, obeyed, fulfilled, paid, etc.: to impose taxes. * * * 12. impose on or upon, a. to thrust oneself offensively upon others; intrude, b. to take unfair advantage of; misuse (influence, friendship, etc.). c. to defraud; cheat; deceive * * *." (Emphasis in original.)
Webster's Third New International Dictionary 1136 (unabridged 1976) includes the following definitions of the verb "impose":
"1. obs: charge, impute 2: to give or bestow (as a name or title) authoritatively or officially 3 a obs: to cause to be burdened * * * b(1): to make, frame, or apply (as a charge, tax, obligation, rule, penalty) as compulsory, obligatory, or enforcible * * *impose on or impose upon 1 a: to force oneself esp. obnoxiously on (others) * * *." (Emphasis in original.)
[7] By contrast, the fact that a person is allowed to pay or actually has paid a charge, with no legal obligation to do so, cannot be the basis for determining that the charge is imposed on that person. If that were the basis for the determination, it would be impossible to determine in advance of payment on whom the charge is imposed, and the task of determining whether a charge is a tax could be done only on a case-by-case basis after payment had been received.
[8] The 1992 ordinance adopting the amendments to RMC Chapter 5.40 include this finding:
"If the City continued its practice before the enactment of Chapter 5.40 of the Roseburg Municipal Code (RMC) in 1989, the owners of all taxable property within the City would be bearing the burden of storm drainage services through general property taxes when it is more equitable to have those who use storm drainage services or create the demand for such service, including but not limited to developed property exempt from ad valorem taxes, bear the cost of such service." Roseburg Ordinance 2803, Finding B (July 15, 1992).
Section 4 of that ordinance also provides: `The Council hereby classifies the fees imposed by this ordinance a fee not subject to the limits of section lib. Article XI of the Oregon Constitution. The City Manager is directed to publish notice of this classification as required by ORS 305.583(8)."
[9] This is true both under RMC 5.40.050, as amended by Roseburg Ordinance 2755 at 6 (June 10, 1991), quoted supra, 316 Or. at 377 n. 1, 851 P.2d at 597 n. 1, and under RMC 5.40.050B, as amended by Roseburg Ordinance 2803 at 1-2 (July 15, 1992), quoted supra, 316 Or. at 377, 851 P.2d at 597.
[10] RMC 5.40.070 was not amended by the July 15, 1992, ordinance.
[11] RMC 5.40.080 was not amended by the July 15, 1992, ordinance.
[12] RMC 5.40.090 was not amended by the July 15, 1992, ordinance.
[13] City represented in oral argument, and we accept, that if the person responsible for a delinquent water bill that has resulted in delivery of water being withheld leaves the premises and a new occupant enters, water services would be restored on request with no consequence to a new occupant or to the property owner as a result of the prior person's delinquency.
[14] RMC 5.40.050E was renumbered by the July 15, 1992, amendment; the phrase "or elimination" was also added, and other changes were made in accordance with that change. The changes do not affect our analysis.
[15] Because we hold that the storm drainage utility fee is not a tax within the meaning of that term in Article XI, section lib, of the Oregon Constitution, we need not and do not consider the exceptions to the meaning of the term "tax" in Article XI, section 11b(2)(b).
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333 S.E.2d 333 (1985)
Dr. Terry C. CLAYCOMB
v.
HCA-RALEIGH COMMUNITY HOSPITAL.
No. 8410SC1322.
Court of Appeals of North Carolina.
August 20, 1985.
*334 J. Melville Broughton, Jr., and William Woodward Webb, Raleigh, for plaintiff-appellant.
Jordan, Brown, Price & Wall by John R. Jordan, Jr., and Joseph E. Wall, Raleigh, for defendant-appellee.
COZORT, Judge.
The question raised by this appeal concerns whether G.S. 131-126.11A, recodified at G.S. 131E-85, requires a privately owned hospital to review the qualifications of a podiatrist applying for staff privileges even though the hospital administration has decided to close the medical staff to additional podiatrists. The trial court ruled that G.S. 131-126.11A confers no right to a practitioner to have his application for staff privileges reviewed and dismissed this action for lack of subject matter jurisdiction.
The facts underlying the present controversy are as follows: On 31 July 1979, the Board of Trustees of the defendant hospital decided to close the medical staff to podiatrists. The hospital at the time had extended staff privileges to one podiatrist. The Board's decision was based on the determination that the services of one podiatrist were adequate to meet the hospital's commitment to meet the podiatric needs of the community.
On 30 November 1979, the plaintiff podiatrist, Dr. Terry C. Claycomb, applied for staff privileges at the defendant hospital. Because the medical staff was closed to additional podiatrists, Dr. Claycomb's application was not accepted for processing though it remained on file.
In 1981, the General Assembly enacted the Hospital Licensing Act and in pertinent part provided:
*335 The granting or denial of privileges to practice in hospitals to licensed physicians and other practitioners licensed by the State of North Carolina to practice surgery on human beings, and the scope and conditions of such privileges, shall be determined by the governing body of the hospital based upon the applicant's education, training, experience, demonstrated competence and ability, judgment, character and the reasonable objectives and regulations of the hospital in which such privileges are sought. Nothing in this Article shall be deemed to mandate hospitals to grant or deny to any parties privileges to practice in said hospitals.
G.S. 131-126.11A (1981). This Act was repealed by Session Laws 1983, c. 775, s. 1, effective 1 January 1984, and replaced by the Hospital Licensure Act, G.S. 131E-75, et seq. The corresponding statute, G.S. 131E-85, differs from the repealed statute, G.S. 131-126.11A, by specifically extending its application to "physicians ... dentists and podiatrists" rather than generally to "licensed physicians and other practitioners."
Following the passage of G.S. 131-126.11A, Dr. Claycomb renewed his application for staff privileges with the defendant hospital. By this time, the Board of Trustees had also adopted a three-year residency requirement for all users of the hospital's operating rooms, including podiatrists. By letter in October of 1982, the plaintiff was informed that the medical staff was still closed to podiatrists and that in any event the hospital required a three-year surgical residence by podiatric applicants. In May of 1983, the plaintiff again attempted to obtain staff privileges but learned that his application had never been processed and that he had no right of appeal or right to a hearing on the hospital's decision not to review his application.
Dr. Claycomb filed this action in August of 1983, seeking a declaratory judgment construing G.S. 131-126.11A, injunctive relief, and actual damages. Pursuant to the defendant's Rule 12(b)(6) motion, the plaintiff's claim for damages was dismissed on the grounds that it was barred by the statute of limitations, G.S. 1-52. Later, pursuant to the defendant's Rule 12(b)(1) motion, the plaintiff's remaining claims were dismissed on the grounds that the court lacked subject matter jurisdiction. The trial court concluded as a matter of law that the State had "no legitimate interest in the denial of medical staff privileges by a private hospital to any individual practitioner" and that G.S. 131-126.11A "does not mandate that a private hospital follow any particular procedure or reach any particular result as to an application for staff privileges."
The plaintiff on appeal contends that the police power of this State extends to the regulation of private hospitals, including the granting of staff privileges. The defendant argues that G.S. 131-126.11A does not impose a requirement that practitioners be granted privileges or even that their applications be reviewed, but merely establishes a framework to insure that if staff privileges are granted they are extended only to qualified practitioners.
In Cameron v. New Hanover Memorial Hospital, 58 N.C.App. 414, 449, 293 S.E.2d 901, 922, cert. denied, 307 N.C. 127, 297 S.E.2d 399 (1982), this Court, construing G.S. 131-126.11A, stated no court should substitute its judgment for that of the hospital board which is charged with the responsibility of providing a competent staff of doctors. The Cameron court further related that as long as staff selections were administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. Id. We believe these Cameron principles are applicable in the instant case.
Surely, the State has a legitimate interest in seeing the health, safety and general welfare of the public promoted and protected. A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979). Thus, the operation of a hospital, whether publicly or privately owned, is subject to State regulation. Foster v. Medical Care Commission, 283 N.C. 110, 195 S.E.2d 517 (1973). However, the State's *336 involvement in the operation of a hospital should extend only to the point of insuring that the community's medical needs are competently and sufficiently being met. As recognized in Cameron, the right to enjoy staff privileges is not absolute, but is subject to the standards and objections set by the hospital's governing body. Id. 58 N.C.App. at 453, 293 S.E.2d at 924. Therefore, we hold that G.S. 131-126.11A does not grant a medical practitioner the right to have his application for staff privileges considered by a hospital if the hospital's governing board has made a decision to deny further staff privilege requests which is reasonably related to the operation of the hospital, consistent with its responsibility as a community hospital, and administered fairly.
In the present case, the court below dismissed the action on the basis that it lacked subject matter jurisdiction over the complaint. We hold this ruling was in error. As a matter of procedure, the question of whether G.S. 131-126.11A confers a right upon the plaintiff to have his application considered is not an issue of subject matter jurisdiction, but involves whether the complaint states a claim upon which relief can be granted. See, generally, Dale v. Lattimore, 12 N.C.App. 348, 183 S.E.2d 417, cert. denied, 279 N.C. 619, 184 S.E.2d 113 (1971). Therefore, the granting of the defendant's Rule 12(b)(1) motion was improper.
In any event, the plaintiff's action should not have been dismissed, even on a proper Rule 12(b)(6) motion. Although G.S. 131-126.11A does not require that the plaintiff's qualifications for staff privileges be reviewed, it does require that the denial of those privileges be "based upon ... the reasonable objectives and regulations of the hospital." G.S. 131E-85. Thus, the statute does allow the reasonableness of a hospital's actions to be reviewed. Because North Carolina courts have been charged with this narrow responsibility of determining whether a hospital's actions and objectives are reasonable, Cameron, supra, 58 N.C.App. at 449, 293 S.E.2d at 922, we hold the complaint does state a claim upon which relief can be granted. We, therefore, reverse the trial court's conclusion of law that it lacked jurisdiction over the matter and remand this case for further proceedings not inconsistent with this opinion. The plaintiff will have the burden of proving that the hospital's conclusion that "the services of one podiatrist were adequate to meet ... the podiatric needs of the community" was arbitrary, capricious or discriminatory, and that its decision to close the medical staff to additional podiatrists was: (1) not reasonably related to the operation of the hospital; (2) not rationally compatible with the hospital's responsibility; or (3) based on irrelevant considerations. See Davidson v. Youngstown Hospital Assoc., 19 Ohio App.2d 246, 250 N.E.2d 892 (1969). If the defendant hospital's actions are determined to be unreasonable or irrational, the plaintiff is entitled under the statute to have his application for staff privileges reviewed and a decision, granting or denying him staff privileges, based on the other criteria provided in the statute such as his "education, training, experience, demonstrated competence and ... character." G.S. 131E-85.
Reversed and Remanded.
WELLS and JOHNSON, JJ., concur.
WELLS, Judge, concurring:
In my opinion, the important and dispositive question in this case is whether governing boards of licensed hospitals may deny staff privileges to licensed practitioners except upon finding that such practitioners applying for staff privileges do not meet the hospital's standards for "education, training, experience, demonstrated competence and ability, judgment, character, and the reasonable objectives and regulations of the hospital, including, but not limited to appropriate utilization of hospital facilities," see N.C.Gen.Stat. 131E-85A (1983 Cum.Supp.). Accordingly, appellant in this case is entitled to have his application considered against such standards.
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286 S.C. 343 (1985)
333 S.E.2d 360
FMI, INC., Respondent,
v.
RMAX, INC., Appellant.
0529
Court of Appeals of South Carolina.
Heard May 10, 1985.
Decided July 26, 1985.
*344 Larry D. Estridge, of Wyche, Burgess, Freeman & Parham, P.A., Greenville, for appellant.
T.S. Stern, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, of Greenville and Philip T. Lacy, Columbia, for respondent.
Heard May 10, 1985.
Decided July 26, 1985.
GARDNER, Judge:
This case involves a type action novel to this State but addressed by our Commercial Codes. It is a contract action under § 36-2-709, Code of Laws of South Carolina (1976). The jury returned a verdict for the plaintiff, FMI, Inc., (the seller). We affirm.
In pertinent part § 36-2-709 is as follows:
§ 36-2-709. Action for the price.
(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section (§ 36-2-710), the price
* * * * * *
(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
The situation before us involves a case in which the goods were identified to the contract and the question of whether the circumstances reasonably indicated that an effort to resell the goods would be unavailing.
The facts as adduced by the seller at the trial are briefly reviewed. Mr. Burton, president of the seller, testified that in August 1981 he met with the principals of RMAX, Inc., (the buyer). As a result of this meeting, notebook-size samples of a product wanted by the buyer were delivered to the buyer by the seller. The buyer desired to find a less expensive supplier *345 of glass felt used as a backing for building insulation board which the buyer manufactured. The price quoted by the seller was three cents per square yard, assuming the delivery of one million square feet per month. Thereafter, the buyer requested additional samples for further testing. The seller modified its machinery to produce the material which the buyer indicated it wanted to buy. After these modifications, the seller produced five sample rolls, four with asphalt and one with fiberglass and no asphalt. These samples differed greatly from the seller's normal roofing products. The five sample rolls were delivered to the buyer's plant. Some two or three weeks later, Mr. Van Zandt, an employee of the buyer, told the president of the seller that the product was great and said, "send me a truck load." There is also evidence of record that the buyer would need one million square feet per month, and that this amounted to a tractor trailer load if the material was stacked from the floor to the ceiling.
The buyer, according to the seller's testimony, indicated that the stock level of the material they had on hand and needed was very low and urged the seller to deliver as quickly as possible. The seller then began to manufacture the material found to be satisfactory when tested by the buyer. A partial shipment of the material was delivered to and accepted by the buyer and the seller manufactured the remaining part of one million square feet. The order for the partial delivery was acknowledged by the buyer and given a purchase order. The seller then invoiced the buyer; the invoice reflected that the balance of the order was 692,116 square feet, which together with that part of the goods previously delivered amounted to one million square feet. There is evidence of record that the buyer ordered one million square feet.
Shortly thereafter the seller attempted to deliver the balance of the order but the seller's truck driver was told by an employee of the buyer that there was no room in the buyer's warehouse to store it. Again the truck was dispatched by the seller to the buyer; at this time the buyer had not indicated there was any problem with the goods which had been shipped; in fact no documentation about the delivery of the goods of any kind was ever received by the seller from the buyer about the delivery of the goods.
*346 Thereafter, the seller attempted to redeliver the goods and then submitted its invoice to the buyer for the balance of the purchase price of the goods the seller had manufactured. The buyer then by telephone advised the seller that there were problems with the material; after this, the seller stored the materials in one of its associate's warehouses in Moonville, South Carolina. At this point, it is well to mention, that there is evidence of record that the goods which were specially manufactured for the buyer were of odd size and were such that the seller had no other customer to sell them to; indeed, the evidence indicates the goods were unmarketable to anyone. This evidence was before the jury.
On appeal the buyer first asserts that the seller made no effort to resell the material and did not present any evidence to support its contention that there was no market for the goods. The buyer misunderstands the statute which especially provides that if the circumstances reasonably indicate that an effort to resell the goods will be unavailing, that is all that is necessary. This is a jury issue. Multi-Line Mfg. Inc. v. Greenwood Mills, Inc., 123 Ga. App. 372, 180 S.E. (2d) 917 (1971), see 1A U.L.A. U.C.C. § 2-709 and the annotations thereof. We hold the evidence of record sufficient to have submitted this issue to the jury, which resolved it in favor of the seller. There is no merit to this exception.
The buyer next asserts that the seller failed to prove that the goods were still in its control as required by § 36-2-709(2). This section provides that where the seller sues for the price, he must hold for the buyer any goods which have been identified to the contract and are still in the seller's control. We hold that there is evidence of record from which the jury could infer that the seller met the necessary showing under this statute. There is evidence that the seller stored the goods in a warehouse of one of its associates. While it is true that there is also evidence that the warehouse was sold as a result of a bankruptcy proceeding, there is no evidence that the goods have been removed from the warehouse. In any event this issue was clearly put to the jury by the charge of the trial judge and the jury resolved it against the buyer. We find no merit in this exception.
Next, the buyer asserts error in the trial judge's refusal to charge revocation of acceptance as set forth in § 36-2-608, *347 Code of Laws of South Carolina (1976); this section provides that a buyer may revoke acceptance of goods under certain circumstances.
In the instant case, the buyer's answer denied acceptance, let alone revocation of acceptance. Stated differently, revocation of acceptance was not pled. We hold this defense to be an affirmative defense that obviously comes under the rule set forth in O'Neal v. Carolina Farm Supply of Johnson, Inc., 279 S.C. 490, 309 S.E. (2d) 776 (Ct. App. 1983), wherein this court defined an affirmative defense as follows:
An affirmative defense conditionally admits the allegations of the complaint, but asserts new matter to bar the action. Lawrence v. Southern Railway-Carolina Division, 169 S.C. 1, 167 S.E. 839 (1933). In other words, it assumes all elements of the plaintiff's case have been established. Because the plaintiff is taken to have proved a good cause of action, the burden of proof shifts to the defendant to show he is not liable. On the other hand, where the defendant pleads special matter that denies an element of the plaintiff's cause of action, the defense is not affirmative and the burden of proof remains on the plaintiff to establish his case.
For the foregoing reasons, the judgment below is affirmed.
Affirmed.
SANDERS, C.J., and GOOLSBY, J., concur.
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254 Ga. 678 (1985)
333 S.E.2d 588
IN RE WHITE.
42152.
Supreme Court of Georgia.
Decided September 5, 1985.
Black & Black, Adrienne Black, for appellant.
Lois W. Gossette, for appellee.
CLARKE, Justice.
This appeal is from an order setting aside a legitimation judgment. The trial court found the legitimation order to be null and void because it was based on a mistake and was against public policy. We affirm the trial court and in doing so agree with the finding of mistake but disagree with the finding of violation of public policy.
The petition for legitimation was filed by Jesse Julian White alleging the child to be illegitimate and that the petitioner was the father of the child. In response to this, the mother executed an affidavit of consent in which she identified White as the father of the child. After the order of legitimation was entered, White proceeded with an attempt to procure a new birth certificate and in doing so discovered on the existing birth certificate that the mother was married at the time the child was conceived. The action to set aside the judgment of legitimation recites that the mother's consent was mistakenly given because the child had a legal father but that no fraud was intended. The petition also alleged that a mother's denial of a child's legitimacy is a violation of public policy. This pleading was filed by White in an attempt to deal honestly with the court. However, the record indicates that White continues to desire an order designating the child as his legitimate offspring.
1. The public policy issue stems from ancient cases of this court and has been carried forward by statute. We have long held that when a child is born or conceived in wedlock there is a presumption of legitimacy. Wright v. Hicks, 12 Ga. 155 (1852). The legislature has *679 enacted a similar rule but has provided that the strong presumption of legitimacy may be disputed. To overcome the presumption, the proof must be "clear." OCGA § 19-7-20 (b). White and the guardian ad litem for the child both cite Colson v. Huber, 74 Ga. App. 339 (39 SE2d 539) (1946), for the proposition that public policy will not allow a mother to testify as to the illegitimacy of her child. They then point to the fact that the whereabouts of the "legal father" is unknown. This creates a dilemma in that it may be impossible to establish the fatherhood of the biological father.
In this case the "legal father" has never known the child, has never supported the child, and has not been heard from for several years. White and the mother both say White is the biological father, and White says he is anxious to support the child and for the child to bear his name. Public policy cannot be so narrow as to stand as an obstacle for such a worthwhile effort. We hold that the mother may testify as to the identity of the biological father of her child and that Colson v. Huber, supra, is overruled to the extent that it holds otherwise.
2. On the issue of mistake, we find that the legitimation order must be set aside. White, as petitioner, was unaware of the existence of the marriage at the time of conception. As a result, this fact was not pled and no effort was made to serve the "legal father." There can be no doubt that a man married to a woman at the time of the conception or birth of a child is a party at interest when another man claims fatherhood of the child in a legitimation proceeding. Therefore, due process requires that legal service be had. We hold that under such circumstances the "legal father" must be served but that service may be perfected in the same manner as provided for in adoption proceedings. See OCGA § 19-8-6 (c). Since that did not occur in this case, the order setting aside the legitimation judgment must be affirmed. This does not, however, prevent White from reinstituting a legitimation proceeding consistent with this holding.
Judgment affirmed. All the Justices concur.
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396 S.E.2d 856 (1990)
FAIRFAX COUNTY
v.
Mario E. ESPINOLA.
Record No. 1877-89-4.
Court of Appeals of Virginia.
October 2, 1990.
*857 Peter D. Andreoli, Jr., Sr. Asst. County Atty. (David T. Stitt, County Atty., Robert Lyndon Howell, Deputy County Atty., on briefs), for appellant.
Gregory C. Mitchell (Dale & Mitchell, Washington, D.C., on brief), for appellee.
Present: KOONTZ, C.J., and DUFF and KEENAN, JJ.
KOONTZ, Chief Judge.
Fairfax County (the County) appeals a decision of the Industrial Commission awarding benefits to Mario E. Espinola, claimant, for disability due to an occupational disease. On appeal, the County contends that the commission erred in finding that Espinola met his burden of proof under Code § 65.1-46.1 to establish that his hepatitis was compensable. The County *858 also asserts that the commission erred in finding that Espinola had filed his application for hearing within the time limits of Code § 65.1-52. We agree with the commission's decision and affirm.
Espinola worked as a senior medical technician for the Fairfax County Police Department for ten years, beginning in 1976. Throughout his employment, Espinola regularly administered blood tests and breathalyzer tests to persons arrested for driving while intoxicated. He conducted over 5,000 such tests and was exposed to blood approximately 200 times through needle punctures and breaking or seeping vials. On several occasions, he was exposed to blood from persons known to have hepatitis in their medical histories. His last recorded exposure to blood from a suspect who tested positively for hepatitis occurred on December 29, 1983.
Espinola did not have hepatitis when he was hired by the police department in 1976. In 1977, his liver function tests were normal. In 1982, his blood tests showed abnormal liver enzyme levels indicative of hepatitis. In a letter dated July 15, 1988, Dr. Vinod K. Rustgi stated that he saw Espinola in December, 1987 and performed a liver biopsy, which showed evidence of chronic persistent hepatitis. Dr. Rustgi diagnosed that Espinola had chronic non-A, non-B (NANB) viral hepatitis and referred him to the National Institutes of Health in February, 1988. Dr. Rustgi stated in a letter dated September 1, 1988, "Mr. Espinola's abnormal liver enzymes and his NANB hepatitis are most likely due to exposure to blood products during his job with the police department in the past." Dr. Frederic B. Walker, IV examined Espinola's medical records at the request of the County. He reported on October 30, 1988, that "[i]t is virtually certain that Mr. Espinola acquired the disease as a consequence of his work, perhaps from exposure of 5/12/82."
Espinola's last day of work with the police department was May 17, 1986. He filed an application for hearing on July 1, 1988. A hearing was held before the deputy commissioner on November 22, 1988. The deputy commissioner found that Espinola had not met his burden of proof under Code § 65.1-46.1 because he admitted that he had not, to his knowledge, been exposed to NANB hepatitis and if the hepatitis was contracted as a result of his employment with the police department, he had been infected on or before May 12, 1982, thereby barring his claim under Code § 65.1-52. On review, the full commission reversed, finding that there was sufficient medical evidence to establish with reasonable medical certainty that Espinola contracted NANB hepatitis as a result of long periods of exposure to blood products in his employment and that there was no persuasive evidence of significant exposure outside of his employment. The commission also found that Espinola's application was filed within two years of a communication of diagnosis on December 16, 1987 and within five years of the last injurious exposure on the last day of employment, May 17, 1986.
The County argues that there was not sufficient evidence to show that Espinola had been exposed to NANB hepatitis while employed with the police department. Upon appellate review, the findings of fact of the Industrial Commission will be upheld when supported by credible evidence. Russell Loungewear v. Gray, 2 Va.App. 90, 92, 341 S.E.2d 824, 825 (1986). "Whether a disease is causally related to the employment and not causally related to other factors is such a finding of fact." Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 12, 365 S.E.2d 782, 788 (1988). We construe the evidence and the inferences therefrom, using familiar principles, in the light most favorable to the party prevailing below. See, e.g., Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). In order for an ordinary disease of life to be compensable as an occupational disease under Code § 65.1-46.1, the claimant must establish by clear and convincing evidence, to a reasonable medical certainty, that the disease (1) arose out of and in the course of employment, (2) did not result from causes outside of the employment, and that (3) it follows as an incident of an occupational disease; or is an infectious or contagious disease *859 contracted in the course of employment in a hospital, sanitarium, public health laboratory or nursing home or in the course of employment as emergency rescue personnel; or is characteristic of the employment and was caused by conditions peculiar to the employment. Breeding, 6 Va.App. at 9, 365 S.E.2d at 786-87.
The medical evidence in the record strongly supports the commission's finding that Espinola's NANB hepatitis was compensable under Code § 65.1-46.1. The medical experts involved in the case unanimously agreed that Espinola contracted his hepatitis due to the environment in which he worked. Dr. Walker, the expert hired by the County, stated that he was "virtually certain" that Espinola contracted his NANB hepatitis from his employment. Espinola had ten years of exposure to blood and blood products, which came into contact with his skin every day at work, and had suffered over 200 percutaneous exposures from needles and shattered blood vials. He had no significant exposure to blood or blood products outside of his employment.
The commission evaluated Espinola's statement that to his knowledge he was never exposed to NANB hepatitis and concluded that Espinola "knew he risked exposure to hepatitis but was not aware of a specific exposure to NANB." The commission also found that "exposure from contaminated blood products, including contamination by viral hepatitis, is characteristic of the medical technician position held by Espinola." This finding was based on the unanimous opinions of the medical experts, the information in The Merck Manual of Diagnosis and Therapy (15th ed. 1987) describing the epidemiology of the illness, and evidence of the conditions of Espinola's employment. The commission's findings regarding the compensability of Espinola's illness are based on credible evidence and will not be disturbed on appeal.
The County argues further that Espinola failed to file his application for hearing in a timely manner within the limits prescribed in Code § 65.1-52. The filing of a claim within the statutory period is jurisdictional and the burden of proving a timely application is on the claimant. Breeding, 6 Va.App. at 6, 365 S.E.2d at 785 (citations omitted). A claim for an occupational disease must be filed either within "two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs." Code § 65.1-52(3). Espinola's uncontradicted testimony established that he was first advised that he had contracted NANB hepatitis by Dr. Rustgi on December 16, 1987 and the commission found that this was the date of his first communication of a diagnosis. Therefore, the filing of his application for hearing on July 1, 1988 was within two years after a first communication of a diagnosis of the disease.
The County asserts that Espinola's last injurious exposure was on May 12, 1982 because this date was the documented exposure to a known carrier of hepatitis relied upon by Dr. Walker in stating his opinion that Espinola's disease was contracted in the course of his employment. However, the commission rejected this reasoning and found that Espinola's last day of work, May 17, 1986, was the date of his last injurious exposure in employment. In reaching this finding, the commission noted that the undisputed evidence established that it was impossible to pinpoint the exact occurrence which exposed Espinola to the disease. Blood tests for hepatitis were recorded for prisoners and suspects only upon special request. His last recorded exposure to blood from a suspect who tested positively for hepatitis occurred on December 29, 1983. This date was within five years of the date on which Espinola filed his application for hearing. He was also exposed to blood and blood products throughout his ten years of employment with the County. Espinola estimated that his skin was accidentally penetrated by needles and he sustained injuries which caused blood from other persons to be on and under his skin approximately twenty times each year. The commission stated that "injurious exposure to hepatitis occurred *860 in a significant number of cases, although not specifically determinable mathematically, and this exposure continued so long as Espinola had regular contact with numerous subjects from whom he drew blood and had percutaneous exposure to their blood in the recurring incidents described in the record."
"Injurious exposure" to an occupational disease, as the term is used in Code § 65.1-52, means "an exposure to the causative hazard of such disease which is reasonably calculated to bring on the disease in question." Code § 65.1-52(3). A claimant can meet the statutory standard either "by establishing actual causation or aggravation of the disease or by showing that the exposure was of such duration and intensity that it generally causes the disease in question, even though actual causation or aggravation cannot be established in the claimant's case." Breeding, 6 Va. App. at 7, 365 S.E.2d at 785. The statutory definition of "injurious exposure" supplants the common-law definition and is broader in its scope in order to relieve claimants of the burden of establishing actual causation in cases where such proof is difficult, if not impossible. Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495, 499-500, 260 S.E.2d 193, 195-96 (1979). The Mixon case dealt with exposure to asbestos. Asbestosis differs in nature from hepatitis because it is a progressive disease which may be latent during the employment and manifest itself many years later, after the cessation of employment. See Parris v. Appalachian Power Co., 2 Va.App. 219, 230, 343 S.E.2d 455, 461 (1986). However, this case involves the same inherent difficulties in establishing a specific and identifiable causative incident which led to the claimant's contraction of his occupational disease. The commission found in this case that "Espinola's exposure was of such duration and intensity over the years that a reasonable and rational determination can readily be made that his employment exposure proximately caused the disease." This finding is supported by the unanimous opinions of the medical experts. We therefore uphold the commission's ruling that Espinola's last day of employment was the date of his last injurious exposure for purposes of Code § 65.1-52.
For the reasons stated above, we affirm the judgment of the Industrial Commission in this case.
Affirmed.
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302 S.C. 390 (1990)
396 S.E.2d 369
KERSHAW COUNTY BOARD OF EDUCATION, Respondent
v.
UNITED STATES GYPSUM COMPANY, Appellant.
23270
Supreme Court of South Carolina.
Heard May 23, 1990.
Decided September 17, 1990.
*391 Edward J. Westbrook of Ness, Motley, Loadholt, Richardson & Poole, Charleston, for respondent.
Steven W. Ouzts of Turner, Padget, Graham & Laney, P.A., Columbia; Thomas B. Kenworthy and Dennis J. Valenza of Morgan, Lewis & Bockius, Philadelphia, Pa., for appellant.
Heard May 23, 1990.
Decided Sept. 17, 1990.
HARWELL, Justice:
This case involves issues pertaining to the discovery and removal of asbestos contaminated materials from several *392 Kershaw County Schools. From a jury verdict in favor of Respondent Kershaw County Board of Education (Kershaw), United States Gypsum Company (Gypsum) appeals.
I. FACTUAL BACKGROUND
Between 1956 and 1958, asbestos containing acoustically ceiling plasters known as Audicote and Sabinite, manufactured by Gypsum, were installed in several schools in the Kershaw County School District. Since the time of this installation, considerable development in the asbestos field has resulted in an increased awareness of the dangers to the public from exposure to asbestos. Consequently, in the early 1980's, with the encouragement and assistance of the South Carolina Department of Health and Environmental Control (DHEC), Kershaw began an inspection process of its area schools. After an initial inspection, DHEC recommended removal of the ceiling tiles in three schools, and enclosure and encapsulation as a temporary measure in another school. Subsequently, Kershaw employed "The Survey Group," an environmental consulting firm, which tested and evaluated each of the school buildings at issue and recommended that the acoustically ceiling plaster be removed from the schools. In July 1983, Kershaw began its asbestos removal project, which was completed in the winter of 1984.
Thereafter, Kershaw brought this suit against Gypsum seeking money damages for the costs of inspection, testing, and the removal of the hazardous asbestos material from the school buildings. In its complaint, Kershaw alleged causes of action for negligence, restitution, fraud and misrepresentation, warranty, and a claim for punitive damages. Gypsum's Answer asserted a general denial and several affirmative defenses including the statute of limitations, failure to give notice, laches, waiver, estoppel, misuse of product, no damages, and compliance with state-of-the-art. At the close of all the evidence pertaining to liability, the trial judge dismissed the restitution and fraud causes of action. The trial judge denied Gypsum's directed verdict motions as to the causes of action in negligence and warranty and also as to Kershaw's claim for punitive damages. The jury returned a verdict for $200,000.00 on the negligence cause of action and $25,000 on the warranty cause of action. This appeal follows.
*393 II. DISCUSSION
A. ECONOMIC LOSS RULE
Gypsum first argues that the trial court incorrectly ruled that asbestos property damage is recoverable in a tort cause of action for negligence. Gypsum relies on what is commonly referred to as the "economic loss rule." In Kennedy v. Columbia Lumber & Manufacturing Company, 299 S.C. 335, 384 S.E. (2d) 730, 736 (1989) we explained the economic loss rule as follows:
[t]his rule exists to assist in determining whether contract or tort theories are applicable to a given case. Where a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only `economic' losses. Conversely, where a purchaser buys a product which is defective and physically harms him, his remedy is in either tort or contract. This is so, the analysis provides, because his losses are more than merely `economic'.
As we noted in Kennedy, the economic loss rule is the general rule that there is no tort liability for a product defect if the damage suffered by a plaintiff is only to the product itself. 299 S.C. at 341, 384 S.E. (2d) at 734. We also noted our difficulty with the economic loss rule generally, and we partially rejected the rule in the residential home building context. Id.[1] We have not yet been presented with the question of whether the rule should be so rejected in all contexts, including the commercial arena, and we need not address that issue here, as this case may be disposed of on narrower grounds.
The sole issue which needs to be addressed here is whether the economic loss rule applies when a plaintiff claims and proves "other property damage." We held in Kennedy that the rule does not apply where other property damage is proven. 299 S.C. at 341, 384 S.E. (2d) at 734. In addition, we agree with and adopt the reasoning of the recent District Court decision in City of Greenville v. W.R. Grace & Co., 640 *394 F.Supp. 559 (D.S.C. 1986), affd 827 F. (2d) 975 (4th Vir. 1987). In W.R. Grace, an asbestos case, the District Court held that the economic loss rule does not preclude an action in tort for damages sustained where a defendant's product caused damage to other property of the plaintiff. We therefore need only follow Kennedy and W.R. Grace in order to dispose of Gypsum's argument here, since Kershaw has alleged and offered proof of other property damage. See also Town of Hooksett School District v. W.R. Grace & Co., 617 F. Supp. 126 (D.N.H. 1984); Cinnaminson Twp. Board of Education v. U.S. Gypsum Co., 552 F. Supp. 855 (D.N.J. 1982). Accordingly, we affirm the trial judge's refusal of Gypsum's motion for a directed verdict on the negligence cause of action.
B. DESTRUCTION OF EVIDENCE
In August 1983, prior to the filing of this lawsuit, Judge John Hamilton Smith issued an order requiring that Gypsum and other asbestos defendants be notified prior to removal of asbestos from the schools at issue. Despite this order, asbestos abatement was conducted in one school, Camden High School, prior to Gypsum being notified and given an opportunity to inspect the building. Counsel for Kershaw informed the trial court that he was not aware that abatement had been completed at Camden High and did not deliberately conceal any information from Gypsum as to the project. Counsel for Gypsum conceded during his questioning of Kershaw's attorney that he was not suggesting that counsel for Kershaw intentionally withheld information from Gypsum regarding the removal.
Gypsum moved for judgment in its favor on the claims related to Camden High School because Kershaw had violated Judge Smith's order by removing asbestos prior to Gypsum's inspection. The trial judge refused this motion, but did include a jury instruction on the destruction of evidence. The trial court permitted Kershaw to explain the circumstances surrounding its failure to notify Gypsum and instructed the jury that when evidence is lost or destroyed by a party an inference may be drawn by the jury that the evidence which was lost or destroyed by that party would have been adverse to that party. See Welch v. Gibbons, 211 S.C. 516, 46 S.E. (2d) 147 (1948).
*395 We believe the trial court's decision was proper under the facts of this case. Judge Smith's order was drawn to facilitate discovery in these asbestos cases. Although the order itself contains no provision regarding sanctions, as a discovery order, it is subject to those measures contained in SCRCP Rule 37. The relief sought by Gypsum is contained in Rule 37(b)(2)(C), which provides for failure to comply with a discovery order the sanction of "striking out pleadings or parts thereof,... or dismissing the action or proceeding or any part thereof...." A dismissal under Rule 37(b)(2)(C) is not mandatory; rather, the trial court is allowed to make such orders as it deems just under the circumstances, and the selection of a sanction is within the court's discretion. Dunn v. Dunn, 298 S.C. 499, 502, 381 S.E. (2d) 734, 735 (1989); Pioneer Electronics (USA), Inc. v. Cook, 294 S.C. 135, 137, 363 S.E. (2d) 112, 113 (Ct. App. 1987). Whatever sanction is imposed should serve to protect the rights of discovery provided by the rules. Downey v. Dixon, 294 S.C. 42, 45, 362 S.E. (2d) 317, 318 (Ct. App. 1987). The burden is upon the appealing party to show that the trial court abused its discretion. Dunn v. Dunn, 298 S.C. at 502, 381 S.E. (2d) at 735. An abuse of discretion may be found where the appellant shows that the conclusion reached by the trial court was without reasonable factual support and resulted in prejudice to the rights of appellant, thereby amounting to an error of law. Darden v. Witham, 263 S.C. 183, 209 S.E. (2d) 42 (1974) cited in Dunn v. Dunn, 298 S.C. at 502, 381 S.E. (2d) at 735.
We conclude that the trial judge in this case exercised appropriate discretion in denying Gypsum's motion to dismiss the claim pertaining to Camden High School. Such a sanction would have been too severe under the facts of this case. Gypsum has not demonstrated on appeal that the ruling was unreasonable, that it was unduly prejudiced thereby, or that a sanction of dismissal would serve to protect the rules of discovery. We believe this is particularly true in light of the fact that there was no evidence of any intentional misconduct on the part of Kershaw or its counsel. Accordingly, we hold that the procedure followed by the trial court in this case was appropriate.
*396 C. ADMISSIBILITY OF STATE AND FEDERAL REGULATIONS
Gypsum next asserts it is entitled to a new trial because the trial court improperly allowed Kershaw to admit into evidence a DHEC regulation promulgated in 1982 and a NESHAP[2] regulation first promulgated by the Environmental Protection Agency (EPA) in 1973. Gypsum also asserts error in the admission of testimony concerning these regulations as well as testimony concerning AHERA[3] regulations promulgated in 1987.
The DHEC regulation was offered by Kershaw to show that asbestos is unreasonably dangerous and that Kershaw therefore acted appropriately in removing the material. Specifically, Gypsum objects to a statement contained in the preamble to the DHEC regulation that "the presence in school buildings of asbestos creates a hazard to the health of exposed school children and employees." The NESHAP regulation to which Gypsum objects requires that certain procedures be followed if a building with friable asbestos-containing products is renovated or demolished. These procedures include notice to the EPA of the intention to renovate or demolish and compliance with certain procedures to prevent emissions of particular asbestos material to the "outside air." The AHERA regulations were promulgated after the asbestos removal in this case and describe certain precautionary procedures to be implemented by school authorities if friable asbestos-containing surfacing materials are present in their buildings.
On appeal Gypsum argues that these regulations were hearsay and irrelevant and unfairly prejudiced the jury. Kershaw asserts the admission of the regulations and related testimony was not error since such were admitted for the limited purpose of showing the information on which the school board relied and why it pursued the course of action it did. Kershaw further asserts that the regulations were not hearsay because they were not offered to prove the truth of the matter asserted but to show what Kershaw relied upon in deciding to *397 remove the asbestos. Kershaw also argues that the trial court gave a limiting instruction to the jury. Finally, Kershaw notes that the substance of these regulations was admitted through other sources and therefore, any error was harmless. We agree with Kershaw on all points.
First, the regulations were not used by Kershaw to establish liability on the part of Gypsum. The findings in the DHEC preamble were only discussed outside the presence of the jury and were not argued to the jury. Kershaw offered these regulations to show its reliance on the regulations and the inevitability of the necessity of removal and accordingly the inevitability of damages.
Further, portions of the regulations Gypsum finds objectionable came in through other testimony. For example, an expert witness testified that friable asbestos material in a school environment would pose a threat and that school buildings are of special concern because of the presence of children.
Although Gypsum cites a number of cases for the proposition that these regulations should not have been admitted, none of its cited authority is controlling under the facts of this case. For example, many of the cases Gypsum cites concern the admissibility of reports, not regulations. See, e.g., Sandel v. State, 126 S.C. 1, 119 S.E. 776 (1923); Stack Prudential Insurance Company, 173 S.C. 81, 174 S.E. 911 (1934); Peagler v. Atlantic Coastline R.R. Co., 234 S.C. 140, 107 S.E. (2d) 15 (1959). Additional cases cited by Gypsum are inapplicable because they involve reports or regulations offered to prove negligence, which was not the purpose here; other cases address reports found to be unreliable. We are not persuaded by these authorities as all are distinguishable from the facts of this case. We hold that admission of the regulations and related testimony in this case did not constitute reversible error.
D. ADMISSIBILITY OF THE SARANAC DOCUMENTS
The "Saranac documents" are historical documents which relate to studies, interim reports, and a final report issued in 1952, recording the results of experiments involving the exposure of various animals to the asbestos product produced *398 by Gypsum. Gypsum and several other sponsors allegedly underwrote the project. These documents tend to indicate that the studies showed a link between asbestos and cancer.
Gypsum challenges the admissibility of the documents surrounding the Saranac studies because the documents were unauthenticated and irrelevant. First, we agree with the trial court's determination of the authenticity of the Saranac documents. South Carolina follows the principle articulated in Fed. R.Evidence 901(b)(4) which permits a finding of authenticity based on the "appearance, contents, substance, [and] internal patterns" of documents. The authenticity of a document:
may be established by circumstantial evidence if its tenor, subject matter, and the parties between whom it purports to have passed make it fairly fit into an approved course of conduct, and manifests the probability that the subject-matters of its contents was known only to the apparent writer and the person to whom it was written ...
State v. Hightower, 221 S.C. 91, 105, 69 S.E. (2d) 363, 370 (1952).
Prior to his ruling, the trial judge examined each of the documents submitted by Kershaw. An examination of these documents establishes that the documents relate to the same subject, are internally consistent, often refer to or answer each other, frequently bear the senders' letterhead and fit together in a fashion which would be impossible to fabricate.
Additionally, we hold that the documents were relevant. The determination of relevancy is within the discretion of the trial judge. State v. Jeffcoat, 279 S.C. 167, 303 S.E. (2d) 855 (1933). The Saranac documents were admissible not only to show what Gypsum could have known about asbestos and cancer, but what it actually did know. See Valori v. Johns-Manville Corporation, No. 82-2686, 1985 WL 6074 (D.N.J. Dec. 11, 1985) ("Saranac Documents" held relevant to question of whether asbestos manufacturer had knowledge of hazardous nature of product.) Although the parties were entitled to argue different interpretations of the meaning of the documents, the documents themselves were properly admitted as relevant evidence.
*399 III. CONCLUSION
The trial court properly allowed Kershaw to proceed on its negligence cause of action as it was not precluded, under the facts of this case, by the economic loss rule. The trial judge also properly refused Gypsum's request for the discovery related sanction of dismissal of Kershaw's claims relating to Camden High School. Finally, the trial court properly admitted the DHEC and NESHAP regulations, testimony concerning the AHERA regulations, and the Saranac documents. Accordingly, the decision of the trial court is
Affirmed.
GREGORY, C.J., and CHANDLER, FINNEY and TOAL, JJ., concur.
NOTES
[1] We retained the "economic loss" rule in the residential home building context only in those instances where a builder violates solely a contractual duty. 299 S.C. at 345, 384 S.E. (2d) at 737.
[2] National Emissions Standards For Hazardous Air Pollutants (Asbestos), 40 C.F.R. sec. 61 et seq. (1988).
[3] Asbestos Hazard Emergency Response Act of 1986, Pub. L. No. 99-159, 100 Stat. 2970 (codified at 15 U.S.C. §§ 2641-2654 (Supp. IV 1986).
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968 So.2d 561 (2007)
MASSEY
v.
STATE.
No. 1D07-2854.
District Court of Appeal of Florida, First District.
October 26, 2007.
Decision without published opinion. Affirmed.
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970 So. 2d 830 (2007)
FISKE
v.
HSBC BANK USA.
No. 2D07-1799.
District Court of Appeal of Florida, Second District.
December 19, 2007.
Decision without published opinion. App. dismissed.
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130 Cal. Rptr. 2d 436 (2002)
101 Cal. App. 4th 278
WESTERN AGGREGATES, INC., Plaintiff and Appellant,
v.
COUNTY OF YUBA, Defendant and Respondent.
No. C037523.
Court of Appeal, Third District.
July 17, 2002.
Opinion on Denial of Rehearing August 16, 2002.
Review Denied October 16, 2002.
*440 Morgenstein & Jubelirer, Jean L. Bertrand and David H. Bromfield, San Francisco, for Plaintiff and Appellant.
Daniel G. Montgomery, Marysville; Van Bourg, Weinberg, Roger & Rosenfeld, Stanley A. Coolidge, Yuba City, and David A. Rosenfeld, San Diego, for Defendant and Respondent.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez and Peter Southworth, Deputy Attorneys General, Amicus Curiae on behalf of Defendant and Respondent.
MORRISON, J.
This case involves a gravel moonscape left by hydraulic mining in the 19th Century; in the background it features ferries, stage coaches, gold dredging, abandoned towns, access to the Yuba River and millions of dollars worth of high-quality construction aggregates (sand and gravel).
During labor unrest, Western Aggregates, Inc. (Western) had several union members arrested for trespass in the Yuba Goldfields. Some arrestees filed civil rights suits in state and federal court, naming the County of Yuba (County) as one of the defendants. This was the King litigation of which judicial notice was taken at trial. (See King v. Western Aggregates, Inc. (April 21, 2000, C031188) [nonpub. opn.] (King).) Their theory was that they were on a public road and therefore County officers should not have participated in the arrests, because no trespass occurred. In defense of these suits, the County asserted the arrests did not take place on public property. In addition, citizens want to use the road to reach recreational sites.
Western sued the County to quiet title to the portions of Western's property over which it was claimed an historic public road ran. After a court trial, the trial court concluded a public road existed, although the original route had changed.
We affirm the trial court's central finding that an historic public road exists through the Goldfields. Western has no right to bar the public from using the road and as of the finality of this decision the trial court shall exercise its jurisdiction to enforce the public's right to use this road. We remand with directions only for the limited purpose of finally resolving this *441 controversy by specifying the exact metes and bounds of that public road.
FACTS
The records of the County Board of Supervisors (Board) and its predecessor, the Court of Sessions, as well as the federal government, establish the existence of a County road known as the Marysville-Nevada Road, which ran along the south side of the Yuba River in the 1850's.
An 1851 map based on surveys of the Feather and Yuba River areas shows a road running from south of Marysville past Ousley's Bar and Park's Bar, two of the mining bars on the Yuba River. An 1850 Court of Sessions order, authorized by statute (Stats.1850, ch. 81, § 1, p. 200), had made all wagon roads public highways. The trial court found "More likely than not, the historical `Marysville-Nevada Road' already existed ... at the time of the 1850 [order], and was encompassed within its terms."
In 1853-1854, the United States Department of the Interior began surveying townships in the Marysville area. Field notes from those surveys confirm the existence of a road running on the south side of the Yuba River from Marysville to Nevada County. An 1855 map based on the surveys shows a road on the south side of the Yuba River, designated as the "Marysville & Nevada Road." Miners used the road to get to Marysville to the west or to Nevada County to the east.
In February 1853, the Court of Sessions directed survey of a road from "the upper end of Ousley's Bar and running to a ferry opposite the Wooster Place," and the field notes show this road on the south side of the river. Later in 1853, the Board approved a ferry license for John Weiser.
In May 1855, the Board ordered that roads "now traveled by wagons and pack mules" be public highways.
Beginning in 1855, the federal government began issuing township plat maps of the area, which reflect the existence of a road on the south side of the Yuba River. On November 14, 1855, the Board commissioned another survey to "locate a road from Weiser's Ferry on the Yuba River through the mining localities of Sand Hill, Sucker Flat and Timbucktoo [sic] to the main road leading from Marysville to [Nevada County.]"
On February 3, 1858, the Board voted to vacate a short segment of the Marysville-Nevada Road because a parallel road duplicated it. A few days later, on February 9, 1858, the action was rescinded. In rescinding the first action, the Board confirmed the road was a public highway.
An 1861 commercial directory lists post offices in Ousley's Bar and Timbuctoo and lists stagecoach lines from "Wiser's Ferry" past Ousley's Bar.
The Board approved an official County map in 1861, and it shows a County road along the south bank of the Yuba River from Weiser's Ferry past Timbuctoo and into Smartsville.
The federal and state governments owned the disputed land in the 1850's and mostly into the 1870's.
By 1867, the federal government had completed plat maps for the relevant townships. They show the Marysville-Nevada Road ran as shown in the 1861 Yuba County map. The County's expert was able to examine the field notes and determine that the plat maps were accurate, and the location of the Marysville-Nevada Road can be traced to the present time with reasonable accuracy from the Park's Bar Bridge running west.
*442 Charles Whitecotton was the County's expert. He prepared exhibit No. 105, a composite of assessor's maps, and at trial marked the path of the road by connecting dots where he could ascertain the road had been by looking at the original field survey notes. Whitecotton finds assessor's maps "to be the most accurate as showing boundaries." He also prepared exhibit No. 104, which is a translucent map which shows the relevant township plats. He compared the field notes reflected on exhibit No. 105 with exhibit No. 104 and they largely matched. The survey notes plotted the road at the section (mile) lines because the townships had not then been platted. The accuracy between the plots depended on the terrain, but by employing topographic maps, "surprising" accuracy is possible.
In 1877 a petition was filed alleging residents near the road had closed part of it. The district attorney made a report, and the Board found the road was a County road and ordered removal of the obstructions. An issue at trial was the meaning of "Walters & Co. Ranch" in the minutes relating to this incident. Western asserted it referred to a corporation, not land owned by Walters and Smith. Whitecotton took the view that "Walters & Co." meant Walters and his associates, and therefore the road referred to related to the parcels at issue herein.
Based on this evidence from 1850 to 1877, Western's trial expert, Philip Sutherling, admitted there is evidence showing the Marysville-Nevada Road was a County road.
During the late 19th century, there is little documentary evidence of activity along the Marysville-Nevada Road. But Sutherling admitted that substantial mining continued in the area and there was a need for access.
Interest in this area expanded in the 1890-1900's when private mining companies began dredging for gold along the Yuba River. The company town of Hammonton, named after Wendell P. Hammon, was founded on the south side of the river between about 1902 and 1905. Hammonton was the site of massive dredging in the early 1900's, when at least four major dredging companies operated in the area. Hammonton Road, as part of the Marysville-Nevada Road was then called, was the main access route to Hammonton and the company town of Marigold. As the dredgers proceeded, the road along the south bank of the river was repeatedly dug up and rerouted. It was understood that any company that dredged through the road had to relocate it. One of Western's predecessors acquired some parcels in a 1915 deed, which reserved "`the ranch and county roads now upon ... the property,'" and required that roads were to be replaced "in substantially the same condition," and "in approximately the same location" after dredging.
Western's predecessor, Yuba Consolidated Goldfields, acquired the other dredging companies by 1930.
The California Debris Commission (CDC) was formed by Congress to counter the effects of hydraulic mining. (See Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622, 628-630, 163 P. 1024.) In June 1908, there is an exchange of correspondence between one of Western's predecessors and the Army Corps of Engineers, referring to "main traveled road to Hammonton" and the need to keep the road open for use by the public. In 1909, there is an extensive diary with repeated references to CDC work on the "county road" by various dredging companies and others. The road mentioned is near the Yuba River camps erected for the CDC work. (See Yuba Inv. Co. v. Yuba Consol. *443 G. Fields (1920) 184 Cal. 469, 194 P. 19 [describing some of the CDC work].)
The official Yuba County maps of 1909, 1914 and 1917 show Hammonton Road as a county road.
Exhibit P is a report to Western's counsel by Sutherling, in connection with the King litigation, ante, dated March 22, 2000. It recites Sutherling's conclusions regarding various pieces of evidence claimed to show the road was public. James K. O'Brien (a successor to James O'Brien in some of the chains of title) filed an affidavit in U.S. District Court stating the public used the road from Hammonton to Marysville. It also states the outcome of that litigation: The Marigold Dredging Company could dredge the road "as long as a suitable detour road was provided." It appears the affidavit was filed in 1918-1925, although the precise date is not stated.
Newspaper articles between 1910 and 1930 discuss the use of county funds to improve the road to Hammonton. Parts of the road were not then passable all the way to Park's Bar Bridge, but the road went at least through Hammonton. By the late 1930's, the road from Marysville into Hammonton and Marigold was paved and open to the public.
The County maintained the road into Hammonton during the 1930's and 1940's. A 1934 state traffic survey shows 100 to 500 cars used Hammonton Road each day, and called it an important county road. A 1937 map shows the County maintained a paved road to and past Hammonton, and to Marigold.
The official 1941 Yuba County map shows a road through Marigold and Hammonton to the Park's Bar Bridge, designated with double-parallel lines just as the road to Hammonton had been on the 1909, 1914 and 1917 official County maps. A 1949 map prepared by the County shows Hammonton Road as a "County local road, old," and shows a road running east from Hammonton towards the Park's Bar Bridge as a "county local road, new."
A witness testified his uncle drove him through the towns of Marigold and Hammonton and east all the way to the Park's Bar Bridge in 1949 without encountering any obstacles.
Hammonton was dredged out of existence about 1957.
In 1966, Otis Kittle, an engineer for the Army Corps of Engineers, investigated and issued a report on "`the origin and present status of the Hammonton Road running north from the junction with the Marysville-Smartsville Road to the (now-abandoned) towns of Marigold and Hammonton[.]" Kittle concluded "[t]he road's early establishment and acceptance as a public road and its continuing use to the present by the general public" made it a public road. In part Kittle describes interviews with three knowledgeable people who believed Hammonton Road was a public road. The first was a Yuba County road commissioner. The second was CD. Brophy, Western's predecessor's caretaker (and later company superintendent): He stated the road was a public road maintained by the county, that the company had mistakenly installed a locked gate in 1965, and the gate had been locked open to prevent future mistakes. The third was the chief of the Sacramento survey section of the Army Corps of Engineers: He had personally used and known the road as a public road since 1927.
In 1968, Western's predecessor gave an easement to the United States granting access to an "existing haul road." A stated reference point for the easement included "a point in the center of the public road known as the Hammonton Road."
*444 In the 1970's, Western's predecessor gated the road. Too little gold remains in the area to be mined, and Western now sells sand and gravel from the Goldfields.
Western's brief states there is "overwhelming evidence that ... between 1905 and 1999, operators in the Goldfields have repeatedly torn up, dredged through, rerouted, blocked, and gated these roads." We accept this factual admission. (County of El Dorado v. Misura (1995) 33 Cal. App. 4th 73, 77, 38 Cal. Rptr. 2d 908.)
In litigation between private parties, the Yuba County Superior Court issued a judgment finding an historical road had existed. (Henwood v. Yuba Co. Nat. Resources, Yuba Co. Super Ct. No. 43426 (Henwood) [the Henwood case, of which judicial notice was taken].) In part, the Henwood judgment indicates in 1901 "there was an existing roadway which ran in a generally westerly and southerly direction from the Park's Bar Bridge along the south bank of the Yuba River to what is now this Hammonton-Smartsville Road." Between 1905-1915, it was severed by the CDC work. "The evidence also reveals that there were a number of floods and washouts in the early 1900's, and also the quarry commenced operations during this time. The road appears to have been re-routed around the quarry site.... [T]he evidence points to the fact that the portions of the road lying to the east of the [CDC site] was further broken up during storms and fell into almost total disuse .... By the late 1960's, only bits and pieces of a road or roads existed in this area east of [the CDC work]. However, it is impossible for the Court to tell if these remnants were left over from the original Historical Road or were a result of new roadbuilding activities."
The County conceded the road through Hammonton to the Park's Bar Bridge did not equate to the Marysville-Nevada Road, but the trial court found it functioned in its stead.
DISCUSSION
I. Scope of review on appeal.
A. Standard of review.
Western points out that the "de novo standard of review ... applies to mixed questions of law and fact when legal issues predominate." (Harustak v. Wilkins (2000) 84 Cal. App. 4th 208, 212, 100 Cal. Rptr. 2d 718.) But this trial was a contest of competing evidence, including expert testimony. The facts are not intermixed with legal issues and therefore we do not apply de novo review, but view the evidence in favor of the judgment. (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157.)
B. Any evidentiary quarrels are waived.
Almost none of the evidence just summarized is described in Western's briefs, and what evidence Western does mention is portrayed favorably to Western. Western asserts it raises strictly legal claims, and chastises the County for including a thorough statement of facts in its brief.
The County points to the rule that an appellant has the duty to fairly summarize the facts in the light favorable to the judgment, and correctly points out that the failure to do so results in a waiver of evidentiary claims. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881, 92 Cal. Rptr. 162, 479 P.2d 362.) The duty to adhere to appellate procedural rules grows with the complexity of the record. (See Akins v. State of California (1998) 61 Cal. App. 4th 1, 17, fn. 9, 71 Cal. Rptr. 2d 314.) This court recently issued a decision emphasizing the importance of a thorough and accurate statement of facts. (Lewis v. *445 County of Sacramento (2001) 93 Cal. App. 4th 107, 112-114, 113 Cal. Rptr. 2d 90 ["Despite their own deficient statement of the facts, plaintiffs have the chutzpah to complain about ... defendants' statement of facts"].)
Although Western contests some facts in footnotes, these points are not headed as arguments and are waived. (Cal. Rules of Court, rule 14(a); Landa v. Steinberg (1932) 126 Cal. App. 324, 325, 14 P.2d 532.) Thus it is true that Western does not explicitly raise evidentiary issues. But legal issues arise out of facts, and a party cannot ignore the facts in order to raise an academic legal argument. "[Appellate counsel should be vigilant in providing us with effective assistance in ferreting out all of the operative facts that affect the resolution of issues tendered on appeal." (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 113, 113 Cal. Rptr. 2d 90.)
Western has not waived the legal issues it raises. But in addressing Western's issues we will not be drawn onto inaccurate factual ground. Western disavows any quarrel with the facts, both implicitly by omitting a fair statement of facts, and by chastising the County for providing this court with a thorough statement of facts. If Western had had any disputes about the facts as found by the trial court, they have been waived. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal. Rptr. 162, 479 P.2d 362.)
C. We will not consider the new trial exhibits.
As the County observes, Western's brief relies on new trial motion exhibits. Western asserts these exhibits should be factored in with the trial evidence and reviewed de novo. Western goes so far as to assert: "[I]t would be nearly impossible to decide this case without" considering these exhibits "and we urge the reader to [consult them] before even commencing to analyze the briefs."
Western bore the burden of proof in its quiet title action. (Ernie v. Trinity Lutheran Church (1959) 51 Cal. 2d 702, 706, 336 P.2d 525 (Ernie).) Western's brief leaves the reader mystified as to what was introduced at trial and why critical evidence was not.
We decline to look at these exhibits for several reasons.
First, Western has not argued that a new trial should have been granted. We decline to make the argument for Western. (See People v. Gidney (1937) 10 Cal. 2d 138, 142-143, 73 P.2d 1186.)
Second, the new trial motion was not brought on the ground of newly discovered evidence.
Third, we do not have these exhibits. The parties stipulated that the record should contain "all exhibits either admitted into evidence or rejected at trial," but that does not include these exhibits. Where exhibits are missing we will not presume they would undermine the judgment. (Pomerantz v. Bryan Motors, Inc. (1949) 92 Cal. App. 2d 114, 117, 206 P.2d 440.)
Fourth, Western's assertion that these exhibits depict in a more convenient form evidence already introduced at trial is not correct, as the County pointed out in its opposition to the new trial motion. They were maps that expert creators opined were accurate. Their foundation had not been tested in the trial court. It would be improper to consider them on appeal. (See Love v. Wolf (1964) 226 Cal. App. 2d 378, 392, fn. 4, 38 Cal. Rptr. 183.)
Fifth, the gist of the maps, according to the declarations, is that "although there is some overlap between the 19th Century road ... and the 1999 haul road ... they *446 are not congruent over most of either road's length." At oral argument counsel asserted the CDC moved the Yuba River by over a mile and the roads varied at some points by up to a third of mile. That the road has been rerouted is conceded.
Sixth, Western has waived any challenge to the evidence.
We disregard the briefing that relies on these exhibits.
II. A public road exists through the Goldfields.
At oral argument and at various points in its briefs Western assumes "formal procedures" were required to establish a road in California at the relevant times. Because Western assumes no "formal" road existed, it builds its case by arguing the only road was a road by prescription, which could be lost by disuse. The predicate for this claim is erroneous: This case is not about a road by prescription, but by dedication, principally by a federal statute. Western refers to the federal statute en passant, but does not come to grips with its sweep. In this section we will discuss the historic federal mining law of 1866, which opened federal lands to exploration, reversing a prior federal policy of reserving lands. The federal law incorporated state law principles, both generally regarding local laws and mining customs, and in particular regarding roads. Therefore, we will describe the laws regarding roads applicable in California and Yuba County. We will conclude an 1855 Board order made the then existing road public as far as state law was concerned, although the road, or much of it, ran over federal lands. In 1866, the federal government dedicated the federal lands for use as a public highway, thus confirming, as a matter of federal law, the public nature of the road. The owners of the parcels privately owned before 1866 impliedly dedicated those portions to public use.
A. Pre-1866 California conditions.
When gold was discovered in California, a wave of hopeful people (mostly men) rushed to California, and Statehood followed shortly in 1850. (See Holliday, Rush for Riches (1999) pp. 56-99.) By then, a number of legal questions had arisen.
Upon the cession of California by Mexico, title to all lands not vested in individuals passed to the United States, pursuant to the Treaty of Guadelupe Hidalgo. Upon Statehood, sovereignty passed to California. "Thenceforth, the only interest of the United States in the public lands was that of a proprietor[.]" (Woodruff v. North Bloomfield Gravel Mining Co. (D.Cal.1884) 18 F. 753, 772 [9 Sawy. 441].)
The common law and the civil law (from Rome through Spain and Mexico) held that a gold mine presumptively belonged to the sovereign. (1 Lindley on Mines (2d ed.1903) §§ 2-4, pp. 6-9, §§ 11-12, pp. 16-19 (Lindley); see Moore v. Smaw and Fremont v. Flower (1861) 17 Cal. 199, 212-216 (Fremont v. Flower).) An early position of the federal government was that the United States succeeded to the gold regardless of the title to land. (Yale, Legal Titles to Mining Claims and Water Rights, in California (1867) pp. 21-22, 27-29 (Yale).)
This position defied local customs and was abandoned. In a seminal opinion by Chief Justice Stephen Field, who was intimately familiar with local mining customs, the California Supreme Court overruled prior holdings and concluded that a U.S. government patent presumptively conveyed the minerals underlying the land. (Fremont v. Flower, supra, 17 Cal. at pp. 224-226; see Yale, supra, p. 88 [as a Yuba County Assemblyman, Field wrote the *447 California statute enforcing local mining customs].)
Long before this legal point was resolved or the California lands were surveyed, thousands of miners had begun work: They were trespassers. (See Boggs v. Merced Mining Co. (1859) 14 Cal. 279, 374-375; Irwin v. Phillips (1855) 5 Cal. 140,146.)
The United States had had a policy of reserving valuable mineral lands and not opening them to free exploration. (Deffeback v. Hawke (1885) 115 U.S. 392, 401, 6 S. Ct. 95, 98-99, 29 L. Ed. 423, 425 [per Field, J.].) Associate Justice Field stated for the United States Supreme Court: "The discovery of gold in California was followed, as is well known, by an immense immigration into the State, ... The lands in which the precious metals were found belonged to the United States, and were unsurveyed, and not open, by law, to occupation and settlement.... For eighteen years, from 1848 to 1866, the regulations and customs of miners, as enforced and molded by the courts and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands.... The policy of the country had previously been ... to exempt such lands from sale.... [The 1866 act] continued the [de facto] system of free mining, holding the mineral lands open to exploration and occupation, subject to legislation ... and to local rules." (Jennison v. Kirk (1878) 98 U.S. 453, 457-459, 25 L. Ed. 240, 242-243.)
B. The 1866 federal act.
The 1866 federal act abruptly shifted national land policy from one of "reservation" or withholding of land except for specified purposes to one of opening the land to all comers, to speed economic development and settlement, primarily in the vast western states, during the immediate post-Civil War era. (Yale, supra, pp. iv-v, 10-13 [describing legislative process, including desire to pay off the federal war debt].) This unprecedented shift in outlook toward federal lands left the policy-makers somewhat at sea regarding the method to achieve the new goals. Two critical features of this broad law are directly pertinent to this case. First, the law incorporated state law principles, eschewing the implementation of national standards, regarding acquisition of roads over public lands. Second, no application was necessary to acquire specified rights over federal lands, including roadways, nor did such roads have to be recorded after they were established. This made the creation of roads extremely easy in the West, and thousands of roads created under the 1866 act continue to exist. But given the varying state laws applicable to the creation and maintenance of those roads, and given that no recordation of roads was required by federal law (or by most state laws), widespread confusion ensued.
The federal act was "faulty and crude in the extreme, and the embarrassments surrounding its proper interpretation are still encountered in the courts[.]" (Lindley, supra, § 54, p. 81; see Yale, supra, pp. 9-13.) However, according to Judge John F. Davis, a mining law expert, "The passage of this law was heralded by the press of the whole Pacific slope as the greatest legislative boon conferred upon it by congress since the admission of California into the Union." (Davis, "History of the Mining Laws of California" published in Bench and Bar of California (1901) p. 310.) "This law of 1866 was more important as marking an era in the land policy of the government than as an effective means of settling mining titles. In fact, we are sometimes tempted to believe that was the only good that came of it." (Id. at p. 311.) Apart from reversing the "ancient" and "illiberal" *448 policy of reservation (Yale, supra, pp. iv-v), the act was a "legislative boon" to California because the structure of the act, as a whole, defers to local existing conditions, customs and laws. (Id. at pp. 355-356, 358-359.)
In particular, for our purposes, the federal act of July 26, 1866 (14 Stat. 251, 253) provided in part: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." This provision is often referred to as "Revised Statutes 2477" or by its later designation, title 43 United States Code section 932, since repealed by the Federal Land Policy and Management Act of 1976 (FLPMA). (Pub.L. No. 94-579, Oct. 21, 1976) 90 Stat. 2743, 2793; 43 U.S.C. § 1701 et seq.; see United States v. Gates of the Mountains Lakeshore Homes (9th Cir.1984) 732 F.2d 1411, 1413, fn. 3; Wilkenson v. Dept. of Interior of United States (D.Colo.1986) 634 F. Supp. 1265, 1272 (Wilkenson).) We will refer to the provision as R.S. 2477, its most popular name. (See Latta, Public Access over Alaska Public Lands (1988) 28 Santa Clara L.Rev. 811, fns. 2-3 (Latta).)
Roads to access mines and link towns were critical to the federal policy of open exploration. "Good communication throughout mining districts is indispensable for thorough development and economical working, affording rapid and cheap intercourse with the sources of supply, as well as among the adjacent mines." (Yale, supra, p. 378.) "The object of the grant was to enable the citizens ... to build and construct such highways across the public domain as the exigencies of their localities might require, without making themselves liable as trespassers." (Wells v. Pennington County (1891) 2 S.D. 1, 48 N.W. 305, 306.)
Pre-1976 R.S. 2477 roads are entitled to protection. (43 U.S.C. § 1769(a); Southern Utah Wilderness Alliance v. B.L.M. (D.Utah 2001) 147 F. Supp. 2d 1130, 1133 (SUWA).) They "are `major components of the transportation systems in most western states.'" (SUWA, supra, 147 F.Supp.2d at p. 1133.) "[O]ne need but to raise their eyes, when traveling through the West to see the innumerable roads and trails that lead off, and on, through the public domain, into the wilderness where some prospector has found a stake (or broke his heart) or a homesteader has found the valley of his dreams and laboriously and sometimes at very great expense built a road to conform to the terrain, and which in many instances is the only possible surface access to the property by vehicles required to haul heavy equipment, supplies and machinery." (United States v. 9,947.71 Acres of Land (D.Nev.1963) 220 F. Supp. 328, 331 [R.S. 2477 case].)
Some believe these roads impair modern federal land management interests, and some espouse the view that federal law ought to govern recognition of R.S. 2477 roads. (E.g., Comment, Revised Statutes 2477 Right-of-Way Settlement Act: Exorcism or Exercise for the Ghost of Land Use Past? (1996) 5 Dick. J. Envtl. L. & Pol'y 315; but see Hjelle, Ten Essential Points Concerning R.S. 2477 Rights-of-Way (1994) 14 J. Energy, Nat. Resources, & Envtl. L. 301, 303-304, 311-312 (Hjelle).)
Although R.S. 2477 is an offer by the federal government, it could be accepted by the public, according to the applicable state law governing dedications. (McRose v. Bottyer (1889) 81 Cal. 122, 126, 22 P. 393 (McRose ); Ball v. Stephens (1945) 68 Cal. App. 2d 843, 846, 158 P.2d 207 (Ball); Streeter v. Stalnaker (1901) 61 Neb. 205, 85 N.W. 47, 48; Lovelace v. Hightower (1946) 50 N.M. 50, 55-64, 168 P.2d 864, 867-875 (Lovelace); Standage Ventures, Inc. v. State of Arizona (9th Cir.1974) 499 *449 F.2d 248, 250; see Bader, Potential Legal Standards for Resolving the R.S. 2477 Right of Way Crisis (1994) 11 Pace Envtl. L.Rev. 486, 491, 502-503 (Bader); Annot., Necessity and Sufficiency of Acceptance of Grant of Right of Way over Public Land for Public Highway (1917) 1917A L.R.A. 355, 359.) The federal government has acknowledged as much in administering R.S. 2477. (See In re Barnes (1999) 151 Int. Dec. 128, 132-133 [1999 WL 33220771 (D.O.I.) ] [citing, inter alia, Ball, supra, 68 Cal. App. 2d 843, 158 P.2d 207]; In re Meeds (1974) 83 Int. Dec. 315, 317-318, 320-322 [1974 WL 25306 (D.O.I.) ].)
A major difficulty is the 1866 act had no recordation requirements, and the federal government never imposed one. (See Hjelle, supra, 14 J. Energy, Nat. Resources, & Envtl. L. at pp. 303-304, 320; Urquhart, Protecting Access to Federal Lands (2001) 15 Nat. Resources & Env't. 192, 193.) Therefore it may be a difficult factual issue whether a road was created before the land was patented. (Bader, supra, 11 Pace Envtl. L.Rev. at pp. 487-488 [many R.S. 2477 roads "forgotten by the state and federal government, but never formally abandoned"].)
However, when federal land was granted (patented), the grant was subject to any interests the United States had already conveyed, including any R.S. 2477 highways, recorded or not. (Bequette v. Patterson (1894) 104 Cal. 282, 284-285, 37 P. 917; McRose, supra, 81 Cal. at p. 126, 22 P. 393; Murray v. City of Butte (1887) 7 Mont. 61 [14 P. 656, 657]; Lindley, supra, §§ 530-531, pp. 880-881; Ricketts, Amer. Mining Law (4th ed.1943) § 626, p. 368.)
Sometimes proof of an R.S. 2477 road is by proof of long public usage, the same type of evidence used to show a road by prescription. (Cf. Hartley v. Vermillion (1903) 141 Cal. 339, 348-349, 74 P. 987.) But perfection of a public right-of-way under R.S. 2477 does not depend on adverse use of the land as a road, as in cases involving prescriptive rights-of-way. (Hatch Bros. Co. v. Black (1917) 25 Wyo. 109 [165 P. 518, 519-520].) Acceptance can be by approval of a governmental entity, or "until a highway is established in a manner recognized by the law of the state[.]" (United States v. Pruden (10th Cir.1949) 172 F.2d 503, 505; see Schwerdtle v. County of Placer (1895) 108 Cal. 589, 591-592, 41 P. 448 [use by public without objections for many years] (Schwerdtle).) Depending on state law, public use need not be for a specific length of time (Lovelace, supra, 50 N.M. at pp. 54-64, 168 P.2d at pp. 866-873) nor are formal proceedings needed. (Ball, supra, 68 Cal.App.2d at pp. 846-847, 158 P.2d 207; Martino v. Bd. of Commrs. (1961) 146 Colo. 143, 148-149, 360 P.2d 804 ["`User is the requisite element, and it may be by any who have occasion to travel over public lands'"]; Morrison, Mining Rights (16th ed.1936) p. 240; Ricketts, supra, § 627b, p. 369.) Congress, in enacting R.S. 2477, was presumed to know that "There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner ... and the fact of its being used for the public purposes intended[.]" (Cincinnati v. White's Lessee (1832) 31 U.S. (6 Pet.) 431, 440, 8 L. Ed. 452, 457 (Cincinnati).)
In California, "Dedication of land to a public use is simply setting it apart or devoting it to that use. To constitute a dedication at common law no particular formality of either word or act is required." (Smith v. City of San Luis Obispo (1892) 95 Cal. 463, 466, 30 P. 591.) "[U]se of the street by the public for a reasonable length of time, where the intention of the owner to dedicate is clearly shown, is sufficient, without any specific *450 action by the municipal authorities, either by resolution or by repairs or improvements." (Id. at p. 470, 30 P. 591.)
"Many cases hold that an offer to dedicate land may be inferred from the owner's long acquiescence in a public use of the property under circumstances which negative the idea that the use was under a license." (Union Transp. Co. v. Sacramento County (1954) 42 Cal. 2d 235, 240, 267 P.2d 10 (Union Transp.).) But acceptance by public use alone could impose an unwanted public liability. The California Supreme Court "concluded that while public use alone might constitute acceptance for purposes of the public's right to use the road, acceptance by public use alone would not suffice where the issue was one of governmental liability for failure to maintain. [The court also] held that, although `some official action consistent with an acceptance of the dedication' was required, no `formal act of acceptance' was necessary. [Union Transp.], supra, 42 Cal.2d at p. 244 [267 P.2d 10].) `Any action of the responsible public officials showing an assumption of control over the road' was sufficient recognition that the road was a public highway. (Ibid.) Evidence that [a] superintendent of roads sent road equipment to that portion of the road with instructions to make repairs on it supported the inference of implied acceptance by the county." (Re-Open Rambla, Inc. v. Board of Supervisors (1995) 39 Cal. App. 4th 1499, 1506-1507, 46 Cal. Rptr. 2d 822.) In 1955, the Legislature abrogated part of Union Transp., supra, 42 Cal. 2d 235, 267 P.2d 10, by amending Streets and Highways Code section 941 to provide that no road would become a highway by user. (Re-Open Rambla, Inc. v. Board of Supervisors, supra, 39 Cal.App.4th at p. 1507, 46 Cal. Rptr. 2d 822.) That did not invalidate existing roads.
Implied dedications are of two kinds. As indicated, one involves very long use. (Hartley v. Vermillion, supra, 141 Cal. at pp. 348-349, 74 P. 987; see Tilton v. Inhabitants of Wenham (1899) 172 Mass. 407, 409, 52 N.E. 514, 515 [per Holmes, J.].) But "If a dedication is sought to be established by a use which has continued a short timenot long enough to perfect the rights of the public under the rules of prescriptionthen truly the actual consent or acquiescence of the owner is an essential matter, since without it no dedication could be proved and none would be presumed; but where this actual consent and acquiescence can be proved, then the length of time of the public use ceases to be of any importance, because ... the rights of the public have immediately vested." (Schwerdtle, supra, 108 Cal. at p. 593, 41 P. 448, italics added, quoted approvingly in Union Transp., supra, 42 Cal.2d at pp. 240-241, 267 P.2d 10.)
Via R.S. 2477, Congress made an actual offer of dedication (Lovelace, supra, 50 N.M. 50, 55, 168 P.2d 864, 867) albeit an amorphous one, because the specific lands are not stated. It is the acceptance which, when not done by formal governmental action, may be implied by the conduct of members of the public.
Here, an R.S. 2477 road is shown by public use after 1866, evidencing acceptance of the statutory dedication. Further, public repair and depiction of the public road on official maps (as shown in this case) are both traditional signs of acceptance of a dedication. (E.g., City of Point Pleasant v. Caldwell (1920) 87 W.Va. 277, 104 S.E. 610, 611-612; City of Rock Island v. Starkey (1901) 189 Ill. 515, 524, 59 N.E. 971, 974; Steele v. Sullivan (1881) 70 Ala. 589; 1 Elliott, Law of Roads and Streets (4th ed.1926) §§ 165-169, pp. 189-198 (Elliott).)
*451 Western asserts map markings cannot create a road. But such markings on official maps can provide evidence that a public road existed. (Evid.Code, § 1341; Gray v. Magee (1933) 133 Cal. App. 653, 658, 661, 24 P.2d 948; cf. Whelan v. Boyd (1892) 93 Cal. 500, 501, 29 P. 69 [maps not conclusive].)
C. No unlawful taking of property was proven.
Western asserts recognition of a public road herein constitutes an unlawful taking of property. We disagree. When the road was designated as a public road in 1855 (if not sooner), the land under it was public. In 1866, Congress legitimated the road as far as federal law was concerned, except arguably as to a few private parcels, discussed infra.
1. The 1855 Board order under state law.
Western does not mention the 1850 Court of Sessions order which the trial court found likely established the road under state law. But because the County does not rely on that act, we begin with more recent events.
On April 28, 1855, Governor John Bigler approved a bill permitting the Board to order roads to "be considered as public highways which are now used as such," (Stats.1855, ch. 152, § 1, p. 192) and California statutes then became effective immediately. (See People v. Clark (1851) 1 Cal. 406, 408.) In May 1855, the Board ordered that "all Roads now traveled by wagons and pack mules within the Limits of Yuba County be and the same are hereby declared Public Highways." Wagon roads were the types of roads in existence at the time of the gold rush. (Latta, supra, pp. 832-834, 840.) A law declaring all roads to be public roads could establish an R.S. 2477 road. (Schwerdtle, supra, 108 Cal. at pp. 591-592, 41 P. 448.)
Western asserts the 1855 order was unconstitutional, relying on Harding v. Jasper (1860) 14 Cal. 642 (Harding), which stated (at pages 646 to 647): "This order was given in evidence against the plaintiffs' objection. It is very true, as the appellant's counsel argues, that so compendious a process of appropriating the land of others to public purposes, as might be implied from the general terms of this order, may not be conformable to the constitution and law; and, therefore, that this order, considered as a basis of title in the public to this land may not be valid. But still, the evidence was not, perhaps, objectionable for all purposes. It might, in connection with other proof, be admissible to show a control on the part of the county of this road, and a knowledge of this control over it, as a public highway, on the part of the owners, and thus furnish a circumstance, as will be more fully explained hereafter, from which a dedication may be inferred."
Western assumes the 1855 order was held unconstitutional. Not so. Harding, supra, 14 Cal. 642 held the ordinance could not of itself show private interests in land had been taken. The statement of decision recites it was "undisputed that at the time of the 1855 Ordinance ... none of the land over which the Marysville-Nevada Road ran had been patented or granted by the Federal or State government to private landowners."
Western claims "The [trial court] justified its action by presuming that in 1855 there were no known private landowners in the Goldfields. [Citation.] In other words, the trial court resurrected an unconstitutional Order by assuming no private landowners' rights were violated." The trial court was correct to assume there were no private landowners in 1855. *452 Western introduced exhibit Y, the detailed chains of title to the parcels in question, and none show any patents before 1862. Western did not introduce any evidence of any Mexican land grants in the area, nor that any such grants had been confirmed by the special tribunal set up to pass on the validity thereof, pursuant to the Treaty of Guadelupe Hidalgo. (See Teschemacher v. Thompson (1861) 18 Cal. 11.) So far as the record shows, the patents in exhibit Y represented original grants as to each parcel. On this evidence, the trial court correctly concluded there were no private landowners in 1855.
Western claims the 1855 order lacked notice provisions, therefore the trial court could not "know whether someone would have come forward to protect a proprietary interest along the road route in 1855[.]" Again, it was Western who had the burden of proof to quiet title. (Ernie, supra, 51 Cal.2d at p. 706, 336 P.2d 525.) Western's failure to show there were any private landowners in 1855, and indeed, exhibit Y's effective disproof of any such landowners, undermines Western's claim.
2. The government parcels in 1866.
All of the parcels belonged to the federal or state government at the time the road came into being, and most were unpatented when the federal mining act took effect. To the extent the lands were unpatented at that time, no taking of private property occurred. (See Hobart v. Ford (1870) 6 Nev. 77, 82 [construing section of 1866 act granting ditch rights based on user according to local customs].)
3. The private parcels in 1866.
There are four parcels (Parcel Nos. 4, 6-8) which were patented at least in part before 1866. All of them came into the hands of Sam Brannan, and thence (all by 1879) to James O'Brien of "O'Brien's Corner," referred to at trial, which was about three miles from Hammonton. It is not claimed the historic road ran over all of these parcels. The documents show people often held land before patents were issued, and sometimes agreed to transfer the land before patenting.
First, in 1864 California patented to Brannan parts of Parcel Nos. 4 and 6. Through Daniel Walters and George Smith (and others) the property went to James O'Brien. Second, in 1861 and 1864, the United States patented parts of Parcel No. 6 which eventually were held by Brannan thence to Walters and Smith and thence to O'Brien. Third, California patented Parcel No. 7 partly before 1866, but this parcel did not contain the road. Brannan sold it to Walters and Smith, and thence it went ultimately to O'Brien. Fourth, separate parts of Parcel No. 8 were patented by the United States to George Martin and Daniel Whitney, but by transfers in 1862, the parcels went to Brannan, thence to Walters and Smith and to O'Brien. More of Parcel no. 8 was patented by California, transferred to Brannan in 1862, thence to Walters and Smith and thence to O'Brien.
There is no evidence of any protest regarding the parcels patented before 1866, or to the 1855 ordinance declaring the existing roads to be public. (Cf. Steele v. Sullivan, supra, 70 Ala. at p. 594 [intent to dedicate in long-use case may be rebutted "by any word of protest, or act of remonstrance, on the part of the owner, by which he denies or forbids the right of use to the public"]; see Cincinnati supra, 31 U.S. (6 Pet.) at p. 440, 8 L.Ed, at p. 457 ["from the mere use of the land, as public land ... the assent of the owner may be presumed ....[Continued assent will be presumed, until a dissent is shown; and this should be satisfactorily established by the party claiming against the dedication"].)
*453 The common owners (Brannan to O'Brien) bracketing the 1866 law had every commercial and practical incentive to keep the existing public road open and there is no evidence of any complaint. Exhibit Y shows James K. O'Brien was the successor of James O'Brien. (See also Mammoth Gold Dredging Co. v. Forbes (1940) 39 Cal. App. 2d 739, 749, 104 P.2d 131.) As stated in the facts, James K. O'Brien acknowledged in federal court (Ca. 1918-1925) that the road was public. The pre-1866 patentees took their property burdened by a public road, and thereafter acquiesced in the continued use of the road. Such long acquiescence defeats any takings theory they may have raised (e.g., that the patents undermined a trespassory road). No taking is shown as to these parcels. "Laws establishing a presumption of donation from long user are not laws for taking property." (Angell, Law of Highways (3d ed. 1886) Dedication, § 131, p. 145, fn. 1 (Angell), citing Bumpus v. Miller (1856) 4 Mich. 159.)
III. Estoppel does not defeat the road.
During the King lawsuits arising out of the trespassing arrests in the Goldfields, the County denied the arrests took place on a County road. The County changed its position, and is here represented by the same counsel who represented the arrestees, on the very issue of the existence of the road. Western asserts the County should be estopped to allege a public road. We disagree.
"[N]either the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat the effective operation of a policy adopted to protect the public." (County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal. 2d 817, 826, 186 P.2d 124 (County of San Diego), quoted by Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal. 4th 305, 316, 96 Cal. Rptr. 2d 747, 1 P.3d 63.) The Legislature now has procedures governing how a road may be vacated and a public body cannot circumvent those procedures by conduct that might otherwise amount to an estoppel. (County of San Diego, supra, 30 Cal.2d at pp. 822-830, 186 P.2d 124.) Government estoppel is reserved for "`exceptional cases,' or situations where `justice and right require it[.]'" (Id. at p. 825, 186 P.2d 124.)
Western largely relies on cases from this court which have used estoppel to achieve abandonment of a right of way. But what is common in those cases but absent here is that the lands were not needed and the government had intended to abandon them, generally inducing reliance by the private party.
In People ex ret. Department of Public Works v. Volz (1972) 25 Cal. App. 3d 480, 102 Cal. Rptr. 107, the state condemned land and urged the land should be devalued because of a recorded 1910 street easement through it. A parallel easement existed nearby, on which Riverside Boulevard was built in 1940. This court upheld the exclusion of evidence of the 1910 easement, concluding the easement was unnecessary and the property owner had relied on the government to relocate the easement, rather than retain two easements, one of which was useless to the government but burdensome to the property owner. (Id. at pp. 489-490, 102 Cal. Rptr. 107.)
In Palo Alto Investment Company v. County of Placer (1969) 269 Cal. App. 2d 363, 74 Cal. Rptr. 831, the Rubicon Road was going to be rerouted through a subdivision and the owners agreed to improve this new part, with the understanding that the old part would belong to them. After the improvements were made, a highway *454 project was cancelled and Placer County argued it owned the old part. We held the old part was not needed, the owners had relied on the government, and public policy was not impaired by application of an estoppel to achieve abandonment. (Id. at pp. 367-369, 74 Cal. Rptr. 831.)
In Smith v. Richer (1964) 226 Cal. App. 2d 96, 37 Cal. Rptr. 769, a suit between private property owners, a critical issue was whether a highway formerly running between the properties had been abandoned. The State had stopped maintaining the road in 1932 when a new state highway was built nearby, and a 1937 flood destroyed much of the road. (Id. at p. 97, 37 Cal. Rptr. 769.) One party urged the lack of abandonment proceedings meant the remnants of the road remained public. There was a resolution approving the new route, but not explicitly abandoning the old. (Id. at p. 99, 37 Cal. Rptr. 769.) We concluded that because the public never owned the land, but merely had a right of way, a formal abandonment was not required. As we summarized at pages 99-100: "Whether relocation of a highway and nonuser of its former site constitute an abandonment of the public interest by implication depends upon two factors: (1) the character of the interest originally acquired by the public, and (2) compliance with statutory formalities. In the absence of statute a proprietary interest in the highway site, acquired by deed or dedication, may be lost only through express abandonment; but a public interest acquired by occupancy and use, without a formal grant, may be extinguished by nonuser, relocation or other evidence of an intent to abandon. [Citations.] If statutes provide a method for abandonment or vacation of roads, that method is exclusive." (Italics added.)
Our prior cases do not aid Western. Here, there was an actual dedication grant by the United States, the County never relocated the road and Western offers no alternate route.
Further, Western did not rely on the County's statement in the King litigation. In a more recent case involving a claim of government estoppel we emphasized: "`Chief among the principles necessary to sustain the person claiming estoppel is damage to that person through being misled by actions or omissions'" against whom the estoppel is invoked. (California Tahoe Regional Planning Agency v. Day & Night Electric, Inc. (1985) 163 Cal. App. 3d 898, 903, 210 Cal. Rptr. 48.) Western cites another case which did not involve alternate routes, but which rests on the element of reliance. In City of Los Angeles v. Cohn (1894) 101 Cal. 373, 35 P. 1002 (Cohn), a landowner began in 1871 to build a structure arguably encroaching on public land. The city attorney investigated the matter and reported to the city council that the city had no claim to the property, and this opinion was entered in the minutes. The owner, relying on this official finding, completed the building. Twenty years later, the city claimed the building encroached on a city street, but the California Supreme Court concluded the city was estopped. (Id. at pp. 374-375, 35 P. 1002.)
Here, the County may have been ill-informed about its rights. Even if the County denied the existence of a public road as a litigation tactic in the King case, such tactic did not mislead Western: At most it harmed the interests of the arrestees. As late as the 1960's, Western's predecessor acknowledged the road was public. Western and its predecessors freely dredged the road, and there is no evidence Western relied on the County's conduct in the King litigation in any way.
Application of an estoppel here, where reliance is not shown and no alternate *455 route is available, would defeat the public policy reflected by statutes setting forth specific procedures for the abandonment of roads. That is forbidden. (County of San Diego, supra, 30 Cal.2d at p. 826, 186 P.2d 124.)
IV. Western has not proved the road was abandoned.
Western heads an argument that "Even if the public had acquired some prescriptive rights to the Marysville-Nevada Road, they were lost as a result of a lengthy period of disuse from approximately 1877 to 1905." We disagree.
As we have demonstrated, the road arose spontaneously by the efforts of miners and others, and was allowed to exist by virtue of a de facto policy permitting trespassing over federal lands. The road was declared to be a public road as early as 1855, under state law. Congress ratified existing conditions in California by passing the 1866 act, which among other things offered the road (to the extent still over unpatented federal lands) for dedication, which was accepted when the next stagecoach passed over the road. (United States v. Lyndell (9th Cir.1997) 124 F.3d 1170, 1172 [federal laws become operative when passed].) As to those portions of the road which ran over the Brannan-O'Brien parcels we have discussed, those private landowners impliedly dedicated the land for continued use of the road (which had run over their lands since long before their ownership). Therefore, Western's characterization of the public's right as purely prescriptive is not accurate. (See Heath v. Parker (Colo.App.2000) 30 P.3d 746, 749 ["because the Road was established through public use [under R.S. 2477], we need not address the abandonment of a road created through public prescriptive use"] (Heath).)
Even if the road existed solely by prescription, Western's argument fails. Western relies on a statute (former Pol. Code, § 2620) which stated a road "not worked or used for the period of five years ceased to be a highway for any purpose whatever." This statute was part of the original Political Code, effective in 1873. (Code commrs., Ann. Pol.Code (1st ed. 1872, Haymond & Burch, commrs. annotators) p. 6.) Western makes a similar (though less clearcut) claim regarding a statute applicable after 1884. (Former Pol.Code, § 2621; Stats. 1883, ch. 10, § 1, p. 6.) Western asserts the failure of proof of road activity between 1877 and 1905 shows the old road was abandoned by desuetude. (See McRose, supra, 81 Cal. at pp. 125-126, 22 P. 393.)
We accept, arguendo, Western's legal theory, but only for the purposes of this case as to the 1883 law.
Western's argument founders on the facts and burden of proof. The general rule is: "`Once a highway, always a highway.'" (2 Elliott, supra, § 1172, p. 1668.) Therefore, the burden of proof is on the party contending a highway no longer exists. (Id., § 1173, p. 1669; Heath, supra, 30 P.3d at p. 749.) Western paints certain evidence in its favor, but the trial court was not obliged to view the evidence favorably to Western, nor are we. Moreover, it appears this contention is factually hinged to the claim that the original road was destroyed and no other route can be substituted for it, which we address elsewhere. Western did not carry its burden to prove the road was not used between 1877 and 1905 for a period of five years, or for any period. True, the County did not introduce proof of activity covering every lustrum from 1877 to 1905, but it proved the road was used before and after that period. The trier of fact could infer the road was used in the interim. "A *456 thing continues to exist as long as is usual with things of that nature." (Civ.Code, § 3547; see Hohenshell v. South Riverside etc. Co. (1900) 128 Cal. 627, 631, 61 P. 371 [title presumed to remain the same].)
Moreover, there is no other way to access the lands once served by the road. "[T]he availability of substitute access provided by another road has usually been a relevant, if not critical, factor in the determination of an intent to abandon." (Heath, supra, 30 P.3d at p. 750; see also id. at p. 751 ["even occasional use of a public road for access purposes, in the absence of an alternative road, precludes a finding of abandonment"].)
V. Dismissal of the complaint is not warranted,
Pointing to part of the statement of decision in which the trial court alternatively concluded that the Henwood action barred Western's complaint, Western argues the trial court should have dismissed its complaint. Not so.
A quiet title action seeks to declare the rights of the parties in realty. A trial court should ordinarily resolve such dispute. This accords with the rule that a trial court should not dismiss a regular declaratory relief action when the plaintiff loses, but instead should issue a judgment setting forth the declaration of rights and thus ending the controversy. (See Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal. 2d 719, 729, 146 P.2d 673; Haley v. L.A. County Flood Control Dist. (1959) 172 Cal. App. 2d 285, 292-294, 342 P.2d 476.) As stated in a case involving Western's predecessors, "`The object of the action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.'" (Yuba Invest. Co. v. Yuba Consol. Gold Fields (1926) 199 Cal. 203, 209, 248 P. 672; see Gazos Creek Mill etc. Co. v. Coburn (1908) 8 Cal.App. 150,153, 96 P. 359 ["all parties were before the court with their grievances"].)
The complaint sought to enjoin the County "forever" from asserting rights in the road and the amended answer asserted the road had been in controversy "for at least" 100 years. The matter was ripeif not overripefor decision.
VI. Clarification of the remedy is required.
The cause must be remanded to clarify the exact right of the public in Western's land. The road will not be exactly as shown on the 1861 Yuba County map. This does not deprive the People of the right to a road, particularly since most, if not all, of the cause was due to Western and its predecessors.
A. The metes and bounds must be determined.
Western points out that the judgment does not specify the metes and bounds of the roadway over its entire course. In a case involving the width of an old road, we remanded for a determination of the exact contours of the road. (County of Colusa v. Charter (1989) 208 Cal. App. 3d 256, 266-268, 256 Cal. Rptr. 45; see Sprague v. Stead (1914) 56 Colo. 538, 543, 139 P. 544, 546 [remanding for that purpose in R.S. 2477 case] (Sprague); see also Leverone v. Weakley (1909) 155 Cal. 395, 398, 101 P. 304; Tucker v. Watkins (1967) 251 Cal. App. 2d 327, 332, 59 Cal. Rptr. 453 ["all that is shown ... are the two termini of the old road," held, insufficient].)
The County asserts Western cannot complain of the lack of description because Western and its predecessors dug up the road. But: "Every ... judgment which constitutes evidence of title to a right of *457 way ... in relation to county highways shall particularly describe the lands included in such right of way" and such judgments must be recorded so the public knows its rights. (Sts. & Hy.Code, §§ 947, 948.)
The County's reliance at oral argument on Guerra v. Packard (1965) 236 Cal. App. 2d 272, 46 Cal. Rptr. 25 is unavailing. That case involved a private easement, not a public highway governed by Streets and Highways Code section 947, and the description included width, reference to existing named routes, "physical monuments, compass directions and longitudinal and latitudinal designations," (pp. 296-297) none of which are present here. Nor is Hitchcock v. Lovelace (1941) 47 Cal. App. 2d 818, 119 P.2d 151 persuasive. It, too, involved private parties, and the description referenced existing named roads, (id. at pp. 826-827, 119 P.2d 151) whereas here the contours of the public road have changed without recordation. The judgment is sufficient to alert Western to the public's right to the road, but is not sufficient to comply with the statutes.
The trial court substituted the existing "haul road" in places where today's road deviates from the historic road. On remand the trial court must ascertain the exact route and width of that road. If the parties are unable to agree on an exact description, the trial court may conduct such proceedings (e.g., appointment of a special master) as are necessary to define the public road now running through the Goldfields. Such proceedings must not delay the People's right to use their road upon finality of this decision.
Western argues "reasonable accuracy" in the description of the road is inadequate, and no road can ever lawfully be declared. We agree with the Attorney General's view: "[I]t would be unsound policy to destroy the public's right to traverse and gain access to the expansive Yuba Goldfields simply because Western and its predecessors destroyed or relocated portions of the original physical location of the public road[.]"
B. The County has no fee interest in the Goldfields.
The judgment partly states: "Because Plaintiff has failed to carry its burden of proof, ... judgment as to [listed] parcels is hereby entered for the defendant County, along with a declaration of a public easement or right of way for a County road running in and through those parcels." Western asserts this grants the County a fee interest. Entering judgment for the County on Western's complaint is not the same as quieting title in the County. Moreover, the judgment describes the interest as "`a public easement or right of way for a County road.'" This is not a fee interest.
C. The replacement route of the road is proper.
The exact course of the road has changed in certain places, due in large part to the actions of Western and its predecessors. Western asserts the trial court was mistaken to treat "the haul road built in the 1980s by Western and a 1940s-vintage road to.... Hammonton" as the functional substitute for the Marysville-Nevada Road, asserting a taking has occurred.
Western's argument relies heavily on the new trial exhibits, which we disregard. Western also makes factual points which are refuted by the record, including the claims that there is "no evidence" Western's predecessors destroyed the old road and "no evidence" the later roads were intended as relocations for the old road. From the facts found by the trial court, and the reasonable inferences flowing therefrom (see Overton v. Vita-Food Corp. *458 (1949) 94 Cal. App. 2d 367, 370, 210 P.2d 757), Western's factual claims lack merit.
Western's legal claims fare no better. A United States Supreme Court case discusses the common-law rule regarding deviations in highways: "The original road was formed by the passage of wagons, etc., over the natural soil, and we know, as a matter of ordinary observation, that in such cases the line of travel is subject to occasional deviations owing to changes brought about by storms, temporary obstructions, and other causes. But, so far as the specific parcels of land here in dispute are concerned, we find nothing in the record to compel the conclusion that any departure from the line of the original highway was of such extent as to destroy the identity of the road as originally laid out and used." (Central P.R. Co. v. Alameda County (1932) 284 U.S. 463, 467, 52 S. Ct. 225, 226, 76 L. Ed. 402, 405 (Central Pacific).)
At common law, "there can be no loss of the public right by mere nonuser. A highway once established must always remain such until changed or discontinued by process of law." (Angell, supra, § 321, p. 430; see 2 Elliott, supra, §§ 1172-1174, pp. 1668-1671; see also Civ. Code, § 3547.) Where the claim is the road has been abandoned, the burden is on the party attacking the road to demonstrate that deviations are so profound as to constitute abandonment. (Central P.R., supra, 284 U.S. at pp. 467-468, 52 S.Ct. at pp. 226-227, 76 L.Ed, at p. 405; see Ward v. City of Monrovia (1940) 16 Cal. 2d 815, 821-822, 108 P.2d 425 [prescriptive easement case, "the change must be material either in the nature of the extent of the servitude imposed"].) No fixed degree of change is dispositive: "[T]he distance to which a roadway may be changed without destroying an easement will be determined somewhat by the character of the land over which it passes, together with the value, improvements, and purposes to which the land is adapted." (Matthiessen v. Grand (1928) 92 Cal. App. 504, 510, 268 P. 675 [private easement case]; cf. Dooling v. Dabel (1947) 82 Cal. App. 2d 417, 424, 186 P.2d 183.) "[T]he obstruction of an old way and the opening of a new by the landowner, or the substitution of a new highway for an old, when accepted by the public has been held a dedication of the new highway." (1 Elliott, supra, § 181, p. 218; see id, § 187, pp. 226-227.) Where the termini remain the same, and a party over whose land a roadway changes voices no objection (or changes the route), the new route succeeds to the status of the old. (Lamed v. Lamed (1846) 52 Mass. 421; Angell, supra, § 143, pp. 159-160; see Small v. Binford (1908) 41 Ind.App. 440, 83 N.E. 507, 509-510 ["It is sufficient if the line of travel remains substantially unchanged, although at times it may deviate to avoid bad roads or obstructions"].)
Cases construing R.S. 2477 have followed the common law rule regarding changes in the precise line of the road. (Sprague, supra, 56 Colo, at p. 542, 139 P. at p. 545 ["reasonably definite and certain line"]; Streeter v. Stalnaker, supra, 61 Neb. 205, 85 N.W. at p. 47.)
Moreover, a party who "actually assisted in the variation of the road" cannot complain about such variation. (Bumpus v. Miller, supra, 4 Mich, at p. 164; see Civ.Code, § 3517 [No one can take advantage of his own wrong].)
Wilkenson, supra, 634 F. Supp. 1265, addressed claims by landowners to the right of free passage across the Colorado National Monument, based on an alleged R.S. 2477 road. District Judge Richard Matsch stated: "The Glade Park spur was built by farmers and ranchers in 1921. There is no legal basis for asserting that this particular segment of the road constitutes a right *459 of way acquired under [R.S. 2477] because the construction was after the establishment of the Monument [in 1911]. There is evidence, however, that people were traversing the top of the mesa and going into Glade Park by a wagon road by 1912. The fair inference is that the road at the top must have connected with some road coming up from the bottom before the Monument was established." (634 F.Supp. at p. 1273, italics added.)
This reflects the common sense idea that a road's importance may he in the points it connects. The "fair inference" is the road connects points, completing a throughway, even if the intermediate route changes. (See Wilkenson, supra, 634 F.Supp. at pp. 1275-1276, quoting Central P.R., supra, 284 U.S. 463, 52 S. Ct. 225, 76 L. Ed. 402.) Professor Bader lists as typical those R.S. 2477 roads "used to connect two or more distinct locations. Examples include routes which are the primary means between townsfn) or which link two transportation arteries,[fn.] or which once served as stage lines." (Bader, supra, 11 Pace Envtl. L.Rev. at pp. 505-506, fns. omitted.) Here, the County wants the right to go through Western's lands, not to recreate the old route.
We note Western did not prove it erected anything of value at any particular location of the new route in reliance on the County's conduct. (Cf. Cohn, supra, 101 Cal. at pp. 374-375, 35 P. 1002.)
VII. Western was not deprived of a fair trial.
The trial court ordered the parties to file posttrial briefs and directed both parties to file proposed statements of decision by September 21, 2000. The parties then stipulated that the County's proposed statement of decision would be due a week later to give the County "an opportunity to review [Western's] Reply Brief After Trial in order to prepare findings and conclusions as to all matters at issue." The court accepted this stipulation. Both parties lodged proposed statements of decision.
On November 3, 2000, the trial court ordered the County to make a number of changes (by page and line) to its proposed statement of decision.
On November 7, 2000, Western requested a statement of decision and attached proposals, in part stating: "Although the Court has not followed the procedures set forth in Rule 232 ... relative to a tentative decision, the `Order' which adopted the essential elements of the [County's] proposed Statement of Decision previously filed will be considered the tentative decision of the Court as is required by said Rule."
On November 14, 2000, the court entered an order treating Western's filing as raising objections to the proposed decision, lest the filing be "superfluous."
On November 20, 2000, the trial court filed its statement of decision and judgment.
On December 1, 2000, Western filed further objections to the statement of decision. Later various papers were filed regarding a new trial motion and costs. The new trial motion was denied and Western timely filed a timely notice of appeal from the judgment of November 20, 2000.
Western asserts the trial court deprived it of a fair trial, because the trial court: (1) failed to announce a tentative decision or allow Western to object; and (2) should have prepared its own statement of decision.
We disagree with Western's claims of reversible error.
1. The court ordered each party to present proposed statements of decision *460 with their posttrial briefs. When the court directed the County to make specific changes to its proposal, that became the court's tentative decision, and Western treated it as such in the trial court. Then, the court treated Western's request for a statement of decision (filed after the tentative decision had been announced) as containing objections to the tentative decision. As the trial court indicated, doing otherwise would have made the filing superfluous. Given the stipulation of the parties, and Western's acknowledgement that the County's proposal when adopted by the trial court equated to a tentative decision, Western was not deprived of a fair trial. Moreover, the place for Western to object to the trial court's procedure was in the trial court. (See Brydon v. East Bay Mun. Utility Dist. (1994) 24 Cal. App. 4th 178, 205, 29 Cal. Rptr. 2d 128.)
2. The trial court had no duty to prepare its own statement of decision. The trial court did not "rubberstamp" the County's proposal, as Western states, instead the trial court agreed with it (as amended). The trial was free to make (and did make) any changes deemed necessary. Trial courts often direct one party to prepare a statement of decision. (See Whittington v. McKinney (1991) 234 Cal. App. 3d 123, 129, fn. 5, 285 Cal. Rptr. 586 ["preparation of a statement of decision should place no extra burden on the trial courts. A party may be, and often should be, required to prepare the statement"]; Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal. App. 3d 1126, 1128-1129, 210 Cal. Rptr. 114; 3 Cal. Pract. Guide: Civil Trials and Evidence (The Rutter Group 2000) Nonjury Trials, §§ 16:156-16:157, pp. 16:31-32.)
We conclude Western has not demonstrated that it was deprived of a fair trial by the trial court's procedures culminating in the issuance of the statement of decision.
Even if Western had demonstrated error in the post-trial proceedings, we would not reverse. Western had the opportunity to set forth its view of the case, factually and legally, and object to the County's assertions. The trial court issued a statement of decision "explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial[.]" (Code Civ. Proc, § 632.) Western fails to explain how the procedure employed caused a miscarriage of justice requiring reversal of the judgment for procedural error. (See Cal. Const., art. VI, § 13, Code Civ. Proc, § 475; Vaughn v. Jonas (1948) 31 Cal. 2d 586, 601, 191 P.2d 432; Santina v. General Petroleum Corp. (1940) 41 Cal. App. 2d 74, 77, 106 P.2d 60 ["Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there"].)
DISPOSITION
The cause is remanded with directions to the trial court to conduct further proceedings as necessary to specify the metes and bounds of the public road, consistent with this opinion. (Sts. & Hy.Code, § 947.) In all other respects, the judgment is affirmed. Western shall pay the County's costs of this appeal.
We concur: BLEASE, Acting P.J., and SIMS, J.
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
The public acquired its present right to use Western's haul road because of the movement of the road by Western and its predecessors and therefore it is the road currently in existence which belongs to the public. In its rehearing petition Western objects that it does not own several *461 discrete portions of the existing road and they were not part of this quite title action. Western lacks standing to object on behalf of other property owners. If those owners (including the United States) are able to block access to portions of the haul road, Western has the obligation to provide an adequate route through its land to those portions of the haul road which it does own. This is consistent with the historic movement of the road, as stated in our opinion: Regardless of dredging and so forth, a public access road was always to be provided by Western's predecessors. Upon finality of our decision, Western (or its subsidiaries or agents) cannot block the public from the road.
However, the County has the right to set regulations about the use of and access to the road, just as it has the right to regulate the use of other County roads. Nothing in our opinion should be read to authorize an anarchic rush across Western's active mining operations, clogging of the road and so forth.
Contrary to Western's claim in the rehearing petition, the County will not bear the cost of any surveys which may be required. The cost of a survey by court-appointed expert (in the event the parties cannot agree on the route) will become a cost of suit for which the County, as the prevailing party, may seek recovery in an appropriate cost bill. (Code Civ. Proc., §§ 1032, 1033.5, subd. (a)(8); see People v. Superior Court (Laffi) (2001) 25 Cal. 4th 703, 737-738, 107 Cal. Rptr. 2d 323, 23 P.3d 563.) Moreover, it would be inequitable to require the County to pay for Western's decision, as a matter of Western's business convenience, to move the County road. There is no hint in the evidence before the trial court that the County ever had to pay a dime when Western's predecessors dredged up and rerouted the road and the inference is to the contrary, that Western's predecessors had the duty to rebuild the road when it was damaged or moved. The fact that the survey may be expensive because of the passage of time is wholly the fault of Western, which has illegally gated the road for many years, depriving the public of lawful access.
Western's request for a post-opinion settlement conference is denied.
SIMS, Acting P.J., concurs.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260325/
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632 F. Supp. 126 (1985)
Francis PONGRAC
v.
CONSOLIDATED RAIL CORP., et al.
Civ. A. No. 84-1404.
United States District Court, E.D. Pennsylvania.
October 7, 1985.
*127 Paul Sacks, Philadelphia, Pa., for plaintiff.
Louis Bolognini, Philadelphia, Pa., for John Crane-Houdaille, Inc.
MEMORANDUM AND ORDER
DITTER, District Judge.
Presently before the court in this asbestos case is the motion of defendant John Crane-Houdaille, Inc. for summary judgment. For reasons that follow, this motion will be granted.
Plaintiff alleges that while working at a railroad facility in Jersey City, New Jersey, he was exposed to asbestos products and that this exposure has caused him to suffer pulmonary damage. Named as defendants in the action are the Central Railroad of New Jersey, the operator of the facility during the course of plaintiff's employment, Consolidated Rail Corp., the current owner of the facility, and numerous manufacturers of asbestos products, including moving defendant John Crane-Houdaille, Inc. (John Crane).
John Crane's summary judgment motion is predicated on the theory that plaintiff cannot establish a causal link between exposure to a John Crane product and his alleged disease and is supported by the answers of plaintiff to interrogatories propounded on June 11, 1984 by John Crane. In response to questions asking plaintiff first to state whether he contended that a John Crane product caused him harm and second to identify those products he contended caused him harm, plaintiff asserted only that he was exposed to numerous asbestos products throughout his work career and that his investigation was continuing for the specific products to which he was exposed. See Plaintiff's answers to first set of interrogatories of defendant John Crane-Houdaille, Inc. ¶¶ 1, 2 (included as exhibit "B" to defendant's motion for summary judgment).
After substantial briefing on the motion, counsel presented oral argument. Plaintiff's counsel asserted that Philip Angello, whom counsel represents in another action, testified during a deposition taken in the other action that he had worked in the Jersey City rail facility and had used asbestos products manufactured by John Crane. See Transcript of oral argument at 23. Counsel further stated that Mr. Angello and Mr. Pongrac worked in the same shop and knew one another. Id.
Over strenuous objection by defense counsel, I decided to hold the matter in abeyance to allow plaintiff additional time to complete discovery pertinent to the motion and to submit additional exhibits or memorandums in support of his position. Pongrac v. Consolidated Rail Corp., No. 84-1404 (E.D.Pa. June 24, 1985). At the close of this additional period, defendant submitted a copy of the Angello deposition. Plaintiff offered no new exhibits, but made reference to the Angello deposition.
During his deposition, Mr. Angello testified that from 1926 until 1973 he worked for the Central Railroad of New Jersey at its Jersey City, New Jersey facility. Angello deposition at 24-25. While an employee of the railroad, he worked first in the carmen's yard as a laborer cleaning the cars, id. at 9, and then moved to the Communipaw Engine Terminal, where he performed a series of jobs. Id. at 9-14. The terminal, located in the Jersey City facility approximately one-half mile from the carmen's yard, id. at 10, was described by Mr. Angello as being the biggest in the east, *128 occupying a space equivalent to a number of city blocks, and consisting of a machine shop and two turntables with stalls for 66 locomotives. Id. at 12, 142-45. In this facility, Mr. Angello worked as an engine wiper, id. at 11, a painter-helper, id., and finally as a pipefitter-helper. Id. at 14.
Mr. Angello testified that he was exposed to asbestos in the workplace and could identify two John Crane asbestos products with which he worked. Id. at 71-72 & 129-30. However, Mr. Angello testified that he was not exposed to asbestos when he worked as a car man in the yard, id. at 36, 84, and 137, and did not make reference to Mr. Pongrac in his deposition.
It is well settled that the party moving for summary judgment has the burden of proving that there exists no genuine issue of fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir.1974); United States ex rel Jones v. Rundle, 453 F.2d 147, 150 (3d Cir.1971). Unless the moving party can make a prima facie demonstration that no material fact question exists, the burden of production does not shift to the non-moving party. See First Nat'l Bank v. Cities Servs. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592-93, 20 L. Ed. 2d 569 (1968); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727, at 143-44 (2d ed. 1983). The movant may satisfy its burden by demonstrating that if the case went to trial there would be no competent evidence to support a judgment for his opponent. See 10A C. Wright, A. Miller & M. Kane, supra, § 2727, at 130. See also In re Japanese Electronic Prods. Antitrust Litigation, 723 F.2d 238, 258 (3d Cir.1983), cert. granted, ___ U.S. ___, 105 S. Ct. 1863, 85 L. Ed. 2d 157 (1985).
Defendant has satisfied its burden in this case. It has offered the plaintiff's answers to interrogatories, which show that plaintiff has been unable to link John Crane products to his injury.[1] Consequently, the burden is shifted to plaintiff to produce some evidence that he was exposed to John Crane products.
In this regard, the instant case differs from Catrett v. Johns-Manville Sales Corp., 756 F.2d 181 (D.C.Cir.1985), where the D.C. Circuit held that the burden on summary judgment does not shift to the non-moving party where the moving party simply alleges in its motion that the non-moving party could not produce any evidence in support of her allegations. Id. at 186-87. Because John Crane has offered plaintiff's answers to interrogatories, it cannot be said to be relying on unsupported assertions in its motion, and the Catrett rationale is thus not controlling. Indeed, the Catrett majority expressly distinguished the instant situation in a footnote, stating that it was not addressing "the situation where a manufacturer, sued by a remote user of its product, seeks to comply with Rule 56 but simply cannot `prove the negative' of non-use or non-exposure without reference to evidence in the hands of the plaintiff."[2]See id. at 184 n. 9. Moreover, the Third Circuit appears to have expressly endorsed the practice of a moving party's relying on an opponent's evidence. See In re Japanese Electronic Prods. Antitrust Litigation, 723 F.2d 238, 258 (3d Cir.1983) ("Rule 56(c) does not exclude the grant of summary judgment on the basis of materials originating entirely with the opponents of the motion"), cert. granted, ___ U.S. ___, 105 S. Ct. 1863, 85 L. Ed. 2d 157 (1985).
*129 Having concluded that defendant adequately shouldered its initial burden, the question becomes whether plaintiff has presented or can point to evidence in the record that would demonstrate a dispute as to a material fact. Even granting plaintiff all reasonable inferences as I must, plaintiff has not met his burden of producing evidence that he was exposed to John Crane asbestos products.
In Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985), the court of appeals, applying Georgia law in a products-liability asbestos case, affirmed an award of summary judgment to a defendant where plaintiff had not produced evidence that he worked in the vicinity of defendant's asbestos-containing products which were being applied at plaintiff's workplace. Id. at 1481-82. The court observed that although the plaintiff had shown that he was present in the workplace at the time the product was used, he had not shown that he was in the vicinity of the product's use. Id. at 1481.
Similarly, in Anastasi v. Pacor, Inc., May Term, 1978 No. 6751 (Pa.C.P.Phila. March 8, 1983), the court of common pleas overturned a jury verdict against a manufacturer of asbestos products, stating that although there was evidence that the manufacturer supplied products to plaintiff's decedent's workplace, the Philadelphia Naval Shipyard, there was no showing of where in the shipyard the decedent worked or the asbestos was used. Id., slip op. at 5-6.
From these cases it is clear that defendant's motion must be granted. While the Angello deposition shows that John Crane asbestos products may have been present in the Jersey City facility, plaintiff has offered no evidence that he worked in the vicinity of those products. Mr. Angello's deposition shows that there may have been John Crane asbestos products in the engine terminal, but provides no support for the proposition that there were any asbestos products in the rail facility outside the terminal. In fact, Mr. Angello expressly stated that he was not exposed to asbestos when he worked in the carmen's yard. See Angello deposition at 36, 84 & 137.
Other than the unsubstantiated statements by plaintiff's counsel at oral argument that Mr. Angello knew Mr. Pongrac and worked with him, there is no record evidence of where plaintiff worked in the rail facility. Consequently, I cannot say that there is even a reasonable inference from the record evidence that plaintiff was exposed to John Crane asbestos products and summary judgment must be granted in favor of John Crane.[3]
NOTES
[1] Defendant has also met its threshold burden with respect to the cross-claim asserted by codefendants.
[2] The Catrett panel was not unanimous in reaching its result. Judge Bork issued a strong dissent, contending that the majority's opinion undermined the trial court's power to grant summary judgment in meritless cases. Id. at 187 (Bork, J., dissenting). In Judge Bork's opinion, the difficulty of proving a negative coupled with the probability that the decision would lead to a trial followed by a directed verdict for defendant counseled in favor of affirming the district court's award of summary judgment. Id.
[3] For the same reasons, John Crane will have summary judgment granted in its favor on all cross-claims by co-defendants.
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302 S.C. 353 (1990)
396 S.E.2d 124
Jo Ann Curtis BRANDI, Respondent
v.
Robert R. BRANDI and Bob Brandi Stations, Inc., Appellants.
1547
Court of Appeals of South Carolina.
Heard August 20, 1990.
Decided September 17, 1990.
*354 S. Jahue Moore, of Kirkland, Taylor, Wilson, Moore, Allen & Deneen, West Columbia, for appellants.
John M. Williamson, III, Columbia, for respondent.
Heard Aug. 20, 1990.
Decided Sept. 17, 1990.
*355 Per Curiam:
This is a domestic case. The parties were married ten years. The court granted the wife a divorce on the ground of adultery. The court awarded $1500 per month in alimony to the wife and a thirty percent equitable interest in the marital property. Additionally, the court awarded attorney fees and costs to the wife. The husband appeals the decision in various respects. We affirm in part, reverse in part, and remand.
EQUITABLE DISTRIBUTION OF MARITAL PROPERTY
The parties were married in 1978. At the time of the marriage, Mr. Brandi was operating a leased Texaco station. Mrs. Brandi was employed at a state agency. Mr. Brandi recognized the trend toward convenience stores as opposed to full service gasoline stations. In the early 1980's Mr. Brandi located and purchased the first of several sites on which he constructed a convenience store. By the time the parties separated and marital litigation was commenced, Mr. Brandi had opened four convenience stores.[1]
Shortly after the marriage, Mrs. Brandi left state employment and began a typing business. The business was opened with the financial assistance of Mr. Brandi. During the eight years of operation Mrs. Brandi testified she knew nothing about the financial condition of the business because it was handled through Mr. Brandi's operations. The typing business was sold during the marriage for $15,000. Mrs. Brandi testified she worked at one of the convenience stores for the final two years of the marriage as a paid employee. During 1987 she earned approximately $7500. Her employment was terminated in 1988 after the parties' separation.
The parties achieved an affluent lifestyle during the marriage. The marital residence was sold for $250,000 with a realization of $164,000 in equity which they equally divided. The Brandis also owned substantial personal property and had certificates of deposit and I.R.A. accounts valued at $67,000.
The family court held the net value of the marital property, *356 exclusive of the residence, was $1,716,216.10. The court awarded Mrs. Brandi a thirty percent interest valued at $514,864.83. To effect this division, the court awarded her a lake lot and required Mr. Brandi to pay the balance in cash within six months.
Mr. Brandi challenges the family court's finding that the business was marital property. He also asserts error in the valuation of the business and the apportionment of thirty percent of the marital property to Mrs. Brandi.
S.C.Code Ann. Section 20-7-473 (Cum.Supp. 1989) defines marital property as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation ... regardless of how legal title is held." Under this definition the business property acquired by Mr. Brandi during the course of the marriage, including the four convenience stores in question, is marital property. He argues the stores are not marital property because they were acquired based upon his good credit reputation and income generated from the leased Texaco station. We reject this argument. While Mr. Brandi's good credit reputation may be considered by the court as a contribution by him to the acquisition of the convenience stores, it cannot be considered real or personal property. Any income Brandi received from the leased Texaco station after the marriage of the parties constituted marital property. Mr. Brandi has not established what, if any, premarital assets were utilized in financing the convenience stores. The burden to show an exemption under S.C. Code Ann. Section 20-7-473 is upon the one claiming that property acquired during the marriage is not marital. Roberts v. Roberts, 296 S.C. 93, 370 S.E. (2d) 881 (Ct. App. 1988), aff'd as modified, 299 S.C. 315, 384 S.E. (2d) 719 (1989). We affirm the inclusion by the family court of the Ballentine, Lexington, Irmo, and Chapin convenience stores as marital property.
Mr. Brandi also challenges the valuation of the business. Both parties presented real estate appraisals of the convenience stores. Mr. Brandi also presented the testimony of his accountant. The accountant utilized Mr. Brandi's real estate appraisals as well as monthly financial statements to present evidence of the assets and liabilities of *357 the Brandis. In its order, the family court utilized the real estate appraisals presented by Mrs. Brandi to derive a value for the land and building at each location. The court then deducted the mortgage balance to compute an equity value for each business site. The court also valued and included as marital property the stock held by Mr. Brandi in Bob Brandi Station Inc., a subchapter S corporation.
We find the method used to value the business flawed. The business is to be valued at its fair market value as a going business.[2]Reid v. Reid, 280 S.C. 367, 312 S.E. (2d) 724 (Ct. App. 1984). While there was no error in utilizing the real estate appraisals offered by Mrs. Brandi, as opposed to those of Mr. Brandi, the valuation should also have considered other factors such as inventory, accounts payable and receivable, and other legitimate assets or liabilities. This court has reviewed the three volume record and specifically the testimony of Mr. Brandi's accountant. We hoped to resolve this matter on the record. However, the charts utilized by the accountant are not in the appellate record. Accordingly, we remand the issue of valuation of the business to the family court.
A third issue in the equitable apportionment is the thirty percent share of the marital estate awarded to Mrs. Brandi. The factors a court must consider in making an apportionment are outline in S.C. Code Ann. Section 20-7-472 (Cum. Supp. 1989). The marriage lasted ten years. The parties are of approximately the same age, but the husband is in better health. The court found marital misconduct by Mr. Brandi which caused the breakup of the marriage. Mr. Brandi has demonstrated a greater earning capacity and has far greater nonmarital assets. He has made most of the direct contributions to the acquisition of the marital property while Mrs. Brandi's contributions have been primarily indirect contributions as a homemaker. The apportionment of the marital estate is a matter left to the sound discretion of the trial court. Rampey v. Rampey, 286 S.C. 153, 332 S.E. (2d) 213 (Ct. App. 1985). The family court may use any reasonable means to effectuate an equitable division. Bass v. Bass, 285 S.C. 178, *358 328 S.E. (2d) 649 (Ct. App. 1985). Clearly, the award to the wife was most liberal. However, we cannot say it amounted to an abuse of discretion. See Winchell v. Winchell, 291 S.C. 321, 353 S.E. (2d) 309 (Ct. App. 1987) (wife awarded 50 percent interest based largely on indirect contributions); Chastain v. Chastain, 289 S.C. 281, 346 S.E. (2d) 33 (Ct. App. 1986) (court abused its discretion in awarding a middle aged husband only 25 percent equity in marital home); Brooks v. Brooks, 289 S.C. 352, 345 S.E. (2d) 510 (Ct. App. 1986).
We affirm the order of the family court so far as it includes the four convenience stores as marital property. We also affirm the thirty percent apportionment to Mrs. Brandi. We reverse and remand for a revaluation of the business.
ALIMONY
The family court awarded Mrs. Brandi $1500 per month in permanent periodic alimony. Mr. Brandi argues this is error. We reverse and remand the award of alimony for reconsideration.
In making the award the family court found Mr. Brandi had substantial income and assets. The judge also found the parties had enjoyed a high standard of living. The record indicates Mrs. Brandi had not procured employment since her separation although she is an expert typist. She was living in a three bedroom condominium on Lake Murray.
We find the trial judge abused his discretion in the award of alimony because Mrs. Brandi's expenses appear excessive when considered in conjunction with the fact she has not procured employment since her separation. Although alimony is a substitute for the support normally incident to the marital relationship, it should not serve as a disincentive for a spouse to improve his or her employment potential or to dissuade the spouse from providing, to the extent possible, for her own support. Johnson v. Johnson, 296 S.C. 289, 372 S.E. (2d) 107 (Ct. App. 1988), cert. den., 298 S.C. 117, 378 S.E. (2d) 445 (1989). We also are inclined to remand this issue for further consideration given our remand of the valuation of the business. We believe the family court should give further consideration in the alimony award to the amount of marital property Mrs. Brandi will receive in the equitable distribution.
*359 EXCLUSION OF WITNESS TESTIMONY
Mr. Brandi asserts the family court erred in excluding the testimony of two witnesses. These witnesses would purportedly have testified concerning adultery by Mrs. Brandi. One witness worked at a dry cleaner and would have testified Mrs. Brandi brought her laundry to the dry cleaner in the company of a man. The other witness apparently would have testified to adultery by Mrs. Brandi. This person was not identified nor was a full proffer of proof permitted by the court. The court excluded the testimony of the witnesses because their names were not timely supplied to counsel for Mrs. Brandi. According to the record the second witness was not identified until the night before trial.
We find no prejudicial error by the exclusion of the testimony of the dry cleaner employee. According to the proffer, she would have testified Mrs. Brandi delivered her laundry in the company of a man. Even if admitted, this evidence does not prove adultery.
The second witness would purportedly testify to adultery by Mrs. Brandi. According to the record this witness was discovered and identified to opposing counsel the night before trial. The court excluded the witness finding the witness was identified too late to afford an opportunity for a deposition.
It does not appear counsel for Mr. Brandi willfully violated S.C.R. Civ. P. 33 by failing to supplement answers to interrogatories. The record supports the inference the witness was literally discovered the night before trial. Since exclusion of a witness is a severe sanction the court should inquire into (1) the type of witness involved; (2) the content of the evidence to be presented; (3) the nature of the failure to identify the witness; and (4) the degree of surprise to the other party. Moran v. Jones, 281 S.C. 270, 315 S.E. (2d) 136 (Ct. App. 1984); Laney v. Hefley, 262 S.C. 54, 202 S.E. (2d) 12 (1974).
Since this case is being remanded to the family court on other issues we deem it appropriate to remand this matter also. Under the circumstances we find counsel for Mr. Brandi should notify counsel for Mrs. Brandi of the name of this witness upon receipt of this opinion. Mrs. Brandi will then have the opportunity to contact or depose this person if necessary. *360 We also find Mrs. Brandi should have the opportunity to call rebuttal witnesses if deemed necessary.
PREJUDICE OF THE TRIAL COURT
Mr. Brandi argues the family court judge acted in a prejudicial manner by indicating the parties had only two days to try the case and by making remarks during the course of the trial indicating his impatience with the progress of the case. Apparently, the family court judge was assigned to the case after the pretrial conference had been held and the case assigned two days for trial.
We have completely reviewed the record. It appears to us the parties were able to present their cases fully during the two day trial. Mr. Brandi has not pointed out any evidence he was not allowed to admit because of the time constrictions. The court did on occasion indicate the case should progress faster but we note this was often done because of repetitious testimony. We find no evidence in the record of prejudice on the part of the trial judge and this exception is without merit.
ATTORNEY FEES AND COSTS
The family court awarded Mrs. Brandi $10,000 in attorney fees and costs of $11,000. The record indicates Mrs. Brandi retained counsel at an hourly rate of $100. She had incurred unpaid fees as of the date of hearing totaling $10,043.26. Mr. Brandi had paid $2500 in fees during the pendency of the case as required by court order. The costs included private investigator fees, appraisal fees, and accounting fees.
The award of attorney fees and costs in a domestic action is a matter within the sound discretion of the trial judge and the award will not be reversed absent an abuse of discretion. Donahue v. Donahue, 299 S.C. 353, 384 S.E. (2d) 741 (1989). The factors to be considered have been enumerated many times. See Strickland v. Strickland, 297 S.C. 248, 376 S.E. (2d) 268 (1989).
Upon our review of the record we do not find the family court abused its discretion in the award of fees and costs.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] These stores were owned by Bob Brandi Stations, Inc. whose stock was solely owned by Mr. Brandi. The stores are the Ballentine Pitt Stop, Irmo Pitt Stop and empty lot, Lexington Pitt Stop, and Chapin Pitt Stop.
[2] We remind the trial court on remand that it is improper to include both the value of the assets and the stock of Bob Brandi Stations, Inc. in the marital estate.
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333 S.E.2d 766 (1985)
William C. FRYKBERG
v.
Nancy C. FRYKBERG.
No. 8426DC1333.
Court of Appeals of North Carolina.
September 3, 1985.
*770 No counsel for plaintiff-appellee.
James, McElroy & Diehl, P.A. by William K. Diehl, Jr., Charlotte, for defendant-appellant.
HEDRICK, Chief Judge.
The central issue on this appeal is whether the court erred in treating the separation agreement as a court order, subject to modification, under the terms of the consent judgment entered 16 February 1981. For the reasons set forth below, we hold that the court erred in its ruling, and accordingly vacate in part the judgment entered.
Because of "great confusion" generated by the "dual consent judgment approach," our Supreme Court recently abolished the traditional distinction in domestic law between consent judgments in which *771 the court merely approves or sanctions a contractual agreement between the parties, and those in which the court adopts as its own, and thus incorporates into the judgment, the parties' agreement. Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). Prior to the Court's decision in Walters, a separation agreement that was not incorporated into the consent judgment was treated as a court-approved contract, rather than a judgment, and was thus modifiable only by consent of the parties or through other traditional contract channels. See Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964); Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978). Walters expressly overruled Bunn and Levitch, however, and held that "whenever the parties bring their separation agreements before the court for the court's approval," the agreement will thereafter be treated not as a contract but rather as a "court ordered judgment ... modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case." Walters, 307 N.C. at 386, 298 S.E.2d at 342.
Were Walters applicable to the facts of the instant case, we would have no difficulty in affirming the order appealed from. The Court in Walters, however, expressly limited the application of the new rule adopted to that case "and all such judgments entered after this decision." Id. See also Doub v. Doub, 68 N.C.App. 718, 315 S.E.2d 732 (1984), modified and aff'd, 313 N.C. 169, 326 S.E.2d 259 (1985). Walters thus has no application in the instant case, in which the consent judgment was entered in 1981, and we must thus examine the court's order in light of the law prior to Walters.
We note at the outset that, under the clear terms of the 1981 consent judgment, the separation agreement was not incorporated into that judgment. Where a separation agreement is merely approved, rather than adopted, by the court under the terms of a consent judgment, it may not be modified or set aside by the court unless the parties consent. Bunn 262 N.C. at 69, 136 S.E.2d at 242. Thus the court erred in concluding that the provisions of the separation agreement regarding alimony were modifiable.
Defendant also assigns error to the court's conclusions that two provisions of the separation agreement were unenforceable and void as against public policy. We agree that the court erred in these conclusions, noting that the error in each case arose from Judge Sherrill's initial mischaracterization of the type of consent judgment before him.
In the first instance, the court concluded that the provision in the separation agreement that child support payments would increase automatically based on the Consumer Price Index was void because such automatic variations give no consideration to the means or abilities of the parties and the needs of the child. It was for precisely this reason that this Court, in Falls v. Falls, 52 N.C.App. 203, 278 S.E.2d 546, disc. rev. denied, 304 N.C. 390, 285 S.E.2d 831 (1981), refused to sustain a similar provision in a court order for child support. The Falls Court also said, however:
[W]e do not seek to discourage parties who, with a spirit of fairness and concern for their children, stipulate to a COLA formula for child support [since such a stipulation would seem to minimize] the risks of yearly resistance to increased support, with attendant legal expense and animosity.
Id. at 221, 278 S.E.2d at 558 (citation omitted). We thus hold that the provision for automatic increases in child support as a function of the Consumer Price Index, contained in the contractual agreement of the parties and not incorporated into the consent judgment, is not void as against public policy. Consequently, the court's calculation of arrearages owed by plaintiff to defendant, based on its holding that plaintiff's monthly child support obligation is in the amount of $300, is erroneous, and defendant is entitled to recover the full amount due under the terms of the separation agreement. Our holding in this regard *772 in no way affects or lessens the court's well-recognized inherent authority to modify the separation agreement upon a showing that such modification is necessary to insure protection of the interests and welfare of the minor child. McKaughn v. McKaughn, 29 N.C.App. 702, 225 S.E.2d 616 (1976).
The court also struck as void the provision in the separation agreement "which purports to `fix' alimony at $1,000 per month." In Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982), the Supreme Court noted that, in consent judgments in which the court adopts the parties' agreement as its order, a provision which purports to prohibit modification of alimony obligations is void because it conflicts with the public policy of our State as set out in G.S. 50-16.9(a):
An order of a court of this State for alimony ... whether contested or entered by consent, may be modified ... at any time....
(Emphasis added.) In the instant case, however, the separation agreement provisions governing modification of alimony obligations never became part of a court order, and in no way do they offend public policy.
The result is: those portions of the judgment holding that the separation agreement is subject to modification by the court and striking as void as against public policy two provisions of that agreement are vacated; that part of the judgment awarding attorney fees, ordering plaintiff to pay defendant as alimony the amount of $1,000 per month, and that part of the judgment dismissing defendant's claim for reimbursement of tuition is affirmed; that part of the judgment ordering plaintiff to pay arrearages is affirmed; however, the cause is remanded to the district court for entry of an order requiring plaintiff to pay arrearages in the amount of $8,769.00, rather than $6,718.00.
Affirmed in part, vacated in part, and remanded.
ARNOLD and COZORT, JJ., concur.
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254 Ga. 658 (1984)
333 S.E.2d 574
MINESS
v.
MINESS.
42085.
Supreme Court of Georgia.
Decided September 4, 1984.
John E. Pirkle, for appellant.
A. G. Wells, Jr., for appellee.
GREGORY, Justice.
In this action to set aside a deed of gift, the jury found for the plaintiffs and the trial court entered an order cancelling the deed and vesting the property in the estate of the deceased grantor. Defendant, the grantee, now appeals.
Dorothy Miness, the grantor, was very ill during late 1982 and early 1983. In November 1982, she underwent surgery for a gangrenous leg and had part of her intestine removed. She had additional surgery in late January 1983. On February 1, 1983, Mrs. Miness executed a deed of gift to her son James Ellis Miness (appellant) conveying approximately 35.6 acres in two tracts of land in Liberty County. Ellis had farmed the property since the death of his father. The deed was executed in Mrs. Miness' room in a Savannah hospital. The only parties present in addition to Mrs. Miness were James Ellis Miness, his wife, and Archie Zorn, a friend of the family and notary public who had accompanied the Miness couple at the request of Ellis Miness. Zorn witnessed Mrs. Miness sign the deed and notarized it. Mrs. Miness left the hospital on February 19, 1983. She died June 7, 1983.
Appellees are heirs of Mrs. Miness and the executor under her will. They filed suit claiming the deed was invalid because Mrs. Miness was not mentally competent at the time of execution, that it was procured by fraud since Ellis Miness knew that his mother was incompetent, and that Ellis exercised undue influence in procuring his mother's signature.
1. Ellis Miness enumerated as error the refusal of the trial court to allow the testimony of witness Zorn as to a statement made by Mrs. Miness on the occasion of the execution of the deed in question. The heirs and executor argue the decision of the trial court was correct because the statement was hearsay and fit within none of the recognized exceptions to the rule against hearsay. We hold the statement *659 was not hearsay.
Zorn first testified he accompanied Ellis Miness to his mother's hospital room where a brief conversation ensued concerning the families of Zorn and Miness. When asked what then happened, Zorn replied: "Then she asked Ellis if he had the paper that was in question and he said, `Yes, ma'am,' and she said she wanted to see it. She looked at it for a few minutes and said, `Ellis, it's not all here.' He said, `What you mean, Mama?' and she said, `Well, you was supposed to. . . .'" At that point the witness was interrupted, counsel precluded from pursuing the line of questioning, the testimony stricken, and the jury admonished to disregard it. During jury deliberations counsel was allowed to make an offer of proof. Counsel stated that, if allowed to do so, Zorn would have testified that Mrs. Miness examined the deed and said, "That's not all the property?" And Ellis responded, "No, that's all." The two then had a conversation back and forth.
McCormick defines hearsay evidence as ". . . testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." McCormick on Evidence, 2nd ed., § 246, p. 584 (1972). The crux of this case as presented below was whether Mrs. Miness was mentally competent to make a deed. It was the condition or state of her mind which would determine the outcome of this issue. Statements she made at relevant times are evidence of the state of her mind. Sturkie v. Skinner, 214 Ga. 264 (104 SE2d 417) (1958). Rational statements indicate a rational mind while irrational statements indicate the converse. Thus, we see that Zorn's in-court testimony of Mrs. Miness' statement made out of court was not offered to prove the matter asserted therein that Mrs. Miness owned other property but to prove that she was aware of her property and what she was about to do with regard to it which, in turn, demonstrated the state of her mind. The value of the evidence rests upon the veracity of Zorn, not Mrs. Miness. Therefore, the evidence was not hearsay and it was error to exclude it.
2. The issue in Division 1 is again presented in enumerations of error 2, 3 and 4 regarding witnesses Mobley, Raeford and McLamb. The rule we follow regarding witness Zorn will apply in each instance. On retrial there must, as the trial court pointed out in the first trial, be evidence showing when the conversations occurred in order to establish their relevance.
3. In the fifth enumeration of error Ellis Miness complains that the trial court did not allow counsel to complete the direct examination of witness McLamb. However, this issue was not raised below and will not be considered on appeal. Hudson v. State, 250 Ga. 479, *660 484 (299 SE2d 531) (1983).
Judgment reversed. All the Justices concur.
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396 S.E.2d 863 (1990)
Charles GROVER
v.
COMMONWEALTH of Virginia.
Record No. 1065-88-4.
Court of Appeals of Virginia.
October 2, 1990.
Susan L. Korfanty, Deputy Public Defender (Jonathan Y. Short, on briefs), for appellant.
Birdie H. Jamison, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KEENAN, MOON and WILLIS, JJ.
OPINION
KEENAN, Judge.
Charles Grover appeals his conviction on one count of possession of cocaine. The sole issue on appeal is whether the cocaine seized by the police from the hotel room where Grover was arrested was obtained in violation of his fourth amendment rights. We find that the trial court did not err in deciding that the officer's insertion of a passkey into the lock of the hotel room door, prior to the officer's knocking and announcing his presence, did not constitute a violation of Grover's fourth amendment rights. Accordingly, we affirm the decision of the trial court.
*864 The facts surrounding Grover's arrest are as follows. On March 1, 1988, Officer Ratliffe arrived at the Radisson Hotel to execute a search warrant on one of the rooms. When he arrived at the room, he slipped one of the fifteen passkeys he had been given into the lock located on the outside of the door. While inserting the key into the lock, Ratliffe heard movement on the other side of the door. He held the key in his left hand, knocked with his right hand three or four times, and identified himself as a police officer with a warrant. After waiting five to six seconds, Ratliffe turned the key in the lock. As the lock turned, Ratliffe pushed the door open five to six inches. At that point, the door was stopped by a throw bolt. Ratliffe saw Grover standing inside the room and directed him to open the door. When Grover ran from the door, Ratliffe forcibly snapped the throw bolt and entered the room. He found Grover throwing a pipe, which was later found to contain cocaine residue, into the toilet.
Both Grover and the Commonwealth acknowledge that "no-knock" entries to search pursuant to search warrants are per se unreasonable unless accompanied by exigent circumstances. See Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 845 (1981). In the case before us, the trial court specifically found that the hotel room door was not opened until after Officer Ratliffe knocked and announced both his identity and his purpose. The issue we must decide, therefore, is whether the insertion of the pass key into the lock of the hotel room door was an entry to search such that Officer Ratliffe was required to either knock and announce his identity and purpose prior to inserting the key into the lock, or justify a "no-knock entry" by the existence of exigent circumstances. We hold that the action in question did not constitute an entry.
The Supreme Court first considered the validity of a "no knock entry" in the execution of a search warrant in Johnson v. Commonwealth, 213 Va. 102, 189 S.E.2d 678 (1972). The Court noted that no specific statute existed relating to "no knock entries." Id. at 103, 189 S.E.2d at 679. Thus the validity of the search had to be judged in terms of its reasonableness within the meaning of the fourth amendment to the United States Constitution and Article I, § 10 of the Constitution of Virginia. After examining the common law origins of the "knock and announce" requirement, the court refused to adopt an absolute requirement that officers knock and announce their identity and purpose prior to entering the dwelling of another to execute a search warrant. Id. at 105, 189 S.E.2d at 680. Instead, the Court ruled that the evidence obtained pursuant to the officers' no-knock entry was admissible because the method of entry was reasonable in light of the exigent circumstances facing the officers.
Subsequently, in Heaton v. Commonwealth, 215 Va. 137, 207 S.E.2d 829 (1974), the Court articulated the circumstances in which an unannounced entry would be considered reasonable for fourth amendment purposes:
Generally, police officers, before resorting to forced entry into premises to be searched under warrant, must attempt to gain admittance peaceably by announcing their presence, identifying themselves as police officers and stating their purpose. Exceptions to the general rule, however, permit officers to make an unannounced entry where they have probable cause to believe that their peril would be increased if they announced their presence or that an unannounced entry is necessary to prevent persons within from escaping or destroying evidence. Unless an exception can be established by the prosecution, evidence seized after a "no-knock" entry is excluded under the fourth amendment.
Id. at 138, 207 S.E.2d at 830.
In the case before us, Officer Ratliffe testified that he had a search warrant for room 2817 of the Radisson Hotel in Alexandria. When he arrived at the room, he had in his possession a large key chain with approximately fifteen different keys on it which had been given to him by the hotel personnel. He stated that he was not certain which key would open the door so he *865 slipped one of the keys into the lock. The key fit the lock and appeared to be the correct one. Ratliffe indicated that he inserted the key in order to be ready in case the door was not opened. He then knocked three or four times and identified himself as a police officer with a search warrant. Ratliffe testified that as he was inserting the key into the lock he heard a noise on the other side of the door, as if someone was leaning against the door or placing something against it.
On this record, we find that the insertion of the pass key into the lock did not amount to an unannounced entry. Officer Ratliffe's action was merely preparatory, enabling him, if necessary, to act quickly once he had knocked and announced his identity and purpose. Consequently, he was under no obligation to knock and announce his presence prior to inserting the key into the lock. Further, we find that under these circumstances, Officer Ratliffe's insertion of the key into the lock prior to knocking and announcing his identity and purpose was reasonable, and therefore, did not violate Grover's fourth amendment rights. See Rodriguez v. Butler, 536 F.2d 982 (2d Cir.1976), cert. denied, 429 U.S. 943, 97 S.Ct. 362, 50 L.Ed.2d 313 (1976) (the question of whether an activity is reasonable within the meaning of the fourth amendment is necesarily tied to the particular facts and circumstances of the case); Johnson, 213 Va. at 103, 189 S.E.2d at 679.
Grover argues that Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), requires a different result. In Sabbath, the Supreme Court examined whether Sabbath's arrest was unlawful because the officers opened a closed but unlocked door without knocking and announcing their identity and purpose before Court determined that the officers' entry was in violation of 18 U.S.C. § 3109[1] and reversed Sabbath's conviction. Id. at 591, 88 S.Ct. at 1759. In reaching this conclusion, Justice Marshall reasoned: "An unannounced intrusion into a dwelling what § 3109 basically proscribes is no less an unannounced intrusion whether officers break down a door, open a locked door by use of a passkey, or, as here, opened a closed but unlocked door." Id. at 589, 88 S.Ct. at 1758. The Court likened the requirement of "breaking" as used in § 3109 to its use in the burglary context: "lifting a latch, turning a door knob, unhooking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house, even a closed screen door." Id. at 589 n. 5, 88 S.Ct. at 1758 n. 5.
Grover acknowledges that the General Assembly has not adopted a statutory "knock and announce" rule similar to 18 U.S.C. § 3109. He claims, however, that the rule articulated by the Virginia Supreme Court in Heaton embraces the common law polices underlying 18 U.S.C. § 3109. Grover maintains that Officer Ratliffe's action was a "breaking" as that term was defined in Sabbath and thus the trial court erred by refusing to suppress the evidence seized from the hotel room.
We disagree that the rule articulated in Heaton requires such a result. The Virginia Supreme Court has repeatedly declined to analyze the validity of a "no-knock entry" in terms of the "breaking" requirement embodied in 18 U.S.C. § 3109, focusing instead on the reasonableness of the method of entry. See, e.g. Johnson, 213 Va. at 103, 189 S.E.2d at 679; Heaton, 215 Va. at 139, 207 S.E.2d at 831; Keeter, 222 Va. at 141, 278 S.E.2d at 845-46. In addition, the General Assembly has yet to enact a statute similar to 18 U.S.C. § 3109. We find that Officer Ratliffe's method of entry was consistent with Virginia law and the fourth amendment.
For the reasons stated, the opinion of the trial court is affirmed.
Affirmed.
NOTES
[1] 18 U.S.C. § 3109 reads as follows: "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."
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175 Ga. App. 262 (1985)
333 S.E.2d 5
SMITH
v.
FOUNDERS LIFE ASSURANCE COMPANY OF FLORIDA.
70485.
Court of Appeals of Georgia.
Decided June 10, 1985.
Rehearing Denied June 28, 1985.
John R. Francisco, for appellant.
Lamar W. Sizemore, Jr., William H. Major, for appellee.
BANKE, Chief Judge.
Daisy Smith sued Founders Life Assurance Company to recover $22,000 in death benefits allegedly owed her pursuant to a group insurance policy covering the employees of the Macon-Bibb County Water and Sewerage Authority, which had employed her deceased husband, George Edward Smith, prior to his death. She also sought a bad-faith penalty, punitive damages, and attorney fees pursuant to OCGA § 33-4-6. Concluding as a matter of law that Mr. Smith was not covered under the terms of the policy, the trial court granted the insurance company's motion for summary judgment and denied Mrs. Smith's motion for summary judgment. Mrs. Smith appeals.
After working for the Macon-Bibb County Water and Sewerage Authority for many years, Mr. Smith was forced to cease working on March 24, 1983, due to the illness which ultimately resulted in his death. At the time of his death, which occurred on June 6, 1983, he was considered by the Authority to be a full-time employee on sick leave.
Prior to June 1, 1983, the Authority's employees, including Mr. Smith, had been covered by a policy of group insurance issued by Prudential Insurance Company. The Prudential policy expired on that date and was replaced by a policy issued by the appellee, Founders Life Assurance Company. Founders Life denied Mrs. Smith's claim for death benefits on the ground that Mr. Smith had not been "actively employed" or "actively working" between the effective date of the policy and the date of his death. Thereafter, Mrs. Smith submitted a claim for death benefits to Prudential Insurance Company, which paid her the full amount of such benefits due under the terms of its policy.
The Founders policy specifies that "each employee actively employed 30 or more hours per week . . . on the date of issue hereof is eligible for insurance from the date of issue . . ." However, the policy further provides as follows: "EFFECTIVE DATES OF INSURANCE. Each eligible employee shall become insured automatically on the date he becomes eligible for insurance except that an employee who is not actively at work . . . on such date shall not become insured until the next following day on which he is actively at work . . ." (Emphasis supplied.) The term "actively at work" is defined elsewhere in the policy to mean "the actual expenditure of time and energy in the service of the employer . . ."
Although Mr. Smith was undoubtedly "actively employed" by the Authority at the time of his death and was thus an "eligible" employee under the terms of the policy, it is undisputed that he had not *263 been "actively at work" at any time between the date of his death and the policy's issue date. Therefore, under the unambiguous provisions of the policy governing the "effective dates of insurance," the coverage never took effect as to him. It necessarily follows that the trial court was correct in granting Founders Life's motion for summary judgment and in denying the appellant's motion for summary judgment. Accord Wilson v. Union Labor Life Ins. Co., 114 Ga. App. 330 (151 SE2d 550) (1966). We reject the appellant's contention that a fact issue exists as to whether the coverage became effective by estoppel, there being no suggestion in the record that Founders Life ever collected any premium payments from Mr. Smith, through the agency of his employer or otherwise. This fact distinguishes the present case from such cases as Cason v. Aetna Life Ins. Co., 91 Ga. App. 323, 332 (85 SE2d 568) (1954), and American Home Mut. Life Ins. Co. v. Harvey, 99 Ga. App. 582 (1) (b) (109 SE2d 322) (1959). See generally Dawes Mining Co. v. Callahan, 246 Ga. 531, 533-534 (272 SE2d 267) (1980); McFarland v. Business Men's Assur. Co., 105 Ga. App. 209 (4) (124 SE2d 432) (1962).
Judgment affirmed. McMurray, P. J., and Benham, J., concur.
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851 P.2d 459 (1993)
Bashir A. CHOWDHRY, M.D., Appellant,
v.
NLVH, INC., a Nevada corporation, dba Community Hospital of North Las Vegas, Sally Lapica, Special Administratrix of the Estate of Andrew Lapica, M.D., Deceased, Marian Dreihaupt, Special Administratrix of the Estate of Lawrence Wilchins, M.D., Deceased, Frank Silver, M.D., Charles W. Moore, and American Health Care Management Home Care, Inc., a Texas corporation, Respondents.
No. 21344.
Supreme Court of Nevada.
May 7, 1993.
*460 Gentile, Porter & Kelesis, Las Vegas, for appellant.
Barker, Gillock, Koning & Brown and Bruce S. Kickinson, Las Vegas, for respondent Sally Lapica.
Alverson, Taylor, Mortensen & Nelson and Daniel E. Curriden, Las Vegas, for respondents NLVH, Inc., Marian Dreihaupt, Frank Silver, Charles W. Moore and American Health Care Management Home Care, Inc.
OPINION
PER CURIAM:
FACTS
The incident which precipitated this litigation occurred in the early morning hours of October 2, 1985. Shortly after midnight, a young woman entered the emergency room of the respondent hospital North Las Vegas Hospital ("NLVH"), complaining of chest pain and shortness of breath. She was seen by respondent Andrew Lapica, the emergency physician on duty. Lapica diagnosed the patient as suffering from a possible pneumohemothorax[1] which required the placement of a chest tube to drain accumulated fluids. Lapica contacted appellant Dr. Bashir A. Chowdhry, a physician who had performed recent surgery on the young woman and who was also the on-call thoracic surgeon at NLVH. Lapica told Chowdhry that his services were required at NLVH. However, the details of the ensuing conversation are disputed.
The record reveals that Chowdhry refused to return to NLVH to treat the patient because he had recently left there, and would only treat her if she were transferred to University Medical Center ("UMC") (then known as Southern Nevada Memorial Hospital) or Humana Sunrise Hospital ("Sunrise"). Chowdhry testified that he could not tend to the patient at NLVH because of a conflicting emergency at UMC; however, Chowdhry admittedly failed to inform anyone at NLVH of this conflict.
Having received no assurances from Chowdhry that he would return to NLVH, Lapica contacted NLVH's Chief of Staff, respondent Lawrence Wilchins.[2] Lapica related the events to Wilchins, stating in particular that Chowdhry refused to come to NLVH and attend to his patient. Lapica then sought Wilchins' advice on how to proceed. Both physicians concluded that if the patient could be safely transported to Sunrise, the transfer should be effected so she could be treated by Chowdhry.
Lapica contacted the emergency room doctor at Sunrise, explained the nature and basis of the problem, and received permission to transfer the patient. The patient was ultimately transported to Sunrise, where she was treated by Chowdhry.
Lapica and Barbara Crow, the supervising nurse at NLVH, prepared incident reports detailing the morning's events and submitted them to the hospital administrator, *461 respondent Charles Moore. On the following day, October 3, 1985, Moore informed respondent Frank Silver, then Chief of Surgery, that Chowdhry had refused to come to the NLVH emergency room to treat his patient, and insisted on her transfer to Sunrise. Thereafter, the matter was directed to the NLVH Surgery Committee, which recommended summary suspension of Chowdhry's hospital privileges. A letter to that effect was sent to Chowdhry on October 3, 1985, and Chowdhry received notification of the complaint and suspension on October 4, 1985.
In response to Chowdhry's request, a hearing was held before the Medical Executive Committee on November 1, 1985. As a result of the hearing, Chowdhry's staff privileges were reinstated, but a reprimand was placed in his file for jeopardizing himself, the patient and the hospital. NLVH denied Chowdhry's subsequent request to have the reprimand expunged from his record, thus prompting Chowdhry to file the instant action.
Chowdhry's complaint alleged, inter alia, theories of liability based upon negligence, breach of contract, conspiracy, defamation and negligent and intentional infliction of emotional distress. His claims were premised upon an implied charge of patient abandonment and the manner in which NLVH conducted the disciplinary proceedings. Chowdhry sought compensatory and punitive damages and expungement of the suspension and reprimand from his file.
Prior to the commencement of trial, the district court excluded certain evidence pertaining to Lapica. At the close of Chowdhry's case in chief, the district court dismissed the claim for punitive damages. After the close of the evidence, directed verdicts were granted eliminating Chowdhry's claims for defamation and infliction of emotional distress. On Chowdhry's remaining claims for negligence, breach of contract and conspiracy, the jury found that NLVH, Moore and Silver were collectively 30 percent negligent, that NLVH violated its bylaws, that there was no conspiracy, and that Chowdhry had not abandoned his patient. Concluding that Chowdhry had no reasonable basis for bringing the action, the district court awarded $209,376 in attorney's fees and $69,835 in costs to NLVH, Silver, Moore and Wilchins. Lapica was awarded $47,566 in attorney's fees and $9,428 in costs. This appeal followed.
DISCUSSION
On appeal, Chowdhry raises the following contentions: (1) that the district court erred in dismissing his defamation, punitive damage and infliction of emotional distress claims; (2) that the district court erred in excluding evidence concerning Lapica's employment history; and (3) that the district court erroneously awarded respondents attorney's fees.
A. Involuntary Dismissal of Chowdhry's Claims
Chowdhry's punitive damage claim was dismissed pursuant to NRCP 41(b). Directed verdicts were entered pursuant to NRCP 50(a) against Chowdhry's defamation and infliction of emotional distress claims.
A motion for involuntary dismissal of an action may be made after the close of plaintiff's case "on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury." NRCP 41(b). In ruling on a 41(b) motion, a court must accept the plaintiff's evidence as true, draw all permissible inferences in the plaintiff's favor, and not assess the credibility of the witnesses or the weight of the evidence. Nevada Indus. Dev., Inc. v. Benedetti, 103 Nev. 360, 362, 741 P.2d 802, 804 (1987) (citations omitted). To defeat a 41(b) motion, the plaintiff must present a prima facie case upon which relief may be granted. Id. at 362-63, 741 P.2d at 804.
NRCP 50(a) provides that a motion for directed verdict shall be denied "[i]f the evidence is sufficient to sustain a verdict for the opponent." Stated differently, "[a] directed verdict is proper only in those instances where the evidence is so overwhelming for one party that any other verdict would be contrary to the law." Bliss v. DePrang, 81 Nev. 599, 602, 407 *462 P.2d 726, 727-28 (1965). On a motion for a directed verdict, the district court must view the evidence and all inferences therefrom in a light most favorable to the non-moving party. Broussard v. Hill, 100 Nev. 325, 327, 682 P.2d 1376, 1377 (1984). The same standard applies on appellate review. Bliss, 81 Nev. at 601, 407 P.2d at 727.
Mindful of these principles, we now address the propriety of the district court's rulings.
1. Infliction of Emotional Distress
We have not previously had occasion to decide whether a plaintiff may recover for negligent infliction of emotional distress for negligent acts committed directly against the plaintiff. In State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985), we first recognized a cause of action for negligent infliction of emotional distress where a bystander suffers "serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant." 101 Nev. at 718, 710 P.2d at 1379. The "physical impact" requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff. See, e.g., Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (Ct.App. 1988); Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied ___ U.S. ___, 111 S.Ct. 960, 112 L.Ed.2d 1048 (1991); and Allen v. Otis Elevator Co., 206 Ill.App.2d 173, 150 Ill. Dec. 699, 563 N.E.2d 826 (1990), appeal denied, 141 Ill.2d 535, 162 Ill.Dec. 481, 580 N.E.2d 107 (1991). In the context of intentional infliction of emotional distress, we have stated that "[t]he less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness from the emotional distress." Nelson v. City of Las Vegas, 99 Nev. 548, 555, 665 P.2d 1141, 1145 (1983).
In the present case, Chowdhry's emotional distress claims are premised upon respondents' accusations of patient abandonment. Chowdhry testified that as a result, "he was very upset" and could not sleep. Insomnia and general physical or emotional discomfort are insufficient to satisfy the physical impact requirement. See Hopkins v. State, 237 Kan. 601, 702 P.2d 311, 320-21 (1985). No other evidence was presented of serious emotional distress or physical injury or illness. Moreover, the evidence failed to demonstrate the existence of extreme or outrageous conduct or intent to cause severe emotional distress. See Nelson, 99 Nev. at 555, 665 P.2d at 1145. In short, Chowdhry failed, as a matter of law, to present sufficient evidence to sustain verdicts for negligent or intentional infliction of emotional distress. Therefore, the district court properly granted directed verdicts on these claims.
2. Defamation
Chowdhry contends that respondents made several statements charging him with patient abandonment and insists that these statements are defamatory per se because patient abandonment is "perhaps the most serious complaint that could be leveled against a physician." Chowdhry also argues that the statements "had the potential to critically damage his medical practice."
In granting the directed verdict on the defamation claim, the district court ruled that respondents had not published the statements as contemplated under the law of defamation because they were communicating as one corporate agent to the other. The district court also ruled that the communications were not false.
In order to establish a prima facie case of defamation, a plaintiff must prove: (1) a false and defamatory statement by defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages. Restatement (Second) of Torts, § 558 (1977). If the defamation tends to injure the plaintiff in his or her business or profession, it is deemed defamation per se, and damages will be presumed. See, Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 409, 664 P.2d 337, 341 (1983).
*463 Whether a statement is capable of a defamatory construction is a question of law. Branda v. Sanford, 97 Nev. 643, 646, 637 P.2d 1223, 1225 (1981). A jury question arises when the statement is susceptible of different meanings, one of which is defamatory. Id.
The actual statements made by the various respondents were not that Chowdhry "abandoned" his patient but that he "failed to respond" or "would not come" to NLVH to treat his patient. Although these statements cannot by themselves be deemed defamatory, we recognize that "words do not exist in isolation." Branda, 97 Nev. at 646-47, 637 P.2d at 1226. The words must be reviewed in their entirety and in context to determine whether they are susceptible of defamatory meaning. Id.
The record reflects that the statements were made by the respondents to hospital personnel and other interested parties (e.g., the patient's mother), in the context of reporting what was reasonably perceived to be Dr. Chowdhry's refusal to treat the patient at NLVH. We conclude that the statements attributable to the respondents, taken in context, are not reasonably capable of a defamatory construction. Because our conclusion is dispositive of this issue, we need not address whether the statements were published or privileged.
3. Punitive Damages
Punitive damages are recoverable only upon a showing of malice, fraud or oppression, by clear and convincing evidence. NRS 42.005. The district court determined, based upon the evidence presented in Chowdhry's case in chief, that the respondents acted in the interest of their patients and not out of malice towards Chowdhry. We agree. Chowdhry failed to establish a prima facie case for punitive damages. Therefore, the district court correctly dismissed this claim under NRCP 41(b).
B. Exclusion of Evidence Concerning Respondent Lapica
Chowdhry next contends that the district court improperly excluded evidence concerning Lapica's employment history. The district court excluded the evidence upon a determination that similarities between the past and present incidents had not been established and because it sought to avoid a "parade of witnesses" on this collateral issue. The district court ruled that the evidence would be excluded because of its marginal relevance and because its prejudicial effect outweighed its probative value.
NRS 48.035 provides that even relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. Questions of probative value are left to the sound discretion of the district court and will not be disturbed on appeal absent a showing of abuse. McCourt v. J.C. Penney Co., 103 Nev. 101, 103, 734 P.2d 696, 698 (1987). Moreover, where evidence is marginally relevant and "could inject collateral issues which would divert the jury from the real issues in the case," exclusion is proper. Nevada Nat'l Bank v. Huff, 94 Nev. 506, 516, 582 P.2d 364, 371 (1978).
We discern no error in the district court's ruling on this issue. The district court acted well within its discretion in excluding the evidence.
C. Attorney's Fees
Lastly, Chowdhry contends that the district court erred in awarding the NLVH respondents attorney's fees because they were not prevailing parties. Chowdhry also maintains that the district court erred in granting Lapica attorney's fees for work generated on issues assertedly resolved in favor of Chowdhry. However, Chowdhry does not claim an entitlement to attorney's fees; rather, he stresses that none of the respondents were prevailing parties and were therefore not entitled to statutory fees and costs.
Attorney's fees were awarded pursuant to NRS 18.010(2)(b), which provides that the court may award attorney's fees to a prevailing party when it finds that the *464 claim or defense was brought without reasonable ground or to harass the prevailing party (emphasis added). An award of attorney's fees lies within the trial court's discretion and will not be overturned absent a "manifest abuse of discretion." County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d 1217, 1220 (1982).
Whether the lower court abused its discretion in awarding attorney's fees depends upon: (1) whether recipients of the fees can be said to have "prevailed" in the action; and (2) whether the district judge properly found that Chowdhry's claims were unreasonable and made solely to harass.
1. Prevailing Party
In Hornwood v. Smith's Food King, 105 Nev. 188, 772 P.2d 1284 (1989), we defined "prevailing party" thusly: "`A plaintiff may be considered the prevailing party for attorney's fee purposes if it succeeds on any significant issue in litigation which achieves some of the benefit is [sic] sought in bringing the suit.'" Id. at 192, 772 P.2d at 1287 (quoting Women's Federal Sav. & Loan Ass'n v. Nevada Nat'l Bank, 623 F.Supp. 469, 470 (D.Nev.1985)).
In Hornwood, the lessors brought an action against their anchor tenant, Smith's Food King, seeking compensatory and consequential damages for breach of lease and bad faith. At trial it was determined that Smith breached the lease but with no resultant damage to the Hornwoods. Consequently, the court concluded that Smith's, as the prevailing party, was entitled to attorney's fees. Id. at 189-190, 772 P.2d at 1286-87.
On appeal, we reversed both the finding against the Hornwoods concerning consequential damages and the award of attorney's fees to Smith's as the prevailing party. Applying the above quoted definition of "prevailing party," we held that since the Hornwoods had achieved a benefit in bringing the suit, i.e., an entitlement to consequential damages, they were also entitled to attorney's fees as the prevailing party. Id. at 192, 772 P.2d at 1287.
The instant record discloses that Chowdhry did not prevail on any of his claims. On the three claims decided by the jury, the negligence claim failed because Chowdhry was found 70 percent negligent; the breach of contract claim failed because Chowdhry was found not to have suffered any damages; and no conspiracy was found.
Chowdhry nevertheless claims that he achieved some benefit from the suit in that the jury found that he had not abandoned his patient. However, as pointed out by NLVH and Lapica, this was not a claim asserted by Chowdhry. Instead, patient abandonment was an affirmative defense which the jury rejected.
2. Reasonable Grounds for Action
Since attorney's fees were granted pursuant to NRS 18.010(2)(b), there must be evidence in the record supporting the proposition that the complaint was brought without reasonable grounds or to harass the other party. See Woods v. Label Investment Corp., 107 Nev. 419, 812 P.2d 1293 (1991).
In awarding attorney's fees and costs, the district judge stated that he was "absolutely convinced that [Chowdhry] abandoned his patient." The district judge stated that:
Dr. Chowdhry's lawsuit was made in a vindictive and unjustified effort and it was nothing more than his chance to grill his enemies and it became that, a little feud within this circle. [¶] The suit was brought without reasonable grounds in the motion [sic] to harass under the statute. I'm going to award the fees requested.
Our review of the record reveals no support for the conclusion reached by the district judge concerning unreasonableness and motivation to harass.
First, the jury expressly found that Chowdhry did not abandon his patient. Second, the jury found that Moore and Silver were negligent, albeit to a much lesser extent than Chowdhry (15% each vis-a-vis 70%). Thus, Chowdhry did not prevail on his negligence claim. See NRS 41.141. *465 Third, the jury found that NLVH had breached its bylaws. Chowdhry did not prevail on this claim because the jury found no past damages. Lastly, although Chowdhry did not succeed in getting the reprimand and suspension expunged from his record, the district court did order that a copy of the verdict showing he had not abandoned his patient be placed in his file. Chowdhry maintains that the issue of abandonment was the most important to him and that the inclusion of the verdict in his file essentially nullified the reprimand.
For the reasons enumerated above, we conclude that Chowdhry had reasonable grounds upon which to bring this action. Thus, as to NLVH, Silver, Moore and Wilchins, the award of attorney's fees pursuant to NRS 18.010(2)(b) was erroneous and must be reversed.
With respect to Lapica, Chowdhry contends that the district court abused its discretion in awarding attorney's fees for work performed on claims litigated successfully by Chowdhry. As discussed above, Chowdhry was not successful on any of his claims, thus there was no need to limit attorney's fees to the claims on which Lapica prevailed. Because Chowdhry does not challenge the propriety of the award to Lapica, we are constrained to affirm Lapica's award of attorney's fees. We also affirm the award of costs to which respondents are entitled as prevailing parties. NRS 18.020.
Given our affirmance of Lapica's award of attorney's fees for reasons stated above, it is unnecessary to discuss Lapica's position with respect to an entitlement of fees under NRAP 38.
CONCLUSION
For the reasons specified above, we affirm the orders and judgments entered by the district court in their entirety with the exception of the award of attorney's fees only in favor of respondents American Health Care Management Home Care, Inc., NLVH, Silver, Wilchins and Moore, which we reverse and vacate.[3]
NOTES
[1] Pneumohemothorax refers to a condition of air and blood in the chest cavity.
[2] Upon the death of Wilchins, Marian Dreihaupt, Special Administratrix of the Wilchins' estate, was substituted for the decedent as respondent.
[3] The Honorable Miriam Shearing, Justice, did not participate in the decision of this matter.
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286 S.C. 170 (1985)
333 S.E.2d 60
SAVE CHARLESTON FOUNDATION, Appellant-Respondent,
v.
William E. MURRAY, individually and William E. Murray and Harold Adler, now or formerly acting as and under the name Save Charleston Partnership, Defendants-Respondents, of whom William E. Murray is Respondent-Appellant. Appeal of William E. MURRAY.
0502
Court of Appeals of South Carolina.
Heard January 28, 1985.
Decided June 17, 1985.
*171 *172 Charles S. Bernstein, of Bernstein & Manos, P.A., and Ray P. McClain, Charleston, for appellant-respondent.
George J. Morris, of Morris, Duffy & Boone, Charleston, for respondent-appellant.
Morris D. Rosen, of Rosen, Oberman & Rosen, Charleston, for defendant-respondent, Adler.
Heard January 28, 1985.
Decided June 17, 1985.
GOOLSBY, Judge:
Save Charleston Foundation (Foundation) appeals from the circuit court's order granting summary judgment in favor of William E. Murray, individually, and Murray and Harold Adler doing business as Save Charleston Partnership (Partnership) and overruling its demurrer to identical counterclaims for conversion asserted by Murray and Adler. Murray cross-appeals from the circuit court's order striking his claim for attorney fees and costs from his counterclaim for conversion and from the circuit court's order sustaining the Foundation's demurrers to his counterclaims alleging causes of action for outrage, breach of contract accompanied by fraudulent acts, and prima facie tort. Adler does not appeal. We affirm.
*173 These appeals present issues involving election of remedies, punitive damages, sufficiency of pleadings, and attorney fees and costs.
As the record discloses, the Foundation and Murray entered into negotiations in 1976 for the sale of certain real property owned by the Foundation. Their negotiations resulted in an agreement between the Foundation and Murray. The Foundation agreed to transfer the property to Murray or his designee for the sum of $375,000.00.
Pursuant to the agreement, the Partnership, Murray's designee, executed a promissory note on April 7, 1976, obligating itself to pay to the Foundation the sum of $375,000.00 "without interest, payments of said sum to be in annual installments equal to forty (40%) per cent of the `net profits'" either derived from the sale of the subject property or otherwise produced by it.
Thereafter, the Foundation, believing "that the development and operation of the subject real property ha[d] been extremely profitable" and that the Partnership intended "to dispose of the ... property ... without making any payment whatsoever to the [Foundation] on the [note]," filed suit alleging three causes of action against the Partnership and Murray.
Each of the first two causes of action sought the recovery of actual damages in the amount of $375,000.00, the face amount of the note. The first cause of action alleged an action for anticipatory breach of contract. The second cause of action realleged the allegations of the first cause of action and further alleged an action for breach of contract. The third cause of action realleged the allegations of the first and second causes of action, sought $375,000.00 in actual damages and an equal amount in punitive damages and further alleged an action for fraud. The Foundation demanded judgment against Murray and the Partnership jointly and severally for actual damages in the amount of $375,000.00 and punitive damages in the amount of $375,000.00.
Shortly after the Foundation brought suit against Murray and the Partnership, the parties mutually agreed to submit the dispute to arbitration. Under the terms of the arbitration agreement, the Foundation agreed to dismiss its first *174 two causes of action "with prejudice" and its third cause of action "without prejudice." Another term of the agreement expressed the intention of the parties that the agreement was "to forever resolve the issues disputed."
Pursuant to the terms of the settlement agreement, the circuit court ordered the dismissal of the Foundation's first two causes of action with prejudice and its third cause of action without prejudice.
An arbitration panel later determined the Foundation was entitled to the net sum of $109,378.40, which the Partnership subsequently paid.
Afterward, the Partnership demanded the return of the promissory note. The Foundation refused to surrender it and brought the present suit.
The Foundation's present complaint alleges two causes of action: the first, against Murray, alleging fraud in the inducement of the contract for which the promissory note was given and the second, against Murray and Adler as partners in the Partnership, alleging fraudulent breaches of fiduciary duties owed to the Foundation by the Partnership under the promissory note. The complaint seeks actual damages in the amount of $240,621.60 and punitive damages in the amount of $2,406,216.00.
The answers to the complaint assert a general denial and an affirmative defense alleging that the Foundation's actions against them are barred because all matters concerning the funds due under the promissory note were finally determined in the former arbitration proceeding.
Murray on behalf of himself and as a partner in the Partnership and Adler as a partner in the Partnership also assert an action for conversion based on the Foundation's failure to deliver the promissory note after the Partnership satisfied the note and demanded its return.
Additionally, Murray's answer asserts counterclaims for outrage based on the Foundation's conversion of the promissory note and its bringing of the instant action, for breach of contract, accompanied by fraudulent acts consisting of the Foundation's failure to deliver the promissory note and its bringing of the instant action, and for prima facie tort based on the Foundation's filing of the instant action allegedly without justification.
*175 The Foundation demurred to all counterclaims upon the ground that each fails to state a cause of action. The circuit court overruled the Foundation's demurrers to the counterclaims alleging a cause of action for conversion and, on its own motion, struck from these counterclaims the requests for attorney fees and costs. The circuit court, however, sustained the demurrers to the other counterclaims.
Prior to the hearing on the demurrers, Murray and Adler both moved for summary judgment. They asserted that the Foundation could not bring the instant action since it had previously elected its remedy by participating in the arbitration proceedings. The circuit court agreed and granted Murray and Adler summary judgment as to both causes of action. It also held that the "arbitration eliminated the question of actual damages [and left] no basis for punitive damages."
I. Foundation's Appeal
A.
The Foundation maintains the circuit court erred in holding that the Foundation may not pursue the instant action because it had elected its remedy against Murray and the Partnership when it agreed to arbitrate its causes of action for anticipatory breach and breach of contract and thereafter obtained a final and conclusive award through arbitration.
The doctrine of election of remedies involves a choice between two or more different and coexisting modes of procedure and relief afforded by law for the same injury. Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E. (2d) 73 (1945); Walker v. McDonald, 136 S.C. 231, 134 S.E. 222 (1926); Boardman v. Lovett Enterprises, Inc., 283 S.C. 425, 323 S.E. (2d) 784 (Ct. App. 1984). Its purpose is to prevent double redress for a single wrong. 25 Am. Jur. (2d) Election of Remedies Section 1 at 646 (1966). Application of the doctrine should be confined to cases where double compensation of the plaintiff is threatened. Id. Section 3 at 650. When an identical set of facts entitles the plaintiff to alternative remedies, he may plead and prove his entitlement to either or both; however, the plaintiff may not recover both. Baeza v. Robert E. Lee Chrysler, Plymouth, Dodge, Inc., 279 S.C. 468, *176 309 S.E. (2d) 763 (Ct. App. 1983). "This rule rests on the principle that the plaintiff should have a full opportunity to prove his claim to some form of relief, but he should not receive a double recovery." Id. at 473, 309 S.E. (2d) at 766. The invocation of one remedy constitutes an election of remedies that will bar another remedy consistent therewith where the suit upon the remedy first invoked reached the stage of final adjudication. McMahan v. McMahan, 122 S.C. 336, 342, 115 S.E. 293, 295 (1922). Arbitration is a mode of procedure and relief afforded by law. See S.C. Code of Laws Sections 15-48-10 to -240 (1976) (Cum. Supp. 1984).
Even though the Foundation's three causes of action in the former suit were based on different theories of recovery, they nonetheless were consistent. The Foundation, therefore, would not have been required to make an election had the suit proceeded to trial. It could have pleaded and proved all three causes of action but would have been limited to one recovery. Robert Harmon and Bore, Inc. v. Jenkins, 282 S.C. 189, 318 S.E. (2d) 371 (Ct. App. 1984); see Carrigg v. Blue, ___ S.C. ___, 323 S.E. (2d) 787 (Ct. App. 1984).
The controlling question, then, is not whether the Foundation would have been required to elect among its causes of action had the matter been tried rather than arbitrated but whether the Foundation has obtained a recovery arising out of its dispute with Murray and the Partnership. The Foundation clearly did so as a result of the arbitration proceeding.
Where the parties agree to submit a claim to arbitration and the claim is properly adjudicated by the arbitrators, the prosecution of the same claim on a different theory is barred. See 6 C.J.S. Arbitration Section 128 at 376 (1975). To conclude otherwise would be to sanction a double recovery and "would defeat the object of arbitration, which is to avoid litigation." 5 Am. Jur. (2d) Arbitration and Award Section 147 at 628 (1962).
We therefore hold that the Foundation, having obtained through arbitration a recovery on its claim against Murray and the Partnership, can no longer sue Murray and the Partnership for fraud, notwithstanding the Foundation's attempt to preserve its fraud cause of *177 action by agreeing to its dismissal "without prejudice." See Gulledge v. Young, 242 S.C. 287, 130 S.E. (2d) 695 (1963) (voluntary dismissal or nonsuit without prejudice merely terminates action and leaves the situation as though no suit had ever been brought). A party cannot agree to submit a claim to arbitration, receive a final and conclusive arbitration award, and then relitigate the claim employing a different theory of recovery.
B.
The Foundation next contends that the circuit court erred in holding that the Foundation's recovery of actual damages by arbitration also resolved the issue of its right to recover punitive damages.
As we mentioned previously, the Foundation sought in the former action to recover actual and punitive damages on its fraud cause of action. In light of our holding that the Foundation is now precluded from pursuing its cause of action for fraud against Murray and the Partnership, we need not treat the Foundation's contention that it is entitled to recover punitive damages on its fraud claim. See 5 Am. Jur. (2d) Appeal and Error Section 760 at 201 (1962); cf. Jones v. Atlanta-Charlotte Air Line R. Co., 218 S.C. 537, 63 S.E. (2d) 476, 26 A.L.R. (2d) 297 (1951) (specification of error relating to willfulness and wantonness became academic where verdict was for actual damages only).
C.
The Foundation's final contention is that the circuit court erred in overruling its demurrers to Murray's and Adler's counterclaims for conversion and in holding that each states a counterclaim for conversion.
Each partner alleges in his counterclaim, among other things, that the Partnership delivered its promissory note to the Foundation, the Partnership satisfied its obligations under the note, the note's return was demanded, the Foundation refused to return the note, the Foundation converted the note to its own use and benefit, and he has been damaged as a result thereof. Both counterclaims seek actual and punitive damages.
*178 In determining whether to grant a demurrer to a counterclaim for failure to state facts sufficient to constitute a cause of action, a court is strictly limited to the allegations of the counterclaim and cannot look beyond the counterclaim's four corners. See Dagle Construction Co., Inc. v. Cerrati, 274 S.C. 122, 262 S.E. (2d) 12 (1980). The counterclaim's allegations are deemed to be true and together with the relevant inferences reasonably deducible therefrom are to be construed liberally in favor of the counterclaimant. See Skinner & Ruddock, Inc. v. London Guarantee & Accident Co., 239 S.C. 614, 124 S.E. (2d) 178 (1962).
An action may be maintained for the conversion of a promissory note. 18 Am. Jur. (2d) Conversion Section 18 at 167-68 (1965); 89 C.J.S. Trover and Conversion Section 13 at 538-39 (1955); see Owens v. Andrews Bank & Trust Co., 265 S.C. 490, 220 S.E. (2d) 116 (1975); Reynolds v. Witte, 13 S.C. 5 (1880). Conversion may be predicated upon the detention of personal property, such as a promissory note, where there is a refusal to surrender the possession of the property after demand for its possession is made by a person entitled to its possession. 18 Am. Jur. (2d) Conversion Section 43 at 182-83 (1965). "[T]he right of an obligor to maintain an action for the conversion of a promissory note is not precluded because the note has been paid." Id. Section 80 at 207. Even when no actual loss has occurred, a party can be liable for at least nominal damages if a technical conversion is shown. 89 C.J.S. Trover and Conversion Section 161 at 642 (1955). Proof of nominal damages can support an award of punitive damages. Cook v. Atlantic Coast Line R. Co., 183 S.C. 279, 190 S.E. 923 (1937).
Clearly, the Foundation's argument that the counterclaims fail to state a cause of action for conversion lacks merit. The circuit court, therefore, properly overruled the Foundation's demurrers to the counterclaims for conversion.
II. Murray's Cross Appeal
A.
In ruling on the Foundation's demurrers to the counterclaims for conversion, the circuit court on its own motion struck allegations in both counterclaims alleging that the *179 Foundation's conversion of the promissory note cost Murray and Adler unnecessary attorney fees and costs. Murray asserts on appeal this was error. We do not agree.
In Rimer v. State Farm Mutual Auto Insurance Co., 248 S.C. 18, 27, 148 S.E. (2d) 742, 746 (1966), which involved an action for conversion, the Supreme Court plainly held that "recoverable damages" do not include the expense of employing counsel, except when so provided either by contract or by statute. See Emmanuel Baptist Church v. Southern Mutual Church Ins. Co., 259 S.C. 223, 191 S.E. (2d) 255 (1972); see also S.C. Code of Laws Section 38-9-320 (1976). Likewise, other costs associated with defending an action brought on the promissory note are unrecoverable in a conversion action. See Prickett v. A & B Electrical Service, Inc., 280 S.C. 123, 311 S.E. (2d) 402 (Ct. App. 1984).
B.
The circuit court sustained the Foundation's demurrer to Murray's counterclaim for outrage. Murray asserts this also was error. Again, we do not agree. Murray alleges in his counterclaim that the Foundation's conversion of the promissory note and the Foundation's malicious assertion against him in the instant case of the two causes of action under the note have injured his "reputation and credit" and have caused him "great anguish and emotional distress." The circuit court held these allegations insufficient to state a cause of action for the tort of outrage.
Although we are aware of the difference between alleging a cause of action and successfully proving it [see Todd v. South Carolina Farm Bureau Mutual Insurance Co., 276 S.C. 284, 278 S.E. (2d) 607 (1981), appeal after remand, 283 S.C. 155, 321 S.E. (2d) 602 (Ct. App. 1984), cert. granted, ___ S.C. ___, 328 S.E. (2d) 479 (1985); Ford v. Hutson, 276 S.C. 157, 276 S.E. (2d) 776 (1981)], the legal sufficiency of a pleading must be tested by the facts alleged therein. See, e.g., Stanley v. S.C. State Highway Dept., 249 S.C. 230, 153 S.E. (2d) 687 (1967). We also recognize that conduct described by two members of the Supreme Court as "[a] petty squabble" can nonetheless constitute the tort of outrage. See Bell v. Dixie Furniture Company, Inc., ___ S.C. ___, *180 329 S.E. (2d) 431 (1985) (Littlejohn, C.J., dissenting).
Still, we prefer to think that there is some conduct involving personal interaction and causing emotional distress that, as a matter of law, is beyond the embrace of the new tort.
Even if Murray were able to prove his "reputation and credit" sustained injury and he suffered "great anguish and emotional distress" as a result of the Foundation's conversion of the promissory note and its malicious institution of the present law suit, he would not be entitled to a recovery on the basis of outrage.
One of the four elements the plaintiff must prove to establish the tort of outrage is that the defendant's "conduct was so `extreme and outrageous' as to exceed `all possible bounds of decency' and must be regarded as `atrocious and utterly intolerable in a civilized community.'" Ford v. Hutson, 276 S.C. at 162, 276 S.E. (2d) at 778. Merely converting someone's promissory note and maliciously bringing against the person a civil action based on the note is not conduct that, as a matter of law, "exceeds all possible bounds of decency" and is "atrocious and utterly intolerable." This conclusion becomes particularly evident when one considers the former conduct can afford a basis for launching an action for conversion [18 Am. Jur. (2d) Conversion Section 18 at 167-68 (1965); 89 C.J.S. Trover and Conversion Section 13 at 538-39 (1955)] and the latter can form the basis for maintaining an action for malicious prosecution. Eaves v. Broad River Electric Cooperative, Inc., 277 S.C. 475, 289 S.E. (2d) 414 (1982); Cisson v. Pickens Savings and Loan Ass'n, 258 S.C. 37, 186 S.E. (2d) 822 (1972).
C.
The circuit court also sustained the Foundation's demurrer to Murray's counterclaim alleging breach of contract accompanied by fraudulent acts. Murray maintains the circuit court erred in doing so. We once more agree with the circuit court.
Murray's third counterclaim alleges that Foundation breached the settlement agreement in which the Foundation and the Partnership agreed to arbitrate. He alleges two fraudulent acts accompanied the Foundation's breach of the *181 agreement. These acts were the Foundation's failure to deliver to the Partnership the promissory note that was tha subject of the arbitration and the Foundation's bringing of the instant action on the note even though the note had "been paid in full."
When we construe the counterclaim's allegations and all its relevant inferences liberally in Murray's favor, we reach the conclusion that the counterclaim does not sufficiently allege a cause of action for breach of contract accompanied by fraudulent acts.
Although the cases involving breach of contract accompanied by a fraudulent act do not present an easy formula for defining a "fraudulent act," it is clear that the fraudulent act alleged must be an act done with the intent to deceive. H. Lightsey, South Carolina Code Pleading at 97 (1976); see e.g., Lancaster v. Smithco, Inc., 238 S.C. 15, 119 S.E. (2d) 145 (1961). Donaldson v. Temple, 96 S.C. 240, 80 S.E. 437 (1913). In this instance, the counterclaim contains no allegation that either of the alleged fraudulent acts accompanying the breach of the agreement was committed with an intent to defraud either Murray or the Partnership.
D.
Finally, Murray contends the court erred in sustaining the Foundation's demurrer to his fourth counterclaim alleging a cause of action known as prima facie tort.
Murray alleges in this counterclaim that the Foundation's "lawsuit is totally without merit" and that the Foundation brought this action "without economic or social justification" and "solely for the purpose of harming" him. No part of the fourth counterclaim is based upon the Foundation's retention of the promissory note, as was the second counterclaim.
The question of whether Murray can maintain an action in South Carolina for prima facie tort, a theory recognized in other states [see Annot. 16 A.L.R. (3d) 1191 (1967)], is not one we need now decide.
Even if we were to assume the cause of action is recognized in this state, Murray's counterclaim for prima facie tort would not be properly interposed. The purported cause *182 of action upon which the counterclaim is based did not exist at the time this action was commenced. Russell v. Risher, 272 S.C. 182, 249 S.E. (2d) 908 (1978); Smart v. Charleston Mobile Homes, Inc., 269 S.C. 588, 239 S.E. (2d) 78 (1977); cf. Detyens v. C.E. Maguire, Inc., ___ S.C. ___, 324 S.E. (2d) 648 (Ct. App. 1984) (cross-complaint must be based on cause of action existing at time action commenced).
The circuit court, therefore, properly sustained the Foundation's demurrer to Murray's fourth counterclaim.
For the reasons given, the order appealed from is
Affirmed.
SHAW and CURETON, JJ., concur.
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302 S.C. 413 (1990)
396 S.E.2d 642
Johnson PREVATTE, Appellant
v.
ASBURY ARMS, Respondent.
1544
Court of Appeals of South Carolina.
Heard May 9, 1990.
Decided September 17, 1990.
Philip M. Creel, Lexington, for appellant.
C. Ansel Gantt, Jr., Columbia, for respondent.
*414 Heard May 9, 1990.
Decided Sept. 17, 1990.
BELL, Judge:
This is a statutory action by a residential tenant, Johnson Prevatte, against his former landlord, Asbury Arms Apartments, for return of a security deposit.[1] Asbury Arms responded by claiming Prevatte owed $26.00 for unpaid rent, and $58.81 for cleaning and replacement of damaged draperies. The case was tried in magistrate's court by a jury. The jury awarded Asbury $26.00 for unpaid rent and $12.00 for cleaning expenses. It denied Asbury's claim for damage to the draperies, finding that Prevatte was entitled to have the $42.00 balance of his deposit returned. Pursuant to Code Section 27-40-410(b), the magistrate trebled the damage award to $126.00 and entered judgment for $167.00, representing damages and court costs. The magistrate refused to award Prevatte attorney's fees. Asbury satisfied the $167.00 judgment. Prevatte appealed the refusal to award attorney's fees to the circuit court, which affirmed the magistrate. Prevatte now appeals the judgment of the circuit court. We reverse and remand.
The facts of the case are undisputed. Asbury Arms is a federally subsidized housing project for elderly and disabled persons. At the beginning of his tenancy, Prevatte paid an $80.00 security deposit. Disputes arose between Asbury and Prevatte, which resulted in Prevatte's eviction from his apartment. About six weeks after his eviction, Prevatte made a written demand for return of his security deposit. Thirty days later, Asbury responded in writing, stating it would not refund the deposit because of unpaid rent, cleaning charges, and damages to draperies, totalling $84.81. This suit followed. Prevatte demanded a jury trial.
The sole question for our decision is: Does a judge have discretion to deny attorney's fees to a prevailing tenant under *415 Section 27-42-410(b)? In other words, this appeal concerns an issue of statutory construction.
We hold that the statute entitles the prevailing tenant to attorney's fees as a matter of right; but the statute also gives the judge board discretion to determine the amount of the fees, depending on the facts and equities of each case.
I.
Under the common law of South Carolina, a prevailing party has no right to recover attorney's fees. Duke Power Co. v. South Carolina Public Service Commission, 284 S.C. 81, 326 S.E. (2d) 395 (1985). In the absence of a common law right, the plaintiff must plead either a contract or a statute to receive enhanced damages or attorney's fees. Hegler v. Gulf Insurance Co., 270 S.C. 548, 243 S.E. (2d) 443 (1978).
The Landlord and Tenant Act modifies the common law rule. The statute states, in pertinent part:
If the landlord fails to return any prepaid rent required to be paid to the tenant under this Chapter, the tenant may recover the property and money in an amount equal to three times the amount wrongfully withheld and reasonable attorney's fees. [Emphasis added.]
Section 27-40-410(b).
Asbury Arms does not contest Prevatte's right to treble damages under this section. Instead, it argues that the statute, by using the word "may," gives the trial judge discretion to deny attorney's fees to a prevailing tenant. The argument ignores the plain wording of the statute. The word "may" does not refer to the judge, but to the tenant. It gives the tenant a right he does not have at common law: the tenant may elect to seek recovery under the statute rather than the common law. To the extent that the word "may" connotes discretion, it is a discretion vested in the tenant to elect his remedies, not in the court to deny a remedy clearly provided by the statute. The judge erred when he stated: "Under XX-XX-XXX(b) it says the court may award attorney fees." [Emphasis added.] This is not what the statute says.
There are other attorney's fees statutes in South Carolina with language similar if not identical to that found in Section *416 XX-XX-XXX(b).[2] The appellate courts of this state have never construed this language as giving the trial judge discretion to award or deny attorney's fees.[3] Moreover, decisions in other jurisdictions interpreting this section of the Uniform Residential Landlord Tenant Act support our interpretation of the South Carolina statute.[4] Since these decisions construe a uniform provision of the Act, they are authoritative in construing the South Carolina statute. See Old Kent Bank Southeast v. City of Detroit, 178 Mich. App. 416, 444 N.W. (2d) 162 (1989). We expressly approve the following statement of the law in Beckett v. Olson, 75 Or. App. 610, 613, 707 P. (2d) 635, 636 (1985):
The statute is unambiguous and absolute. The use of "the tenant may recover" rather than "the tenant shall recover" does not give the court any discretion. Rather it is a statement of the steps the tenant, as a matter of right, may take if the landlord does not comply with the statute.
II.
Although the statute gives a prevailing tenant attorney's fees, as of right, it also mandates that the fees be "reasonable." What constitutes a reasonable fee is a matter for the court to determine as a matter of informed judicial discretion. In deciding the amount of the fee, the court should take into consideration the facts and equities of the particular case. Its discretion should be guided by the following factors, among others:
(1) the nature, extent, and difficulty of the services rendered;
(2) the time and labor necessarily devoted to the case;
*417 (3) the professional standing of counsel;
(4) the contingency of compensation;
(5) the fee customarily charged in the locality for similar services; and
(6) the beneficial results accomplished.
Johnson v. Johnson, 296 S.C. 289, 372 S.E. (2d) 107 (Ct. App. 1988), cert. denied, 298 S.C. 117, 378 S.E. (2d) 445 (1989); cf. South Carolina Rules of Professional Conduct, Rule 1.5(a), S.C. Sup. Ct. R. 32 (1990). If a party is not the primary prevailing party or prevails only partially, the factor of beneficial results accomplished will weigh in favor of reducing the fee, since the time and labor devoted to the issues he lost should not, in equity, be charged against the opposing party who prevailed on those issues. In cases of this type, only in rare instances should the fee approach or exceed the verdict amount. Cf., Baron Data Systems, Inc. v. Loter, 297 S.C. 382, 377 S.E. (2d) 296 (1989) (no fixed relation between amount of verdict and amount of fees; in certain circumstances fee may exceed amount of verdict).
In this case, the judge appears to have been influenced by several considerations in denying attorney's fees. First, Prevatte defaulted on his last month's rent, giving Asbury Arms a lawful basis for withholding at least part of the security deposit. Second, Asbury's claim for additional items was made in good faith and in strict compliance with the procedures mandated by the statute when a landlord retains the deposit. Third, the case was contested in good faith by the parties; i.e., neither side raised frivolous claims. Fourth, proof was simple because virtually all of the material facts were undisputed. This meant trial preparation by the attorneys did not require unusual skill, effort, or investment of time. Fifth, Asbury prevailed at trial on two out of the three disputed items. Thus, it prevailed on more issues than Prevatte. Sixth, the result obtained by Prevatte's attorney was quite modest. Seventh, the important issue in the case was a question of law for the court, not a jury issue. For this reason, the judge seems to have regarded Prevatte's demand for a jury trial, rather than a bench trial, as unwarranted.
*418 With the exception of the demand for a jury trial,[5] we consider all of these factors appropriate to consider in setting a "reasonable" fee. The fee award is made to the party, not to his lawyer. Reid v. Reid, 280 S.C. 367, 312 S.E. (2d) 724 (Ct. App. 1984). It bears no hard and fast relationship to the customary fee lawyers might bill a paying client in similar cases. A "reasonable fee" may well be less than the "going rate" on the facts of a particular case. Cf. Potomac Leasing Co. v. Bone, 294 S.C. 494, 366 S.E. (2d) 26 (Ct. App. 1988) (Court awarded fee less than half the amount of attorneys billable hours; measure of proper attorney's fees in not always the time spent); Freeman v. A&M Mobile Home Sales, Inc., 293 S.C. 255, 359 S.E. (2d) 532 (Ct. App. 1987).
In view of our holding, we find it unnecessary to address each of Asbury's remaining counter arguments, which we find to be manifestly without merit. See, Section 14-8-250, Code of Laws of South Carolina, 1976, as amended.
We reverse the judgment of the circuit court and remand to the magistrate's court for the award of a reasonable attorney's fee to Prevatte. The court, in exercising its discretion, should be guided by the factors we have outlined.
Reversed and remanded.
SHAW and GOOLSBY, JJ., concur.
NOTES
[1] The statute is question is Section 18 of the South Carolina Residential Landlord and Tenant Act, Act No. 336, Acts and Joint Resolutions of the General Assembly of South Carolina, 1986, 64 STAT. 2442, codified as Section 27-40-410, Code of laws of South Carolina, 1976, as amended. It regulates practices concerning prepaid security deposits.
[2] See, e.g., Sections 27-40-610, -640, -710, -770, -780; 58-27-90, Code of Laws of South Carolina, 1976, as amended.
[3] See Watson v. Sellers, 299 S.C. 426, 436, 385 S.E. (2d) 369, 374 (Ct. App. 1989) (court discussing General Assembly's intent to create cause of action in favor of tenants whose landlords fail to keep premises in good repair unqualifiedly construed section 27-40-610 to provide that a tenant may recover reasonable attorney's fees).
[4] E.g., Smith v. Padgett, 32 Ohio St. (3d) 344, 513 N.E. (2d) 737 (1987); Love v. Monarch Apartments, 13 Kan. App. (2d) 341, 771 P. (2d) 79 (1989).
[5] To reduce the fee because Prevatte demanded a jury trial would, in effect, penalize him for exercising a constitutional right.
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396 S.E.2d 447 (1990)
Robert B. BEARD, Appellant,
v.
BECKLEY COAL MINING COMPANY, Appellee.
No. 19089.
Supreme Court of Appeals of West Virginia.
July 25, 1990.
*448 Richard E. Hardison, Beckley, for appellant.
Edward N. Hall, Lexington, for appellee.
PER CURIAM:
This case is before us pursuant to a petition for a writ of error to a final order entered by the Circuit Court of Raleigh County on July 21, 1988. In such order, the circuit court granted summary judgment in favor of the appellee, Beckley Coal Mining Company. The appellant, Robert B. Beard, asserts that the circuit court erred in granting the appellee's motion for summary judgment. We agree, and therefore reverse the circuit court's decision.
The appellant, an employee of Beckley Coal Mining Company, was involved in a mining accident in the appellee's coal mine on October 25, 1983. The appellant was riding in a portal-bus with other employees when the brakes on the bus failed. The portal-bus gained great speed down a hill, failed to negotiate a curve at the bottom of the hill, jumped the track and struck a cement wall. As a result of the forceful impact, the batteries that powered the bus dislodged and struck the appellant's head, *449 causing a severe head injury.[1]
An investigation as to the cause of the accident was conducted by the Mine Safety and Health Administration (MSHA) and the West Virginia Department of Mines. As a result of the investigation which occurred after the October 25, 1983 accident, MSHA issued a citation against appellee for not having sand in the sanding devices in the portal-bus. West Virginia Department of Mines also issued a violation against the appellee for having inoperative sanding devices on the portal-bus.[2] These devices are used to produce friction and traction on the rails.
The appellant filed a civil action in Raleigh County Circuit Court against Beckley Coal Mining Company[3] on January 10, 1985.[4] One theory on which this suit was premised was that the portal-bus in which the appellant was riding constituted a specific unsafe working condition and that the appellee had a subjective realization and an appreciation of the existence of such unsafe working condition. This theory of liability is derived from West Virginia Code § 23-4-2(c)(2) (1985 Rep.Vol.) and allows an employee to sue his employer if the employee asserts that the employer acted with "deliberate intention."
Another theory of liability asserted against the appellee in the appellant's suit was that of products liability, based on the appellant's belief that the portal-bus had been remanufactured and altered significantly by the appellee. The portal-bus was manufactured by Lee Norse Company, and had been originally designed to operate on a trolley line with cables.[5] The appellee redesigned the portal-bus to operate with batteries because part of the coal mine was not equipped with cables. These batteries were placed in a unit that had been welded to the ceiling of the passenger compartment. According to the appellant, placing these batteries, which weighed 3,888 pounds, inboard, reduced the seating capacity in the bus from seventeen to nine and caused the bus to be grossly overloaded by 2,432 pounds.
Beckley Coal Mining Company filed a motion to dismiss this civil action on January 25, 1985. In a letter opinion dated October 8, 1987, from the presiding judge, the Honorable C. Berkley Lilly, the court informed the parties on the status of the case and made rulings on the merits of the case. The court stated in this letter opinion that when the motion to dismiss was originally filed in this case, the court declined to consider it because there had not *450 been sufficient discovery compiled. As of the date of the letter, however, the court believed that the facts had been sufficiently developed, and decided he would thus rule on the appellee's motion to dismiss. In making his ruling, the court found that since matters outside the motion to dismiss had been raised by the parties and considered by the court, the motion to dismiss would be considered and treated as a motion for summary judgment.[6] The court proceeded to rule that the evidence of the appellant was "clearly insufficient to satisfy the requirements" in his cause of action under West Virginia Code § 23-4-2(c)(2)(ii). Although the appellant had listed in his complaint a separate cause of action against the appellee under a products liability theory, the court did not address such cause of action, but nevertheless granted the motion for summary judgment in favor of the appellee.
The presiding judge, the Honorable C. Berkley Lilly, retired and left office on March 31, 1988. A motion to reconsider had been filed by the appellant on March 29, 1988. According to the appellee, Judge Lilly delayed entry of the final order until his successor, the Honorable Robert J. Ashworth, had an opportunity to review the motion. A final order was then entered by Judge Ashworth on July 21, 1988, which granted judgment to the appellee and dismissed this civil action.
We believe that summary judgment was improperly granted in this case. West Virginia R.Civ.Pro. 56(c) provides, in pertinent part, that summary "judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Since the appellant brought suit under W.Va.Code § 23-4-2(c)(2)(ii), it was the appellee's burden to show that there was no genuine issue of material fact with regard to requirements of that statute. In order to prevail in a cause of action under that statute, it is necessary to prove:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working conditions and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;
(C) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation. Whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.
The evidence available at the time summary judgment was granted included depositions of witnesses and affidavits from individuals who had firsthand or expert knowledge about the circumstances surrounding the accident. The deposition testimony *451 of Danny Morgan, maintenance superintendent, and Robert Brinegar, the shop foreman, provided background on the rebuilding of the portal-bus. According to their testimony, they designed the rebuild of this portal-bus from the trolley bus to a battery-run bus. As part of the redesign they altered the braking system, changed the motor and speed reducer, and moved the batteries inboard. When Mr. Brinegar and Mr. Morgan made these modifications to the portal-bus, they consulted none of the engineers at the respondent's coal mine, no one from the manufacturer Lee Norse Company, and no one from MSHA or the West Virginia Department of Mines. These modifications were made by the shop crew who worked in the mine, under the supervision of Clinton Murphy. Mr. Brinegar stated that they did test the portal-bus once these modifications were made, but as far as he knew, there was never an actual underground test performed with people in the portal bus. Mr. Brinegar also stated that this was the only piece of equipment on which he and Mr. Morgan had ever made modifications to the braking system.
Harvey Stover, safety committeeman and president of the local union, stated in his deposition that he had received many complaints regarding the safety of the portal-bus from the employees who worked in the section of the mine which used this portal-bus. The employees informed him on several different occasions that the bus had a tendency to wreck or jump the tracks. Mr. Stover also received complaints that the batteries were not secure, and was asked to have them repaired and secured before they harmed someone. Although the portal-bus was put in the shop for repairs after complaints had been lodged, complaints were made again within a few days before the accident on October 25, 1983. The complaints Mr. Stover received before the October 25 wreck were that the batteries in the bus were not secure and that the bus continued to wreck. Mr. Stover stated that he reported these complaints to Mr. Scaggs, appellee's safety director, and that he was sure Mr. Scaggs made the company aware of the reported problems with this portal-bus. In addition, Mr. Stover testified that he had asked a company man not to use this portal-bus a few days before this accident occurred because the bus kept wrecking and the batteries were not properly secured.
Joe Subrick, a mining engineer with mining experience as a shop foreman and mine superintendent, submitted an affidavit in which he offered his opinion regarding the accident involving the appellant. Mr. Subrick stated that the portal-bus in which the appellant was riding "was an unsafe working condition and presented a high degree of risk and a strong probability of serious injury or death...."[7] Mr. Subrick further stated that "the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working conditions."[8]
Finally, Mr. Subrick stated that "the aforesaid unsafe working condition was a violation of a state or federal safety statute, rule or regulation, and/or of a commonly accepted and well-known safety *452 standard within the industry or business of Beckley Coal Mining Company," due to the fact that: (1) sand was not provided on the portal-bus; (2) adequate and ready inspection access to the chain area was not provided; (3) adequate maintenance of man-trip vehicles was not conducted. Mr. Subrick found that it was obvious that the appellant "was severely injured as a direct result of being exposed to the foregoing unsafe working condition."
Rex Haynes, Ph. D., an engineer, stated in a deposition that the portal-bus was grossly overweight, and that as a result of this, the inadequate braking system failed, which rendered the bus uncontrollable and caused it to wreck. Dr. Haynes additionally expressed his opinion that if there had been sand in the sanding devices, there would have been an increase in traction. If this had been so, the portal-bus may not have wrecked.[9]
We find that the preceding evidence was sufficient to show that genuine issues did exist with regard to the five material facts required under the statute. To begin, we find that there was evidence that the portal-bus was a specific unsafe working condition. Joe Subrick stated this fact in his affidavit and provided six reasons to substantiate his opinion. As to (B), whether the respondent had a subjective realization and an appreciation of the existence of this unsafe working condition, we find that a genuine issue existed in light of the testimony contained in Harvey Stover's deposition. Mr. Stover, who was a safety committeeman, explained that he had received numerous complaints about this specific portal-bus. Mr. Stover reported these complaints to the appellee's safety director, Mr. Scaggs, and Mr. Stover stated that he was sure that the company was made aware of the problems with this portal-bus. Actually, Mr. Stover answered affirmatively that a few days before the October 25, 1983 accident, he asked a company man not to use this specific portal-bus because of its tendency to wreck and its unsecured batteries.
With regard to the requirement of (C), that the working condition be a violation of a safety code, or rule or regulation, we find it of consequence that after this accident, MSHA cited the appellee with a violation for not maintaining sand in the sanding devices. The West Virginia Department of Mines issued a citation for the same violation under state law. Although the appellee asserts that the lack of sand in the sanding devices was of no consequence due to total brake failure, appellant's expert offered a differing opinion. Rex Haynes, the appellant's expert, stated that if there had been sand in the sanding devices, there would have been an increase in traction and that if there had been more traction, the accident may not have occurred.
As for (D), there needed to be some proof that even though the appellee had been apprised of this specific unsafe working condition, the appellant continued to be exposed to it. Harvey Stover testified that he had received complaints from employees concerning problems with this specific portal-bus a few days before the accident and had informed a company man about these problems. We find that this evidence creates a genuine issue of fact as to whether the appellant was subjected to the unsafe condition after the appellee had been apprised of the problems.
Finally, under (E) the appellant must have suffered serious injury or death as a result of the specific unsafe working condition. There was evidence that the appellant received serious injuries when this portal-bus wrecked, both from the result of the actual wreck and the fact that the batteries in the passenger compartment dislodged and struck his head.
In its final order, the court found that the appellant failed to satisfy the requirements for the implication of "deliberate intention" required by W.Va.Code § 23-4-2(c)(2)(ii). The court stated that working conditions alleged by the petitioner did not individually or collectively constitute *453 a specific unsafe working condition; that the appellee had no knowledge of and could not have anticipated that the braking system would fail; and that the violation the appellee was charged with after the accident did not deal specifically with the condition of the braking system of the portal-bus. The court concluded that it had "considered the allegations and evidentiary support to determine whether they were of the quality and weight that reasonable and fair-minded people in the exercise of impartial judgment could reasonably return a verdict for the nonmoving party...."
The court appeared to base its decision at least in part on a belief that the appellant had failed in his burden of proof. This conclusion has no merit, for the appellant did not carry the responsibility at that time of proving that a jury could return a verdict in his favor. We stated in Lengyel v. Lint, 167 W.Va. 272, 280, 280 S.E.2d 66, 71 (1981) that
[t]he question on a motion for summary judgment is not, ... whether the plaintiff has met the burden of proof on material aspects of his claim. It is, rather, whether a material issue of fact exists on the basis of the factual record developed to that date. The burden on a motion for summary judgment is not upon the nonmoving party to show that he has developed facts which would allow him to prevail if his cause was submitted to a jury. The burden is on the moving party to show that there is no genuine issue as to any material fact in the case....
When the court granted summary judgment and dismissed this civil action, both the grounds on which the appellant premised his suit were effectively dismissed. In its decision to dismiss and grant summary judgment, the court discussed the theory of liability derived from W.Va.Code § 23-4-2(c)(2)(ii), but did not address the products liability theory. Although dismissal under this theory was obviously warranted,[10] the court should have considered each of the grounds on which appellant's suit was based. "On a motion for summary judgment all papers of record and all matters submitted by both parties should be considered by the court." Aetna Casualty & Surety Co. v. Fed. Ins. Co., Syl.Pt. 2, 148 W.Va. 160, 133 S.E.2d 770 (1963).
We believe that upon a review of the evidence, there were genuine issues outstanding as to the material facts in the appellant's case, and that the appellee failed to prove a lack of such genuine issues. We held in syllabus point 3 of Aetna Casualty & Surety Co. v. Fed. Ins. Co., that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Id. In addition, we have held that "[a] party is not entitled to summary judgment unless the facts established show a right to judgment with such clarity as to leave no room for controversy and show affirmatively that the adverse party can not prevail under any circumstances." Aetna, 133 S.E.2d at 777.
We therefore reverse the court's decision to grant summary judgment and remand this case to the circuit court.
Reversed and remanded.
NOTES
[1] In the memorandum order entered in the United States District Court on September 25, 1986, it was reported that the appellant suffered as a result of this accident a fractured clavicle, a fractured left ankle, a cerebral concussion, injuries to the back and right knee and various lacerations, abrasions and contusions.
[2] In his brief, the appellant asserts that a "safeguard" had previously been issued against the appellee by MSHA for failure to maintain sand in the sanding devices. In addition, he asserted that after the investigation concerning the October 25, 1983 accident, a "safeguard" was issued against the appellee for not having the batteries in the seating area suitably secured. These alleged "safeguards" were not made a part of the record on appeal. Furthermore, upon a review of the Code of Federal Regulations, no reference or explanation is supplied as to the meaning of a safeguard. In its brief, appellee did not refute that these "safeguards" were issued, nor did the appellee provide us with any information regarding the existence or non-existence of a "safeguard". Because an adequate explanation as to the meaning of a "safeguard" was not provided by the appellant, we decline to consider the ramifications such "safeguard" could pose in this case. See State v. Stewart, 161 W.Va. 127, 131, 239 S.E.2d 777, 780 (1977).
[3] The appellant also sued individual employees of Beckley Coal Mining Company and Lee Norse Company, the manufacturer of the portal-bus. Nevertheless, this appeal concerns only Beckley Coal Mining Company.
[4] The appellee removed this action to the United States District Court for the Southern District of West Virginia. According to the appellee, the District Court remanded the case back to the Raleigh County Circuit Court because the manufacturer, Lee Norse Company, failed to join in the removal petition.
[5] Lee Norse Company was originally named a defendant in this suit, but this claim was settled in August, 1986, for a nominal fee. According to the appellant, the agreement to settle was due to the fact that it was established that the appellee had altered and/or remade the portal-bus without any guidance, advice or assistance from Lee Norse Company.
[6] W.Va.R.Civ.Pro. 12(c) provides, in pertinent part:
"If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56,...."
[7] The following reasons were given to substantiate this opinion:
(1) failure to maintain sand for additional braking capacity; (2) conversion of the portal-bus from trolley power to battery power without appropriate engineering and design consultation; (3) placing batteries in the confined passenger area; (4) inadequately securing the batteries; (5) lack of easy access to chain inspection; (6) absence of an additional operator of portal-bus.
[8] The following reasons were given to substantiate this opinion:
(1) the respondent and management were aware of the step grade the portal-bus had to negotiate and that this grade called for extreme caution because it presents a clear danger; (2) the respondent should have been aware that sand was not being maintained; (3) the respondent wand management failed to maintain the vehicle in a safe operating condition, which was compounded by the fact that the passengers were in an area of no escape with no control over their own safety; (4) the respondent and management should have known of the danger of an overloaded portal-bus negotiating a steep grade without adequate slowing or stopping controls.
[9] This evidence was stated in the appellant's brief, but the deposition itself was not made a part of the record on appeal.
[10] West Virginia Code § 23-4-2 (1985) provides that an employer in good standing with Workers' Compensation is immune from suit by an employee, except for liability involving "deliberate intention" under W.Va.Code § 23-4-2(c)(2).
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196 Ga. App. 706 (1990)
396 S.E.2d 916
BUTLER
v.
THE STATE.
A90A0864.
Court of Appeals of Georgia.
Decided September 4, 1990.
Alden W. Snead, J. M. Raffauf, for appellant.
Frank C. Winn, District Attorney, for appellee.
POPE, Judge.
Defendant Gerald Dwayne Butler was convicted by a jury of the offenses of aggravated assault, criminal trespass, DUI and habitual violator. He was charged with but acquitted of the offenses of kidnapping and burglary. On appeal, he contends the evidence was insufficient to authorize the convictions against him and the trial court erred in its charge to the jury.
Construed in a light most favorable to the verdict, the record shows the following: On July 29, 1988, Lynette Argo was driving along Austell Road on her way to work. Defendant, who was driving a truck, was also traveling on Austell Road. Argo moved into the left lane, intending to pass the defendant. However, defendant moved over into Argo's lane and prevented her from passing. Argo testified her first thought was that defendant did not see her trying to pass, so she attempted to pass again and defendant again came over into her lane, causing her to hit the median. Argo then followed defendant in order to get his tag number. Argo testified defendant was shaking his fist at her and slamming on his brakes, causing her to almost hit him. Argo pulled into the parking lot of the KOA campground and defendant rammed into the back of her car. Argo testified she had her seatbelt on when defendant hit her but that the hit was strong enough to "jar her." Argo ran into the campground office and Jean Lee, a KOA employee, locked the door and telephoned police. Lee testified she saw Argo trying to turn into the KOA parking lot and that it appeared that defendant was trying to keep her from pulling in. Lee also testified that defendant initially pulled alongside Argo, but then backed up and rammed into the back of Argo's car. Both witnesses testified defendant tried to drive away, but that he ran into a ditch and was forced to flee on foot.
Lynette Lawrence testified that she lived at Douglas Estates Mobile Home Park and that on July 29, 1988, she was at home alone with her young son. Lawrence, who was in the back of the trailer cleaning the bathroom, testified her son walked in and told her "the managers" were there. Lawrence walked down the hallway and saw defendant standing in her front room. Defendant was dressed only in a pair of white short-type swim trunks and was barefooted. Defendant told Lawrence he needed to use the telephone and she told him she did not have one. Defendant also told her he needed clothes and a hat. Lawrence testified the defendant took her by the arm and forced *707 her into the bedroom to get a pair of pants. Defendant placed the pants over his swim trunks and wrote down a name and telephone number for her to call. The defendant, Lawrence, and her son walked to the manager's office to use the telephone. Lawrence testified she made the call for defendant, but that he "jerked" the phone out of her hand after she got the other party on the line. Lawrence testified defendant then took her by the arm and led her back to her trailer, where they were intercepted by police. Lawrence testified the defendant threatened to kill her son if she refused to do what he told her to do.
One of the managers of the trailer park, Denise Moore, testified that Lawrence and defendant came into the office and Lawrence asked to use the phone. Moore stated that Lawrence appeared agitated and that defendant appeared "desperate." Moore said Lawrence initially placed the call and defendant "grabbed" the phone from her. After the call was completed, defendant led Lawrence out by the arm, as if "guiding" her out of the door.
Defendant also testified at trial. He admitted the DUI and habitual violator charges. Defendant testified that he noticed a woman (Argo) trying to pass him, and that she was blowing her horn. Defendant stated he might have been weaving because of a problem with his tires and because he had been drinking, but that he moved over to allow Argo to pass. According to defendant, Argo kept blowing her horn at him and making hand gestures so he decided to follow her into the KOA parking lot "to see what her problem was." Defendant admitted he hit the rear of Argo's car, but stated the problem with his tires prevented him from stopping immediately, and that the impact was slight and did very little damage.
Defendant further testified that he "freaked out" after he hit Argo's car, and he ran his truck into a ditch while trying to flee the scene. Defendant then fled on foot. Defendant testified he went to a trailer and a little boy came to the door. He testified the boy went to the back of the trailer and Lawrence came to the door. Defendant said he told Lawrence he had an accident, that he "was probably in a little bit of trouble," and that he needed to use a phone. Lawrence told him she did not have a phone, and defendant said he asked her if he could borrow a pair of pants and a hat. Defendant testified Lawrence agreed to give him a pair of pants and let him enter the trailer. Defendant testified he stepped into the kitchen of the trailer but did not accompany Lawrence to the rear of the trailer when she went to get the pants.
Defendant further testified Lawrence told him there was a phone in the manager's office and he asked her to go with him to place the call because he did not know the manager. According to defendant, Lawrence agreed to make the call for him. Defendant said he reached *708 for the phone after Lawrence got his mother on the line, but denied "grabbing" the phone from her. Defendant testified he and the victim were intercepted by the police on their way back to Lawrence's trailer.
1. (a) Defendant challenges the sufficiency of the evidence to support his conviction of the offense of aggravated assault, arguing the State failed to show an intent to inflict serious bodily injury. "`A person commits the offense of aggravated assault when he assaults:... (2) ... with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.' OCGA § 16-5-21. Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle's use. Blalock v. State, 165 Ga. App. 269, 270 (299 SE2d 753) (1983). The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury's determination. Banks v. State, 169 Ga. App. 571, 572 (314 SE2d 235) (1984); Quarles v. State, 130 Ga. App. 756 (2) (204 SE2d 467) (1974). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty of the offense of aggravated assault of [Argo] beyond a reasonable doubt. [Cits.]" Spaulding v. State, 185 Ga. App. 812, 813 (366 SE2d 174) (1988).
(b) Defendant also challenges the sufficiency of the evidence to convict him of the criminal trespass charge, arguing the State necessarily failed to prove that he entered the Lawrence residence "for an unlawful purpose" (see OCGA § 26-7-21 (b) (1)) because he was acquitted of the burglary and kidnapping charges "[Defendant] requested the charge on criminal trespass. This being so, [defendant] may not rely on the jury verdict acquitting him [of the greater offenses]. As the evidence would have authorized a conviction for [burglary or kidnapping], it cannot be said that the verdict of guilty as to criminal trespass is without evidentiary support." Favors v. State, 149 Ga. App. 563, 564 (1B) (254 SE2d 886) (1979).
2. Defendant next contends that the trial court's charge on voluntary intoxication was erroneous. We disagree. Contrary to his unsupported contentions on appeal, defendant "did not carry [his] burden of showing that [his] intoxication negated intent to commit the aggravated assault [charge]." Horton v. State, 258 Ga. 489, 491 (8) (371 SE2d 384) (1988). Consequently, this enumeration is without merit.
3. Lastly, defendant challenges the trial court's charges on lesser included offenses. However, contrary to defendant's arguments on appeal, the trial court properly charged the jury on the consideration of lesser included offenses. See Zackery v. State, 257 Ga. 442, 443 (3) (360 SE2d 269) (1987). Specifically, the trial court did not instruct the jury, as defendant contends on appeal, that they first had to *709 "unanimously acquit" defendant of the greater offenses before they could consider the lesser offenses. Moreover, the charges given as to the lesser offenses were substantially the same as those requested by defendant. "[I]nduced error cannot be complained of on appeal." Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988).
Judgment affirmed. Deen, P. J., and Beasley, J., concur.
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196 Ga. App. 493 (1990)
396 S.E.2d 241
FREGEAU
v.
HALL.
A90A0262.
Court of Appeals of Georgia.
Decided May 29, 1990.
Rehearing Denied July 23, 1990.
Lokey & Bowden, Charles M. Lokey, K. Scott Graham, for appellant.
Bailey & Bearden, J. Lane Bearden, for appellee.
SOGNIER, Judge.
Jimmy Hall brought suit against Betty Fregeau d/b/a Betty's Metropolitan Insurance Services, alleging negligent or fraudulent failure to procure "full coverage" insurance for a building he owned. We authorized Fregeau's interlocutory appeal from the denial of her motion for summary judgment.
The depositions and affidavits in the record disclose that appellee owned two buildings for which his wife, Lynn Hall, acting as his agent, had purchased a fire, vandalism, and extended coverage insurance policy issued by Holyoke Mutual Insurance Company and written by an agent other than appellant. When that carrier ceased issuing policies in Georgia, Lynn Hall contacted appellant and asked for quotes for insurance on those two buildings plus a metal building appellee had just constructed. After reviewing appellee's existing policy, appellant obtained quotes for the same coverage from several carriers. Ms. Hall selected a Stone Mountain Insurance Company policy, the least expensive option offered, and signed the application under power of attorney from appellee. The parties agree that Ms. Hall specified that she wanted $75,000 of coverage for the metal building, but disagree as to the type of coverage requested. Appellant testified that Ms. Hall requested only fire insurance, but appellant recommended she purchase a fire, vandalism, and extended coverage policy. Ms. Hall testified that she assumed she had asked appellant to obtain *494 the same type of coverage they had with Holyoke, that she had asked for "full coverage," and that although she had not read the Holyoke policy she had thought it provided full coverage. The application Ms. Hall signed has a check mark in the box beside "property" coverage and includes in the same section the handwritten notations "[f]ire," "EC," and "vandalism." After the binder was issued but before the policy itself had been sent to appellee, the metal building collapsed during a heavy snow. It is undisputed that the Stone Mountain policy did not provide collapse coverage, and that the carrier informed appellee that the loss was not covered under the policy.
In Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974), the Supreme Court recognized that an insurance agent or broker who holds himself out as an expert in the field of insurance and who undertakes to provide such expert services to an insured in addition to issuing a policy may be liable for the negligent failure to procure the required coverage. When an agent has undertaken to perform an additional service, such as determining the amount of insurance required, and the insured relies upon the agent to perform that service, the agent may be held liable for negligence in the selection of coverage even if the insured fails to examine the policy. Id. at 271; see Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 688-689 (288 SE2d 58) (1981). However, as we held in Ethridge, when the insured specifies the exact amount of insurance requested and otherwise informs the agent of the details of the coverage sought, the insured's failure to read the policy precludes recovery for negligent performance of a fiduciary duty, and the insured cannot use a contention that he sought "full coverage" "to convert what is actually a request to obtain specific insurance into an indefinite amount to be determined out of the expertise of the broker." Id. at 689.
We agree with appellant that the analysis in Ethridge is applicable in the case at bar. Here, appellee, through his agent, informed appellant of the exact amount of coverage sought for each of the three buildings and indicated he wanted replacement coverage for the previous policy. There is no evidence Ms. Hall, who admittedly had on several occasions procured insurance for these and other holdings, relied on appellant's expertise to appraise the properties and ascertain the proper amount of coverage or otherwise to exercise her discretion so as to relieve appellee of the duty to examine the coverage obtained for him. See id. at 689. Thus, regardless of what coverage appellee requested from appellant, he nonetheless was obligated to make an independent examination of the coverage provided.
Appellee argues that he, unlike the insured in Ethridge, did not receive his copy of the policy before the loss and thus had no opportunity to examine its contents; however, the application signed by his agent clearly indicates the type of coverage to be provided. Although *495 Ms. Hall testified by affidavit that she "understood the application to be for full coverage," no ambiguity exists in the language of the application, no evidence exists that either she or appellee was prevented from reading the application, and the record does not reveal anything other than an arms-length business relationship between the parties. See Credithrift of America v. Whitley, 190 Ga. App. 833, 834 (1) (a) (380 SE2d 489) (1989). "In the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations." (Citations and punctuation omitted.) Id. Since we find no evidence of a fiduciary relationship or other special circumstances, we hold that appellee's failure to exercise ordinary diligence in examining the application and independently verifying that he had received the coverage sought also bars his claim for fraud, see id. at 837 (1), and thus hold appellant was entitled to summary judgment. See Ethridge, supra at 690.
Judgment reversed. Carley, C. J., and McMurray, P. J., concur.
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540 S.E.2d 57 (2000)
ERIE INSURANCE EXCHANGE, Plaintiff,
v.
Sondra Adams BLEDSOE, Defendant.
No. COA99-1392.
Court of Appeals of North Carolina.
December 29, 2000.
*58 Cranfill, Sumner & Hartzog, L.L.P., by Robert W. Sumner and Stephanie Hutchins Autry, Raleigh, for plaintiff-appellee.
G. Henry Temple, Jr. and Stephen W. Petersen, Raleigh, for defendant-appellant.
HUNTER, Judge.
Sondra Adams Bledsoe ("Bledsoe") appeals from the trial court's declaratory judgment after a jury verdict in favor of Erie Insurance Exchange ("Erie"), and its order denying Bledsoe's motion for judgment notwithstanding the verdict, or in the alternative a new trial. Bledsoe assigns as error the trial court's failure to give a special jury instruction regarding proximate concurrent causation in this homeowner's insurance coverage determination suit. After a careful review of the record and briefs, we agree with Bledsoe and find that the trial court erred in failing to give such an instruction, thus we remand for a new trial.
In May 1995, Bledsoe purchased a homeowner's insurance policy from Erie for her residence located in Rolesville, North Carolina. This policy provided coverage for damage to Bledsoe's home caused by certain perils including fire, water damage caused by fire suppression efforts (hereinafter "water damage"), and "collapse." On 13 November 1995, a fire occurred at Bledsoe's home, which resulted in significant damage to the residence. During post-fire repairs, the contractor renovating the home placed approximately three and a half tons of sheet rock on *59 the residence's living room floor for an extended period. As a result of the fire, water damage, and the contractor's actions, Bledsoe alleges that the floor and foundation of the residence (hereinafter "floor") was damaged by "noticeable and substantial buckling and sagging."
While Erie paid Bledsoe for all of the damage to the residence which it believed was caused by the fire and water damage, Erie has refused to pay for the renovations to the floor claiming that the damage at issue was preexisting and the result of natural "settling"an excluded event under the policythat occurred over a long period of time due to the inadequate original construction of the home. Conversely, Bledsoe alleges that the buckling and sagging of the floor was a "collapse" caused by the combination of multiple factors, including fire, water damage, and the contractor's defective methods of renovation, in particular, the placement of three and a half tons of sheet rock on the residence's living room floor.
In an effort to resolve their dispute, Erie instituted this action on 22 November 1996 seeking a declaratory judgment concerning its obligations under the homeowner's insurance policy, specifically whether it was liable under the policy to provide coverage for the renovation of the floor and related costs. Subsequently, Bledsoe filed an answer and counterclaims seeking punitive damages and alleging breach of contract, negligent infliction of emotional distress, and unfair trade practices.
On 28 July 1997, the Honorable Narley L. Cashwell of Wake County Superior Court entered an order, on Erie's motion, bifurcating Erie's declaratory judgment action from Bledsoe's counterclaims. This appeal arises out of the declaratory judgment phase of the litigation.
Erie's declaratory judgment action came on for trial before the Honorable Robert L. Farmer and a duly empaneled jury in Wake County Superior Court on 21 September 1998. Ultimately, two issues were submitted to the jury for resolution:
1. Were the deflections or displacements in the floors a result of the condition of the floor framing and/or the foundation caused by the fire or water to extinguish the fire on November 13, 1995?
2. Were the deflections or displacements in the floors after the fire on November 13, 1995 a collapse caused by the placement of sheetrock by the contractor, Bryant-Phillips Associates?
Judge Farmer instructed the jury based on a "dominant or efficient cause" standard. Specifically, he stated,
When I use the word caused, the word caused means proximate cause to which the loss is to be attributed and is the dominant or efficient cause. In other words, something is caused by an event when the event is the real efficient or proximate cause.
The jury answered "[n]o" to both submitted issues.
Judge Farmer entered a declaratory judgment after the jury's determination on 1 October 1998, declaring that the damage to the floor was not a covered loss under Erie's policy with Bledsoe. On 12 October 1998, Bledsoe followed with a motion for judgment notwithstanding the verdict, or in the alternative a new trial. Judge Farmer denied the motion, and on 30 November 1998, Bledsoe gave notice of appeal.
Bledsoe's sole assignment of error on appeal is that the trial court committed reversible error by denying her request for a special jury instruction regarding proximate concurrent cause as to issue one"[w]ere the deflections or displacements in the floors a result of the condition of the floor framing and/or the foundation caused by the fire or water to extinguish the fire on November 13, 1995?" We agree with Bledsoe's contention that the trial court's failure to incorporate a proximate concurrent cause instruction was reversible error. We find that this error misled the jury, and ultimately precluded the jury from considering that multiple factors may have combined to cause the damage to the floor.
First, requests for special jury instructions are allowed in North Carolina pursuant to N.C.Gen.Stat. § 1-181 and N.C.Gen.Stat. § 1A-1, Rule 51(b). In particular, N.C.Gen. *60 Stat. § 1-181(b) (1999) requires that "requests for special instructions must be submitted to the trial judge before the judge's charge to the jury is begun...."
In the case at bar, Bledsoe complied with this statutory requirement by making her initial request for a special jury instruction prior to the trial court charging the jury. Bledsoe stated, "[t]he only thing I want is a proximate cause instruction and pattern thatpattern the jury instructions." Bledsoe then submitted two pattern proximate cause jury instructionsapplicable to tort casesto the court. As Erie fails to raise any statutory deficiency challenges to the form of Bledsoe's request, we treat Bledsoe's initial prayer as a proper request for a special jury instruction.
Additionally, while we agree with Erie that the pattern instructions submitted by Bledsoe were not applicable to the case sub judice, Bledsoe's intent was to have a special jury instruction which patterned the models that she submitted. She was not requesting the actual pattern jury instructions themselves.
In answer to Bledsoe's request for a special instruction, Judge Farmer responded, "[t]hat's not the law I don't think," and he placed the request in the file. Judge Farmer did not include a proximate concurrent cause instruction in his charge.
After the jury charge was complete, Judge Farmer asked the parties, "if you have any additional matters you wish the Court to consider charging on or any corrections you feel should be made to the charge already given...." In response, Bledsoe submitted a handwritten request adapting the pattern jury instructions to the case at bar. Upon this request, Judge Farmer did not give the proximate concurrent cause instruction, but he did place the request in the file. Erie contends that this request was not timely made, however, according to N.C.Gen.Stat. § 1-181(b), "the judge may, in his discretion, consider such requests [for special instructions] regardless of the time they are made." Judge Farmer had the discretion to elicit and hear additional requests for special jury instructions, thus he did so here. We acknowledge that Bledsoe's requested instruction may have been flawed, however, her intent to have an instruction that incorporated proximate concurrent cause was clear.
Furthermore, our Supreme Court has held that
when a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of the prayer, is nevertheless required to give the instruction, in substance at least, and unless this is done, either in direct response to the prayer or otherwise in some portion of the charge, the failure will constitute reversible error.
Calhoun v. Highway Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935). Therefore, to determine whether the trial court committed reversible error here, we must assess whether Bledsoe's request for a proximate concurrent cause jury instruction was correct in itself and supported by the evidence.
To make this determination, we must address the present state of the law of homeowners' insurance policies in North Carolina. "First, it is well settled in North Carolina that insurance policies are construed strictly against insurance companies and in favor of the insured." State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 546, 350 S.E.2d 66, 73 (1986); Nationwide Mutual Ins. Co. v. Davis, 118 N.C.App. 494, 500, 455 S.E.2d 892, 896 (1995).
Secondly, two primary principles with respect to determining coverage under homeowners' policies have been espoused in North Carolina:
(1) ambiguous terms and standards of causation in exclusion provisions of homeowners policies must be strictly construed against the insurer, and (2) homeowners policies provide coverage for injuries so long as a non-excluded cause is either the sole or concurrent cause of the injury giving rise to liability. Stating the second principle in reverse, the sources of liability which are excluded from homeowners policy coverage must be the sole cause of the injury in order to exclude coverage under the policy.
*61 State Capital, 318 N.C. 534, 546, 350 S.E.2d 66, 73; Nationwide, 118 N.C.App. 494, 500, 455 S.E.2d 892, 896.
At bar, Erie's policy with Bledsoe provides coverage for damage by fire and water damage resulting from fire suppression efforts. Further, Erie's policy with Bledsoe also provides coverage for "collapse":
8. Collapse. We insure for direct physical loss to covered property involving collapse of a building or any part of a building caused only by one or more of the following:
...
f. use of defective material or methods in construction, remodeling or renovation if the collapse occurs during the course of the construction, remodeling or renovation.
Importantly, this Court has previously deemed the term "collapse" as used in homeowners' policies ambiguous and has construed the ambiguity against the insurance company and in favor of the insured. See Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C.App. 443, 453, 481 S.E.2d 349, 356 (1997); Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C.App. 506, 512, 428 S.E.2d 238, 241 (1993); Thomasson v. Grain Dealers Mut. Ins. Co., 103 N.C.App. 475, 476, 405 S.E.2d 808, 809 (1991). At bar, Erie's policy makes clear that coverage for "collapse" is allowed if, "caused only by one or more of the following ... use of defective ... methods in construction, remodeling or renovation...." However, the policy does not make clear whether coverage for "collapse" is allowed if one of the listed factorsin this case, defective methods of renovationcombines with another covered peril under a different provision of the policyfire and water damageto cause a "collapse." Thus, we deem the term "collapse" as it appears in Erie's policy with Bledsoe ambiguous.
We recognize that Erie's policy with Bledsoe excludes liability for "settling" in two places. In Section IPerils Insured Against, the policy states, "we do not insure loss: ... (2) caused by: ... (f) ... (6) settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings...." Also, in the "collapse" provision itself, it is stated, "[c]ollapse does not include settling, cracking, shrinking, bulging or expansion."
However, this Court has in the past held that coverage will not be barred by the "settling" provision in a homeowners' policy when there is evidence of "settling" which is so severe that it "suddenly and materially impair[s] the structure or integrity of [a] building," and therefore constitutes a "collapse." Guyther, 109 N.C.App. 506, 513, 428 S.E.2d 238, 242; Markham, 125 N.C.App. 443, 453, 481 S.E.2d 349, 356. Moreover, provisions, such as Erie's "settling" clauses, "which exclude liability of insurance companies are not favored" by this Court. State Capital, 318 N.C. 534, 547, 350 S.E.2d 66, 73; Nationwide, 118 N.C.App. 494, 500, 455 S.E.2d 892, 896.
Hence, evoking principle one as stated in State Capital above, we strictly construe all ambiguities against Erie and in favor of Bledsoe. We next repeat the second principle regarding homeowners' policy coverage stated in State Capital, "the sources of liability which are excluded from homeowners policy coverage must be the sole cause of the injury in order to exclude coverage under the policy." 318 N.C. at 546, 350 S.E.2d at 73. Under this interpretation, "settling" must be the sole cause of the damage to Bledsoe's floors to be excluded under the policy.
Through issue one"[w]ere the deflections or displacements in the floors a result of the condition of the floor framing and/or the foundation caused by the fire or water to extinguish the fire on November 13, 1995?"the jury was only allowed to determine whether the fire and water damage (covered perils) resulted in the damage to the floor.
Through issue two"[w]ere the deflections or displacements in the floors after the fire on November 13, 1995 a collapse caused by the placement of sheetrock by the contractor, Bryant-Phillips Associates?"the jury was only allowed to consider whether the damage to the floor was a "collapse" caused by defective methods of renovation (covered peril).
*62 We disagree with Erie's conclusion that the existence of issue two gave the jury an actual opportunity to consider multiple causes of the damage to the floor. With regards to this second issue, we accept that the jury answered that the damage to the floor was not a "collapse" caused by the contractor's placement of sheet rock. However, we find that the wording of issue two limited the scope of the jury's analysis, so that they could only consider one cause of the collapse, the sheet rock, and no other.
Consequently, while the jury was allowed to consider through these two submitted issues whether (1) the fire and water damage or (2) defective methods of renovation (all covered perils) individually caused the damage to the floor, at no time was the jury allowed to determine whether (1) the fire and water damage combined with (2) the contractor's defective methods of renovation to cause a "collapse," or in the alternative, "settling" so severe that it constitutes a "collapse" (covered peril). A question of that nature should have been sent to the jury for determination.
Accordingly, we find that there was sufficient evidence presented at trial to have submitted to the jury this issue of whether the damage was a result of natural "settling," as Erie contends, or the combination of (1) fire and water damage (covered perils) and (2) the contractor's defective methods of renovation (covered peril), which caused a "collapse," or in the alternative, "settling" so severe that it constitutes a "collapse" (covered peril)a prospective issue three.
We find little guidance in the line of North Carolina cases that interpret insurance contracts' "windstorm" provisions, and we therefore find these cases distinguishable from the case at bar. See Harrison v. Insurance Co., 11 N.C.App. 367, 181 S.E.2d 253 (1971); Wood v. Insurance Co., 245 N.C. 383, 96 S.E.2d 28 (1957); Miller v. Insurance Association, 198 N.C. 572, 152 S.E. 684 (1930).
All three cases mentioned above address insurance policies which provide "windstorm" coverage. Although these cases do rightfully uphold a "dominant or efficient cause" standard, they are distinguishable in this instance. For example, unlike the case at bar, these cases do not deal with coverage under the "collapse" provision of a homeowner's policy. Secondly, "windstorm" has not been deemed ambiguous by this Court, while "collapse" has been so deemed. These cases therefore are not applicable to the case sub judice.
More directly on point, this Court has on at least three occasions specifically dealt with "collapse" provisions under homeowners' insurance policies. See Markham, 125 N.C.App. 443, 481 S.E.2d 349; Guyther, 109 N.C.App. 506, 428 S.E.2d 238; Thomasson, 103 N.C.App. 475, 405 S.E.2d 808. In each case, we deemed "collapse" ambiguous. Id. In two of these cases, we specifically dealt with the "settling" exclusion provision. Markham, 125 N.C.App. 443, 481 S.E.2d 349; Guyther, 109 N.C.App. 506, 428 S.E.2d 238. Finally, in both cases, we refused to bar coverage for "collapse" under the "settling" provision as there was sufficient evidence that the "settling" was so severe that it could constitute a "collapse." Id. Thus, our holding at bar is entirely consistent with our prior rendered decisions interpreting "collapse" and "settling" provisions of homeowners' insurance policies.
We reiterate that our holding here is based on the ambiguity of the term "collapse" as it appears in Erie's policy with Bledsoe. Further, we stress that our holding is not premised on the notion that the "dominant or efficient cause" jury instruction used sub judice was improper, but, in fact, we find that the court's instruction was simply incomplete and unclear. Without a proximate concurrent cause clarification here, we find that the jury was not fully instructed in the law as they were not allowed to consider whether multiple factors combined to cause the damage at issue.
Nevertheless, when, as here, the facts and circumstances surrounding a claimespecially causationremain in dispute, it is for the jury, not the trial court, to determine whether the ultimate cause of the claimed damages falls within the scope of the policy's exclusionary provisions, as defined by the trial court.
*63 Markham, 125 N.C.App. 443, 453, 481 S.E.2d 349, 355.
Thus, Bledsoe's request for a proximate concurrent cause jury instruction, although flawed, was correct in itself and supported by the evidence. Consequently, the trial court's failure to include a charge incorporating a proximate concurrent cause instruction in substance was reversible error. We hereby remand for a new trial consistent with this opinion.
New trial.
Judges LEWIS and WYNN concur.
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178 Cal.App.4th 557 (2009)
In re R.N., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
E.G., Defendant and Appellant.
No. B209458.
Court of Appeals of California, Second District, Division Seven.
October 20, 2009.
*559 Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
John L. Dodd & Associates and John L. Dodd for Minor.
OPINION
ZELON, J.
Minor R.N.'s grandparents were appointed her guardians in 1996. After the death of both grandparents, R.N.'s aunt D. filed a Welfare and Institutions Code section 388[1] petition seeking to be appointed her guardian. Father E.G. (Father) appeals the dependency court's order appointing D. as R.N.'s guardian, and a separate order summarily denying his subsequent section 388 petition challenging D.'s appointment. Father contends that under section 366.3, he was entitled to be considered as R.N.'s guardian and to be given reunification services, and that the dependency court erred in summarily denying his separate section 388 petition to terminate R.N.'s guardianship and give custody of R.N. to him. We reverse, because the failure to consider the provisions of section 366.3 deprived Father of his rights.
*560 FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Proceedings Held in 1994-1996
R.N. was born in April 1994 with a positive toxicology screen for cocaine. The Los Angeles County Department of Children and Family Services (the Department) detained her and placed her with her paternal grandparents, R.G. and A.G. Mother (Mother) had a long history of using crack cocaine, and Father had a 20-year history of heroin, marijuana, crack and cocaine abuse. The disposition report stated that Father had been employed as a general laborer, but his last employment had been two years earlier. He was currently on general relief. The Department recommended drug rehabilitation services for both parents.
At the detention hearing April 21, 1994, neither parent was present. The court ordered R.N. to remain with her grandparents, and set a pretrial resolution conference for May 19, 1994. At that hearing, the dependency court sustained the petition, ordered family reunification services (drug treatment, random testing, parenting education, and monitored visitation) and set the matter for a six-month review hearing on November 17, 1994.
The Department's report prepared for the six-month hearing stated that Mother's whereabouts were unknown and that Father moved from motel to motel. Neither parent had complied with the reunification plan. Mother had told the social worker she had no intention of enrolling in drug treatment because she did not feel she had a drug problem. Father had not enrolled in a drug program, but had visited R.N. several times, although grandmother did not feel Father had bonded to R.N.
At the November 17, 1994 hearing, the court ordered additional reunification services and continued the matter for a 12-month review hearing on May 18, 1995.
The Department's report for the 12-month review hearing stated that Mother's whereabouts remained unknown, but that Father lived in Los Angeles. In April 1995, Father enrolled in a drug treatment program. R.N. was progressing normally, and had bonded with her grandmother. At the May 18, 1995 hearing, the court ordered additional reunification services and continued the matter for an 18-month review hearing on October 25, 1995.
*561 The Department reported on October 19, 1995, that Father had been arrested for being under the influence of a controlled substance and was in jail. Further, the parents had not complied with their reunification plan. At the October 25, 1995 hearing, the court ordered Regional Center services for R.N. and set the matter for a permanency planning hearing on February 21, 1996.
The Department's report prepared for the permanency planning hearing stated that R.N.'s grandparents were bonded with her and wanted to be her legal guardians. R.N.'s parents had not enrolled in drug treatment or maintained contact with R.N. The case plan update filed for the hearing stated that R.N. had been referred to Regional Center services for speech therapy. Mother's whereabouts remained unknown, and Father continued to live the same lifestyle and use drugs. The Department recommended guardianship as R.N.'s permanent plan.
The grandparents' petition to be appointed R.N.'s guardians was granted April 24, 1996.
2. Proceedings Held in 2008
(a) D.'s Section 388 Petition.
On April 28, 2008, R.N.'s aunt D. filed a petition seeking to be appointed as R.N.'s guardian due to the death of R.N.'s grandparents.[2] The petition stated that grandfather had died in 2006, and grandmother on February 23, 2008. It reported Father had been living with the family since approximately 1997 because he had been "near death from drug use and living on the streets." Father had become disabled and unable to work as a result of his addiction. At some point, R.N.'s uncle A. also had come to live with the grandparents; A. is disabled with a probable diagnosis of paranoid schizophrenia. D., who is Father and A.'s sister, reported she was married, residing in Santa Cruz and had raised two daughters. D. asserted that it would be unhealthy and unsafe for R.N. to be raised by Father and A. The petition stated that grandmother had nominated D. as R.N.'s guardian, and that R.N. wanted to live with D.
*562 Father opposed D.'s guardianship, and called the police to report a kidnapping while R.N. was at a meeting with an attorney in Ventura County about living with her aunt D. At a hearing held in Ventura County on April 18, 2008, the judge advised the parties that jurisdiction over the case remained in Los Angeles County.[3] The court permitted R.N. to live with D. during the pendency of the proceedings. On May 2, 2008, the dependency court in Los Angeles County reinstated its jurisdiction, and set the matter for a pretrial resolution conference on June 13, 2008.
Father opposed the section 388 petition, contending that he had rehabilitated his life, had not used drugs for 10 years, was no longer disabled and was working, had resided with R.N. at the grandparents' house for the last 10 years, and had been involved in R.N.'s upbringing. He contended that grandmother's nomination of D. as guardian was "misguided" because only a parent could nominate the guardian of a minor. Father sought termination of the dependency proceedings.
D. responded that Father had not been employed for the past several years and when she visited her mother during her illness, she found the house was dirty and that Father was abusing the family dog. D. did not believe Father had the ability to provide for R.N.'s needs.
The Department's report filed on D.'s section 388 petition stated that R.N. was currently living with D. in Santa Cruz. While R.N. was living with Father, the social worker investigated the home and found it "unkempt." There were clothes in the living room, dishes in the sink, and no food in the house. R.N. reported that grandmother wanted her to be placed with D. when grandmother died. R.N. stated that Father has outbursts, that Father and his brother A. did not speak to each other, and that he claimed that D. had stolen money from grandmother. Although the social worker found claims that Father was not meeting R.N.'s needs were unfounded, the Department believed it should assess D. as a prospective legal guardian for R.N.
When interviewed in June 2008, Father told the social worker his life had "completely changed," and that he did not understand why R.N. could not live with him. R.N., however, wanted to live with D., with whom she had visited every year since she was three years old.
The family assessment of D. indicated that she was married and taught elementary school, lived with her family in a four-bedroom home, and her *563 two daughters were excelling in their educational endeavors. R.N. was in the eighth grade and was having some trouble at school. The Department noted that Father had never been R.N.'s primary caregiver, and that after grandmother died, R.N. was often left to fend for herself. Although Father claimed he was sober, during the preceding 12 years he had not filed a section 388 petition to regain custody of R.N. The Department believed it was in R.N.'s best interest to remain with D. due to her grief over the loss of her grandparents and Father's ongoing hostility with A. For this reason, it would be better for R.N. to be in a peaceful and nurturing home environment where she could receive needed emotional support. The Department recommended a section 366.26 hearing be calendared to appoint D. as R.N.'s guardian.
At the June 13, 2008 hearing, the dependency court noted that Father had not filed his own section 388 petition, and although his parental rights had not been terminated, R.N. was subject to the guardianship and therefore not under Father's control. The court asserted jurisdiction over the matter, and indicated that once it ruled on the section 388 petition, the case could be transferred to Ventura County. The court set the matter for a contested section 388 hearing on July 11, 2008, and ordered monitored visitation between Father and R.N.
On June 19, 2008, D. filed a de facto parent request, which the dependency court also set for hearing on July 11, 2008.
On July 11, 2008, the court denied D.'s de facto parent request because R.N. had not been placed with her for more than six months. With respect to D.'s section 388 petition, the court noted that because Father had not filed his own section 388 petition to obtain custody, the court could only rule on D.'s section 388 petition. The court granted D.'s petition, appointed her R.N.'s guardian, and terminated dependency court jurisdiction. The court observed that if Father wished to contest the court's rulings, he needed to file his own section 388 petition. The court issued letters of guardianship to D.
(b) Father's Section 388 Petition.
On September 26, 2008, Father filed a section 388 petition seeking custody of R.N. and termination of D.'s guardianship. Father alleged that the conditions leading to the dependency proceedings no longer existed because he had lived with R.N. for 10 years, developed a bond with her, and made many choices with respect to R.N.'s schooling and health. He claimed to have been substance free for over 10 years, and reported that he was a member of the *564 Church of Jesus Christ of Latter Day Saints where he was an elder. Father had earned 121 college units at Ventura College, and was a registered tax preparer, although he admitted he was on SSI. Father claimed to have taken care of grandmother while she was ill.
On October 17, 2008, the court summarily denied Father's section 388 petition on the grounds it did not establish it would be in R.N.'s best interests to change her placement.
DISCUSSION
Father contends the dependency court erred in granting guardianship to D. and in denying his section 388 petition. In particular, Father contends that under section 366.3 he was entitled to reunification and to be considered for custody of R.N., and that a separate section 388 petition was not required for him to advance these arguments.[4]
(1) At a selection and implementation hearing held pursuant to section 366.26, the dependency court must choose a permanent plan for the child. The court may terminate parental rights and order adoption; identify adoption as the permanent plan and order efforts be made to locate an adoptive family without terminating parental rights; order legal guardianship without terminating parental rights; or order long-term foster care without terminating parental rights. (§ 366.26, subd. (b); In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534 [84 Cal.Rptr.2d 505].) Pursuant to section 366.26, a guardianship may be selected as the permanent plan where termination of parental rights and adoption are not in the child's best interests, or termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1).)
Pursuant to section 366.3, when the dependency court orders a permanent plan of legal guardianship, the court retains jurisdiction over the child until the guardianship is established. The court may thereafter continue jurisdiction over the child, or may terminate jurisdiction and retain jurisdiction over the minor as a ward of the guardianship established by section 366.26 and as authorized by section 366.4.[5] (§ 366.3, subd. (a); In re Heraclio A. (1996) 42 *565 Cal.App.4th 569, 574 [49 Cal.Rptr.2d 713]; see also Cal. Rules of Court, rule 5.740(a)(3).) "Thus, even though the juvenile court terminates dependency jurisdiction in a case, the juvenile court still retains jurisdiction over the guardianship. . . ." (In re D.R. (2007) 155 Cal.App.4th 480, 486-487 [66 Cal.Rptr.3d 151].)
(2) Section 366.3 governs termination of guardianships.[6] "Section 366.3 recognizes that there may be a need to terminate a guardianship established as the permanent plan for a dependent child. To this end, it sets forth a procedure for notice, evaluation of the problems and possible solutions, and a mechanism by which reunification services to the parent(s) might be reinitiated if the guardianship is terminated." (In re Jessica C. (2007) 151 Cal.App.4th 474, 481 [59 Cal.Rptr.3d 855].) Section 366.3, subdivision (f) provides that parents whose rights have not been terminated may participate in a guardianship termination hearing, and may be considered as custodians for the child, and the child returned to them if they establish, by a preponderance of the evidence, that reunification is in the child's best interests. If such a finding is made, reunification services may be provided to the parent for up to six months. (§ 366.3, subd. (f).)
*566 (3) Section 366.3 does not specify whether the death of the guardian terminates the guardianship, nor does it specify the procedures to be followed in the event the guardian can no longer serve. In the absence of such guidance, courts have held sections 387 and 388 are appropriate vehicles where a new guardian must be appointed or the guardianship terminated. (In re Jessica C., supra, 151 Cal.App.4th at p. 481; see also In re Carrie W. (2003) 110 Cal.App.4th 746, 757 [2 Cal.Rptr.3d 38] [§ 388 may be used to bring guardianship termination petition].) Jessica C., relying on the language of California Rules of Court, rule 5.740(c) reasoned, "The language of California Rules of Court, rule 5.740(c), recognizes that a petition seeking to terminate a guardianship may be brought as either a petition to modify or a petition to supplement the previous order, depending on the circumstances. [Rule 5.740(c)] provides that `[a] petition to terminate a guardianship established by the juvenile court, to appoint a successor guardian, or to modify [§ 388] or supplement [§ 387] orders concerning the guardianship must be filed in juvenile court.'" (Jessica C., at p. 481.)
(4) Thus, the court did not err in permitting a section 388 petition to be the vehicle for its determination concerning R.N.'s guardianship.[7] However, the court did err in failing to offer Father the consideration required by section 366.3, subdivision (f). Section 366.3 is implicated not only by petitions to terminate a guardianship, but by petitions to modify a prior guardianship order by, among other things, appointment of a successor guardian. Section 366.3's express provisions embody the Legislature's policy determination that, when a change in a guardianship is made, the dependency court must provide notice to parents, consider and evaluate possible custody solutions, and consider whether to provide reunification services. (See also Cal. Rules of Court, rule 5.740(c) [no distinction between petitions to terminate or to modify a guardianship].)
Therefore, Father was entitled to participate, to be considered as R.N.'s guardian, and to be eligible to receive reunification services without the requirement that he file his own section 388 petition.[8] The dependency court erred in denying Father these rights.
*567 DISPOSITION
The orders of the superior court are reversed. The case is remanded for further proceedings consistent with section 366.3 and this opinion.
Woods, Acting P. J., and Jackson, J., concurred.
NOTES
[1] All statutory references herein are to the Welfare and Institutions Code.
[2] In the alternative, D. sought to have the matter transferred to Ventura County or to seek guardianship under the Probate Code.
[3] Apparently, R.N. and her grandparents had been living in Ventura County.
[4] We asked the parties to address at oral argument whether (1) a section 388 petition by the prospective new guardian was the proper procedural mechanism to bring this matter before the dependency court, and (2) Father was required to file an independent petition to contest the request for appointment of a new guardian.
[5] Section 366.4, subdivision (a) provides, "Any minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 is within the jurisdiction of the juvenile court. For those minors, Part 2 (commencing with Section 1500) of Division 4 of the Probate Code, relating to guardianship, shall not apply. If no specific provision of this code or the California Rules of Court is applicable, the provisions applicable to the administration of estates under Part 4 (commencing with Section 2100) of Division 4 of the Probate Code govern so far as they are applicable to like situations."
[6] Section 366.3, subdivision (b) provides in relevant part: "Prior to the hearing on a petition to terminate legal guardianship pursuant to this subdivision, the court shall order the county department of social services or welfare department having jurisdiction or jointly with the county department where the guardian and child currently reside to prepare a report, for the court's consideration, that shall include an evaluation of whether the child could safely remain in, or be returned to, the legal guardian's home, without terminating the legal guardianship, if services were provided to the child or legal guardian. If applicable, the report shall also identify recommended family maintenance or reunification services to maintain the legal guardianship and set forth a plan for providing those services. If the petition to terminate legal guardianship is granted, either juvenile court may resume dependency jurisdiction over the child, and may order the county department of social services or welfare department to develop a new permanent plan, which shall be presented to the court within 60 days of the termination. If no dependency jurisdiction has attached, the social worker shall make any investigation he or she deems necessary to determine whether the child may be within the jurisdiction of the juvenile court, as provided in Section 328.
"Unless the parental rights of the child's parent or parents have been terminated, they shall be notified that the legal guardianship has been revoked or terminated and shall be entitled to participate in the new permanency planning hearing. The court shall try to place the child in another permanent placement. At the hearing, the parents may be considered as custodians but the child shall not be returned to the parent or parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. The court may, if it is in the best interests of the child, order that reunification services again be provided to the parent or parents."
[7] As the Department conceded at oral argument, its request for a new section 366.26 hearing would also have been appropriate in these circumstances.
[8] Because we conclude that the court erred in refusing to consider Father's rights in the context of D.'s section 388 petition to appoint a new guardian, we need not address Father's own section 388 petition.
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4 N.Y.3d 800 (2005)
PEOPLE v. LEFFLER.
Court of Appeals of the State of New York.
February 25, 2005.
Application in criminal case for leave to appeal denied. (Rosenblatt, J.)
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70 Wn. App. 13 (1993)
851 P.2d 731
THE STATE OF WASHINGTON, Respondent,
v.
JOHN MICHAEL GLEASON, Appellant.
No. 11837-1-III.
The Court of Appeals of Washington, Division Three.
May 18, 1993.
Paul J. Wasson, for appellant.
Jeffrey C. Sullivan, Prosecuting Attorney, and Duane R. Knittle, Deputy, for respondent.
Katherine Steele Knox, amicus curiae.
McINTURFF, J.[*]
John Michael Gleason appeals his conviction of one count of possession of cocaine and one count of possession of marijuana. He contends the trial court erred in refusing to suppress evidence seized from him after he was illegally stopped by police.
At the suppression hearing, Officer Strother testified that on April 25, 1991, he was on patrol with Officer Tovar, a rookie officer who was in training. They drove by a Yakima apartment complex commonly referred to as "the cabins". He said the cabins were occupied by low income Hispanics and were plagued by a high incidence of illegal narcotics transactions. According to the officer, when Caucasians were on the premises, they usually were there to buy narcotics.
*15 Officer Strother said he observed a white male, casually dressed in clean clothes, clean shaven, and with clean-cut hair, walk out of the apartment complex. He told Officer Tovar that the man would be a good individual for him to stop and identify and if he did not live or work in the complex, he should warn him of the drug loitering law. The man was later identified as Mr. Gleason.
The officers made a U-turn in their patrol car, parked it, and got out. Mr. Gleason continued to walk on with his back to the officers. According to Officer Tovar, he walked toward Mr. Gleason, and called out, "[C]an I talk to you a minute?" The officer then asked him why he was there and demanded identification. Mr. Gleason produced a driver's license from his wallet. When he did this, Officer Strother said he saw a neatly folded piece of green paper in the palm of his hand and immediately recognized it as a bindle containing cocaine. Officer Strother grabbed Mr. Gleason by his shirt, grabbed his hand, and pulled the bindle out.
At the suppression hearing, Mr. Gleason disputed the officers' testimony. He said the officer grabbed him by the shoulder, spun him around, and asked for identification. He testified he had his fist closed at his side and the officer kept asking what was in his fist. He finally opened his hand, believing the officers would get it anyway.
The trial court resolved conflicts in the testimony in favor of the officers and determined there was no seizure when the officers first contacted Mr. Gleason. The court concluded the seizure occurred when the officer saw the bindle and asked what it was, and at that point, they had a well-founded suspicion that Mr. Gleason was involved in criminal activity. The motion to suppress was denied.
After a stipulated trial, the court found Mr. Gleason guilty of one count of possession of cocaine and one count of possession of marijuana. He was sentenced to 152 hours of community service. This appeal followed.
The dispositive issue is whether the officers' approach and inquiries constituted a seizure violating Fourth Amendment *16 interests. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).
Mr. Gleason contends the officers' first contact constituted an investigatory stop; that the facts do not support the trial court's finding of a reasonable, articulable suspicion of criminal behavior sufficient to justify the stop under Terry. He argues that the initial stop was based solely on his being a white male in a Hispanic neighborhood, and a person of any race being "out of place" in a particular area can never be used as a basis for suspecting criminal behavior. State v. Barber, 118 Wn.2d 335, 336, 823 P.2d 1068 (1992).
The State contends the initial contact by the officers amounted to a consensual encounter and neither probable cause nor a reasonable, articulable suspicion was required. State v. Mennegar, 114 Wn.2d 304, 310, 787 P.2d 1347 (1990). The State argues that Mr. Gleason voluntarily conversed with the officers, consented to show his identification, and inadvertently exposed the bindle of cocaine.
[1] Not all encounters between police officers and citizens are "seizures" of the person. Mennegar, at 309. For example, a police officer who, as part of his community caretaking function, approaches a citizen and asks questions limited to eliciting information necessary to perform that function has not "seized" the citizen. Mennegar, at 309. A "seizure" occurs when the circumstances surrounding the encounter demonstrate that a reasonable person would not feel free to disregard the officer and go about his business. California v. Hodari D., 499 U.S. 621, 627-28, 113 L.Ed.2d 690, 111 S.Ct. 1547 (1991); United States v. Mendenhall, 446 U.S. 544, 64 L.Ed.2d 497, 100 S.Ct. 1870 (1980). See also Mennegar, at 310. We must therefore determine whether, under these circumstances, Mr. Gleason reasonably believed he was not free to go.
[2] While the findings of the trial court following a suppression hearing are of great significance, the constitutional rights at issue require this court to undertake an independent evaluation of the record. State v. Rowe, 63 Wn. App. 750, 753, 822 P.2d 290 (1991).
*17 Officer Strother testified he first observed Mr. Gleason when he was leaving the apartment complex, walking westbound from the parking lot toward Tenth Street. The patrol car was traveling south on Tenth. The officers made a U-turn and by the time they were proceeding north on Tenth, Mr. Gleason had proceeded out onto Tenth and was walking south. Officer Tovar pulled the car onto a side street, parked and got out. He walked toward Mr. Gleason who was by then walking southbound away from him and with his back to him. The officer called out "[C]an I talk to you a minute?" He then began walking toward Mr. Gleason as Officer Strother got out of the patrol car. Mr. Gleason turned around. He stopped when Officer Tovar was within arm's length in front of him. At that point, the officer asked him why he was there and demanded identification.
[3] A person may be "seized" by a show of authority as well as by physical force. Mendenhall, at 554. Here, the testimony of the officers alone establishes that a seizure took place before Officer Strother saw the bindle of cocaine. A reasonable person in Mr. Gleason's position would have believed he was not free to disregard the officers and go about his business.
[4-6] A seizure is justified if the officer can point to specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity. Terry, at 21-22. See also United States v. Cortez, 449 U.S. 411, 417, 66 L.Ed.2d 621, 101 S.Ct. 690, 695 (1981); State v. Little, 116 Wn.2d 488, 495, 806 P.2d 749 (1991). The reasonableness of an officer's suspicion is determined by the totality of the circumstances known to the officer at the inception of the stop. Cortez, at 417; State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Racial incongruity, defined as a person of any race being allegedly "out of place" in a particular geographic area, is never a sufficient basis for forming a suspicion of criminal activity. State v. Barber, 118 Wn.2d 335, 347-48, 823 P.2d 1068 (1992).
*18 Here, eliminating any consideration of racial incongruity, there were no facts to support a legally justified and well-founded suspicion of criminal activity at the time the arresting officers stopped and questioned Mr. Gleason. Racial incongruity aside, the trial court only found that Mr. Gleason, dressed in clean casual clothes, was seen leaving an apartment complex where narcotics had been sold in the past. As in State v. Biegel, 57 Wn. App. 192, 787 P.2d 577, review denied, 115 Wn.2d 1004 (1990), this was the first time the defendant had been seen in the area, the officers did not know what occurred inside the apartment and neither officer saw him involved in the purchase of drugs. See also State v. Soto-Garcia, 68 Wn. App. 20, 841 P.2d 1271 (1992). Further, there was no evidence Mr. Gleason was acting suspiciously, he was not carrying any unusual objects, and the officers admitted there was no basis to arrest him for loitering. The officers' suspicion of criminal activity was based solely on Mr. Gleason's presence at an apartment complex where the tenants were primarily Hispanic.
Since Mr. Gleason was unlawfully seized before he was searched, the trial court erred in failing to grant his motion to suppress.
The judgment of the Superior Court is reversed; this case is remanded to that court for dismissal.
THOMPSON, A.C.J., and SCHULTHEIS, J. Pro Tem., concur.
NOTES
[*] Judge J. Ben McInturff is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.
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61 S.E.2d 102 (1950)
232 N.C. 362
WILSON
v.
MARTIN MEMORIAL HOSPITAL, Inc., et al.
No. 17.
Supreme Court of North Carolina.
September 20, 1950.
*104 John H. Blalock, Pilot Mountain, and Dallas C. Kirby, Danbury, for plaintiffappellant.
Folger & Folger, Mount Airy, for defendants-appellees.
DEVIN, Justice.
The judgment of nonsuit as to the defendant Martin Memorial Hospital, Inc., was properly entered, Smith v. Duke University, 219 N.C. 628, 14 S.E.2d 643; Penland v. French Broad Hospital, 199 N.C. 314, 154 S.E. 406, but a different question is presented by plaintiff's appeal from the judgment of nonsuit as to the individual defendants.
In reviewing the trial judge's ruling on the motion to nonsuit, the established rule requires that we consider the evidence offered on behalf of the plaintiff in the light most favorable for her, and that she is entitled to all reasonable inferences in her favor which properly may be drawn from the evidence.
Viewed in this light we think there was some evidence that the defendants Dr. Ashby and Dr. Telle failed to exercise due care in the treatment of the plaintiff, and that this proximately resulted in injury.
The plaintiff's evidence tends to show that Dr. Ashby, who had been engaged to treat the plaintiff professionally in her pregnancy and childbirth, was absent at the time she entered the hospital for her accouchement, and that he arranged for the plaintiff to be under the care of Dr. Telle, previously unknown to the plaintiff, who thereafter treated her. This would seem to permit the inference that Dr. Ashby thereby constituted Dr. Telle his agent for the performance of the necessary services to the plaintiff which he had contracted to render. Nash v. Royster, 189 N.C. 408, 127 S.E. 356.
It is the duty of a physician who has agreed to render professional services to a patient not only to use due care and diligence in his treatment of the patient, but he must exercise reasonable care to see that such attention is given as the case properly requires. A physician whose services are thus engaged undertakes that he possesses the requisite degree of learning, skill and ability necessary for the practice of his profession, such as others similarly situated ordinarily possess, and that he will exercise ordinary care and diligence in the use of his skill and in the application of his knowledge in the patient's case, and that he will use his best judgment in the treatment and care of the case entrusted to him.
*105 The physician is in no sense an insurer, nor is he infallible. Absolute accuracy in judgment and in practice is not required, nor may he be held responsible for the unsuccessful outcome of his treatment, unless it proximately result from the omission to use reasonable care and diligence under the circumstances, or from failure to use his best judgment in the treatment. It is required not only that he have that reasonable amount of knowledge and skill he holds himself out to possess, but also that he use it in the treatment of his patient. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Covington v. Wyatt, 196 N.C. 367, 145 S.E. 673; Covington v. James, 214 N.C. 71, 197 S.E. 701; Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; 41 A.J. 198, 201. "It has been repeatedly held here that the physician or surgeon who undertakes to treat a patient implies that he possesses the degree of professional learning, skill and ability which others similarly situated ordinarily possess; that he will exercise reasonable care and diligence in the application of his knowledge and skill to the patient's care; and exert his best judgment in the treatment and care of the case entrusted to him." Buckner v. Wheeldon, 225 N.C. 62(65), 33 S.E.2d 480, 483. Liability does not flow from the mere fact of an imperfect result. The physician may only be held responsible for an injury suffered by his patient when the injurious result flows proximately from his omission to exercise reasonable care and diligence in the application of his knowledge and skill to the treatment of his patient. Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485; Vann v. Harden, 187 Va. 555, 47 S.E.2d 314. It is not in all cases essential that plaintiff's assertion of claim for compensation for an injury alleged to have resulted from the failure of the physician to exercise due care in the treatment of his patient should be supported by expert testimony. When the evidence of lack of ordinary care is patent and such as to be within the comprehension of laymen, requiring only common knowledge and experience to understand and judge it, expert testimony is not required. Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Covington v. James, 214 N.C. 71, 197 S.E. 701; Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 141 A.L.R. 1, note; Cornwell v. Sleicher, 119 Wash. 573, 205 P. 1059; Connor v. O'Donnell, 230 Mass. 39, 119 N. E. 446.
In the case at bar there is some evidence from the testimony of the plaintiff and others as to statements made by Dr. Telle that he knew from the X-rays that the method used for the attempted delivery of the child was impracticable and would likely result in injury. He is reported to have said a Caesarean operation was imperative, and later that he was "handicapped" and unable to use his best judgment. There was also some evidence of failure to exercise ordinary care in the treatment of the serious lacerations resulting from the delivery of the child "from below", and failure to examine and discover the torn stitches and decomposed tissues. According to the testimony of Dr. Flippin she was "torn very badly", and she testified she remained in the hospital for more than a week thereafter, and was then permitted to leave without either of the defendants having made an examination. 141 A.L.R. 111 et seq. (Annotation).
Whether there was failure to exercise due care in these particulars and whether such failure was the proximate cause of the injury plaintiff complains of were matters for the jury under proper instructions from the court. Only plaintiff's evidence has been heard. There was no evidence that the defendants were lacking in professional learning or skill, but negligent failure to make such knowledge and skill available to the plaintiff constitutes her complaint. On another hearing defendants will have opportunity to present their defense to these allegations.
For the reasons herein set out the judgment of nonsuit as to defendant Hospital is affirmed, and judgment of nonsuit as to defendants Ashby and Telle is reversed.
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61 S.E.2d 192 (1950)
232 N.C. 407
FRIENDLY FINANCE CORPORATION
v.
QUINN.
No. 98.
Supreme Court of North Carolina.
September 27, 1950.
*194 Talmadge L. Narron, Wilson, for plaintiff-appellee.
Lucas & Rand and Z. Hardy Rose, all of Wilson, for defendant-appellant.
BARNHILL, Justice.
At common law a conditional sale contract is valid and effective even as against creditors and bona fide purchasers for value from the conditional vendee. Under the reservation of title in the vendor, no assignable title vests in the conditional vendee. 47 A.J. 42, 43, 110. Instead, it vests absolute title in the vendor and he is entitled to recover in replevin or trover from any purchaser from the vendee or other person in possession, Dunbar v. Rawles, 28 Ind. 225, 92 Am.Dec. 311, and, under the rule of comity recognized by most states, the contract is enforceable in any state in which the property may be found. Annotations Ann.Cas.1913C, 330, 12 L.R.A. 446.
In the absence of a registration statute or other modification of the common-law rule, a person is bound at his peril to take notice of the imperfections of his grantor's title. 45 A.J. 506.
However, our Legislature has modified the common-law rule in certain particulars. Under G.S. § 47-20, an unrecorded mortgage is not valid as against "creditors or purchasers for a valuable consideration from the donor, bargainor or mortgagor, but from the registration of such * * * mortgage in the county * * * where the donor, bargainor or mortgagor resides; or in case the donor, bargainor or mortgagor resides out of the state, then in the county where the said personal estate, or some part of the same, is situated". G.S. § 47-23 makes the provisions of this section applicable to conditional sales contracts. Under the provisions of these statutes a conditional sale contract will not be enforced in this State as against a creditor or purchaser for value from the conditional vendee, non constat the rule of comity, unless the same is recorded as in said sections provided. Universal C.I.T. Credit Corp. v. Walters, 230 N.C. 443, 53 S.E.2d 520, 10 A.L.R.2d 758.
In appraising these registration statutes, it must be noted that "registration affects the rights only of purchasers for value from, or creditors of, the mortgagor" or conditional vendee. As against them alone, the mortgage or conditional sale agreement is void until registered. Harris v. Seaboard Air Line R. Co., 190 N.C. 480, 130 S.E. 319, 322, 49 A.L.R. 1452; Montague Brothers v. Shepherd Co., 231 N.C. 551, 58 S.E.2d 118.
Except as thus modified, the common law is still in force in this State, G.S. § 4-1, Scholtens v. Scholtens, 230 N.C. 149, 52 S.E.2d 350, and in proper cases we observe the rule of comity.
So then, the question here posed for decision is this: Is the unrecorded conditional sale contract in question valid and enforceable in this State as against the defendant under the common law or is it void as against him by reason of the provisions of G.S. §§ 47-20, 47-23?
The judgment indicates the court below concluded that on the facts agreed the common-law rule is controlling. In this conclusion we are constrained to concur. *195 When the common-law rule and our modifying statutes are considered together as one complete whole, it is made to appear that the law in this State is this: The conditional vendor in a conditional sale contract (when such contract is properly recorded in the State of its execution, if registration is required by the law of that State. G.S. § 44-38.1) possesses a valid title to the property therein described, enforceable in this State without registration as against any one in possession except "creditors or purchasers for a valuable consideration" from the conditional vendee; that is, the title is valid as against all except those who deraign their title from the conditional vendee. 45 A.J. 509. They alone are the beneficiaries of the statute.
Our statutes protect the title conveyed by the mortgagor, G.S. § 47-20, or conditional vendee, G.S. § 47-23, as against unrecorded liens and conditional sales contracts. They go no further in the modification of the common-law rule. See, however, G.S. § 44-38.1, not applicable here.
Mere possession without proof that title was acquired, either directly or by mesne conveyances, from the mortgagor or conditional vendee is not sufficient to bring a claim within the purview of the language used in the Acts. Chandler v. Conabeer, 198 N.C. 757, 153 S.E. 313; Andrews Music Store v. Boone, 197 N.C. 174, 148 S.E. 39.
The defendant here is relying on the provisions of these statutes. He must show that he comes within their protective provisions. This he has failed to do. On this record it does not appear that Stewart, the conditional vendee, has ever attempted to convey title to the automobile in question. Nor does it appear that he has been or is now a resident of this State.
When the mortgagor or conditional vendee is a nonresident of this State, the situs of the property in this State is material when, and only when, the person in possession or claiming title thereto adverse to the conditional sale agreement deraigns title from the mortgagor or conditional vendee. Otherwise the statute is inapplicable. The common law is controlling.
The defendant also seeks to invoke the principle declared in the line of cases represented by Virginia-Carolina Joint Stock Land Bank v. Liles, 197 N.C. 413, 149 S.E. 377. But we are unable to perceive wherein the plaintiff has been guilty of such negligence as would invoke the application of that rule. Certainly it was not so stipulated or found by the court below.
It is not made to appear that Stewart, the conditional vendee, is a resident of this State or that he willingly parted with the title to or possession of the automobile. Even so, defendant asserts that if plaintiff had made diligent inquiry it would have ascertained the facts. Perhaps the same may be said of defendant. In any event, plaintiff owed no duty to third parties, volunteers, or strangers to its title, to exercise due diligence at the peril of forfeiting its rights.
In the final analysis the case presents one of those unfortunate transactions which are liable to happen in our complex commercial life. Both parties apparently have acted in good faith. Perhaps neither was as alert or careful as he might have been. One must lose. Who the victim is must be decided under the law as it now exists. Under the circumstances it is a hardship for either to suffer loss, but the law must prevail.
The judgment below is affirmed.
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61 S.E.2d 629 (1950)
KEENER
v.
REYNOLDS TRANSP. CO. et al.
No. C. C. No. 773.
Supreme Court of Appeals of West Virginia.
Submitted September 7, 1950.
Decided October 17, 1950.
Grover C. Belknap, Sutton, Hoover, Hoover & Bickel, Webster Springs, for plaintiff.
Claude H. Vencill, Summersville, for defendants.
GIVEN, Judge.
Questions arising in this action of trespass on the case were certified to this Court. by the Circuit Court of Nicholas County. *630 The action was instituted on the 16th day of March, 1950, against Reynolds Transportation Company, a Corporation, and Atlantic Greyhound Corporation. The plaintiff, Charles S. Keener, claims damages for personal injuries in the amount of $25,000.00, alleged to have resulted from the negligence of Wallace Ramsey, the driver of a Reynolds Transportation Company Bus, on which plaintiff was, at the time of the accident, a passenger for hire. It appears from the declaration that the plaintiff purchased a ticket from Atlantic Greyhound Corporation at its Charleston, West Virginia, office, and that the ticket entitled plaintiff to passage from Charleston, by way of Gauley Bridge, West Virginia, to Webster Springs, West Virginia. Buses of the Atlantic Greyhound Corporation do not pass through Webster Springs but by virtue of an arrangement between Atlantic Greyhound Corporation and Reynolds Transportation Company the plaintiff was to be transported from Gauley Bridge to Webster Springs by Reynolds Transportation Company. It was while a passenger on a bus of Reynolds Transportation Company, by virtue of the ticket so purchased, and while passing through Nicholas County, that plaintiff suffered the injuries complained of.
The declaration charges that the injuries occurred on the 1st day of June, 1948; that on the 15th day of March, 1949, the plaintiff instituted an action of trespass on the case, in the Circuit Court of Nicholas County, against Wallace Ramsey, Atlantic Greyhound Corporation and Reynolds Transportation Company for damages in the amount of $15,000.00 resulting from injuries received in the same accident; and that Reynolds Transportation Company and Atlantic Greyhound Corporation appeared specially in that action and moved that the returns of service of process against them be quashed, because of insufficiency thereof apparent upon the face of the returns. The court sustained the motion, over the protest of the plaintiff, and, on the 13th day of June, 1949, dismissed the action as to Atlantic Greyhound Corporation and Reynolds Transportation Company. The plaintiff at no time moved for the reinstatement of the action so dismissed, although three terms of court passed after the dismissal and before the institution of the present action. At the time of the institution of this action the plaintiff had failed to pay the costs adjudged against him by the order of dismissal. It may be observed that the first action was instituted against the three defendants within one year after the date of the injury, and that the second action was not instituted within one year after the injury, but was instituted within one year after the date of the dismissal. The first action remains pending as to the defendant Ramsey. No writ of error was taken from the judgment dismissing the first action as to Atlantic Greyhound Corporation and Reynolds Transportation Company.
The defendants Reynolds Transportation-Company and Atlantic Greyhound Corporation filed a joint and several demurrer to the declaration in the present action and a joint and several special plea. The plaintiff filed his demurrer and replication to the special plea. The trial court, on June 15, 1950, entered and order adjudging the declaration sufficient and overruling the demurrer thereto and sustaining the demurrer to the special plea. The action of the trial court in sustaining plaintiff's demurrer to the special plea is complained of here.
The principal contention of the defendants, as disclosed by the special plea, is that the present action is barred by the statute of limitations, the action not having been instituted within one year after the accident and, the parties not being the same, is not saved by the provisions of Code, 55-2-18, which reads: "If any action or suit commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action or suit commenced within due time, judgment or decree (or other and further proceedings) for the plaintiffs should be arrested or reversed on a ground which does not preclude a new action or suit for the same cause, or if there be occasion to bring a new action or suit by reason of such cause having been dismissed for want of security *631 for costs, or by reason of any other cause which could not be plead in bar of an action or suit, or of the loss or destruction of any of the papers or records in a former action or suit which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment or decree, or such loss or destruction, but not after."
The statute quoted has been considered and applied in a number of cases by this Court. Where the first action is voluntarily dismissed by the plaintiff the statute will not save the second action. McClung v. Tieche, 126 W.Va. 575, 29 S.E.2d 250. The dismissal of an action at rules because of the plaintiff's failure to file his declaration, notwithstanding his failure was due to a bona fide belief that the action was instituted prematurely, is a voluntary dismissal. Allen v. Burdette, 89 W.Va. 615, 109 S.E. 739; Lawrence v. Winifrede Coal Company, 48 W.Va. 139, 35 S.E. 925. An action dismissed because of a void summons is an involuntary dismissal. Ketterman v. Dry Fork R. Co., 48 W.Va. 606, 37 S.E. 683. An action erroneously dismissed on a plea in abatement is an involuntary dismissal. Ryan v. Piney Coal & Coke Co., 69 W.Va. 692, 73 S.E. 330. In Mylius v. Arnold, 99 W.Va. 341, 128 S.E. 740, the Court held, in Point 2 of the syllabus: "Plaintiff having instituted a suit in chancery within the period of limitation on a claim cognizable only at law, may, under section 19, c. 104, Code, before dismissal thereof for want of jurisdiction, bring an action at law in anticipation of such ruling."
In town of Clendenin ex rel. Thornton Fields v. Ledsome et al., 129 W.Va. 388, 40 S.E.2d 849, this Court held: "In order that the provisions of Code, 55-2-18, toll the running of the statute of limitations applicable to an action at law, it is necessary that the parties in interest in the pending action to which the statute of limitations would otherwise apply, be the same as those in the prior action involuntarily abated or dismissed."
The first action had been instituted against the Town of Clendenin only. The second action was against two individuals, neither of whom was a party to the first action. In this respect it will be observed that the Town of Clendenin case differs from the facts in the instant case. Reynolds Transportation Company and Atlantic Greyhound Corporation, defendants here, were defendants in the action dismissed. Therefore, the holding of the Court in the Town of Clendenin case, when applied to the facts therein, is clearly right, but is inapplicable to the instant case.
In the case of Siever v. Klots Throwing Company, 101 W.Va. 457, 132 S.E. 882, 883, the first action was dismissed for the reason "that an assignee of a cause of action arising out of tort can not sue in his own name, or join the same with an individual cause of action, though arising out of the same acts of negligence against the same defendant * * *." The second action instituted after the running of the statute of limitations was held to have been saved by Section 19 of Chapter 104 of the Code of 1923, now Code, 55-2-18, notwithstanding plaintiff sued in his own name in the first action and in his representative capacity in the second action.
In Bent v. Read, 82 W.Va. 680, 97 S.E. 286, the plaintiff, a judgment creditor of Read, instituted a creditors' suit against Read, naming the wife of Read as a defendant but making no allegations in the bill of complaint upon which any relief could be granted against the wife. The suit for several years was treated as a general creditors' suit against both Read and his wife but was eventually dismissed as to the wife, the court also dismissing from the suit a tract of land belonging to the wife. Assignees of several judgment liens against the wife instituted a second suit after the running of the statute of limitations but within one year after the dismissal of the first action. There were a number of parties to the first suit who were neither plaintiffs nor defendants to the second suit. Under these circumstances the court held that the second action was saved by the statute as *632 to the creditors of the wife who were treated as parties in the first suit, but not as to such creditors who were not parties to the first suit.
Our decisions are in agreement that the statute must be given a liberal or broad construction so as to save the second action where the dismissal was one included within the terms of the statute. In Tompkins v. Pacific Mut. Life Insurance Company, 53 W.Va. 479, at page 484, 44 S.E. 439, at page 441, Judge Poffenbarger, in speaking of this statute, said: "Our statute seems to be somewhat broader, or, to say the least, more positive and affirmative in the expression of the width of its scope, than any of the other statutes; for it says, "if there be occasion to bring a new suit by reason of the said cause having been dismissed * * or * * * any other cause, which could not be pleaded in bar of an action,' a new action may be brought within one year after the dismissal. It is a highly remedial statute, and ought to be liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one, who has brought his suit within the time limited by law, from loss of his right of action by reason of accident or inadvertence ; and it would be a narrow construction of that statute to say that, because a plaintiff had, by mistake, attempted to assert his right in a court having no jurisdiction, he is not entitled to the benefit of it. * * *" See also Bent v. Read, 82 W.Va. 680, 97 S.E. 286.
In Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683, 684, Judge Brannon said: "* * * The very object of the statute is to give further time for a second action when the first action is for any cause abortiveineffectual for recovery. No matter what was the cause of the first action's failure, no matter how bad the writ, no matter whether you call it void or voidable, it is all sufficient to save the second action. It is within the very reason of the statute. It is just the kind of a trouble for which the statute intended to save the second action. * * *"
From a review of these cases it would appear that the second action will be saved by the statute whenever the parties to the second action were also parties to the first action. Of course parties to the second action who were not parties to the first action cannot have the advantage given by the statute. Town of Clendenin v. Ledsome, supra. This seems to be the clear intent of the statute, for it is provided that if "one or more plaintiffs or defendants" to the action dismissed or the "plaintiffs * * should be * * * dismissed * * * for * * * any other cause which could not be plead in bar of an action or suit * * *", the second action will be saved if brought within one year after the dismissal. Here the first action was dismissed, over the protest of the plaintiff, and the parties defendant were parties to the first action, and the second action was instituted within the period of one year from the dismissal. We hold, therefore, that the second action may be maintained. We think it should be pointed out, however, that a different result might have been reached had the cause of action declared on not been joint and several.
We are of the opinion that there is no merit in the contention of defendants that the plaintiff had neglected and abandoned the original cause of action and that such neglect and abandonment estops him as to the prosecution of this action. As a basis for the contention the defendants argue that the claim for $25,000.00 made in the present action, instead of the $15,000.00 claim made in the first action, indicates such abandonment. We think not. The claim for damages in each case is upon the same cause of action. Neither was it neglect on the part of the plaintiff to have failed to have alias process issued in the first action. He had the right to have the court pass upon the sufficiency of the return of process, and he had no right to have such alias process issued after the returns were held insufficient, because of the hiatus that would have existed. See Dunaway v. Lord, 114 W.Va. 671, 173 S.E. 568. The defendants would further support their contention of neglect and abandonment from the fact that the plaintiff failed to have the dismissed action reinstated pursuant to the provisions of Code, 56-8-12.
*633 Assuming, but not deciding, that the action dismissed could have been reinstated under the statute, the plaintiff was not bound to move for reinstatement but could elect to institute a new action as permitted by Code, 55-2-18.
From these conclusions it is clear that the rulings of the Circuit Court of Nicholas County must be affirmed.
Rulings affirmed.
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632 F. Supp. 240 (1986)
BLOUNT FINANCIAL SERVICES, INC., et al., Plaintiffs,
v.
WALTER E. HELLER & COMPANY, et al., Defendants.
Civ. No. 3-85-679.
United States District Court, E.D. Tennessee, N.D.
February 25, 1986.
*241 Philip R. Russ, Amarillo, Tex., James D. Fox, Alcoa, Tenn., for plaintiffs.
L. Caesar Stair, III, Knoxville, Tenn., Rene A. Torrado, Jr., Daniel A. Edelman, Chicago, Ill., for Walter E. Heller & Co.
Morris W. Kizer, Frantz, McConnell & Seymour, Knoxville, Tenn., for Lowell Crabtree.
MEMORANDUM
JARVIS, District Judge.
This case came before the Court on December 3, 1985, for an oral hearing on defendants' motions to dismiss. Plaintiff was granted additional time to file an amended complaint to "specify with particularity those alleged facts relating to plaintiff's RICO, antitrust, fraud, and fiduciary duty claims." [Doc. 14]. Plaintiffs file an amended complaint [Doc. 15] and defendants renew their motions to dismiss. [Docs. 16, 17, 18].
Plaintiffs, David and Jean Aultom, BFS Finance, Inc. and Blount Financial Services, Inc. [BFS] operated as an industrial loan and thrift company in Maryville, Tennessee. After several years of operation, BFS and defendant Walter E. Heller & Company [Heller] entered a Re-Discount Financing Security Agreement on or about April 24, 1973. [Doc. 15, ¶¶ 12-13]. Heller agreed to make loans and advances to BFS against receivables. The Re-Discount Financing Security Agreement was amended on August 15, 1973; January 15, 1976; February 4, 1981; May 1, 1981; January 25, 1982. Heller was to make available operating capital for BFS in return for payments of interest in excess of the existing prime rate and Heller's assignment of consumer loans and related collateral. Under the Agreement, BFS was wholly dependent upon Heller for credit, but BFS could terminate the agreement on 60-days notice. From 1978 to 1982, Heller required increasingly burdensome actions by BFS to assure the flow of credit. This included increasing the number of open offices, approval of operating budgets by BFS, and sales of BFS' most valuable assets.
In June, 1982, defendant Crabtree was an officer of BFS. Heller and Crabtree conspired to assure that BFS would not timely file projections and reports required for the continuation of the Re-Discount Financing Agreement. Upon the default of BFS, Heller attached all of the receivables of BFS. The amended complaint alleges, "Heller and Crabtree further conspired during said period of time to set up a new business entitled Mountain Credit, Inc. ("Mountain") ... The assets of BFS were transferred to Mountain and Crabtree became the chief executive officer thereof." [Doc. 15, ¶ 32]. There is no allegation that Heller has any ownership interest in Mountain.
Defendants move to dismiss the federal antitrust and RICO claims as well as the state law fraud and personal injury claims. [Docs. 16, 17]. Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and movant is entitled to judgment as a matter of law; a court cannot make findings of disputed facts and must construe evidence together with all inferences to be drawn therefrom in a light most favorable to the party opposing the motion. Fed.R.Civ.P. 56; Quillen v. U.S. Postal Service, 564 F. Supp. 314 (D.C.Mich.1983).
I. Antitrust Claims
Plaintiff alleges violations of § 4 of the Clayton Act [15 U.S.C. § 15], violations of §§ 1 and 2 of the Sherman Act [15 U.S.C. §§ 1, 2], and § 2 of the Clayton Act, also *242 known as the Robinson-Patman Act [15 U.S.C. § 13]. [Doc. 15, ¶ 5]. Section 4 of the Clayton Act provides a private cause of action for "any person who shall be injured in his business or property by reasons of anything forbidden in the antitrust laws". 15 U.S.C. § 15. Section 4 of the Clayton Act does not state a cause of action in and of itself.
Section 1 of the Sherman Act makes illegal any conspiracy in restraint of trade: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U.S.C. § 1. To state a cause of action under § 1 of the Sherman Act, a plaintiff must establish (1) a combination or agreement between two or more persons or business entities to commit an unlawful act or to accomplish a lawful objective through unlawful means, (2) an intent to injure the plaintiff, (3) an absence of justification for the defendants' agreement in restraint of trade. Robinson v. Magovern, 521 F. Supp. 842, 926 (W.D. Pa.1981). Plaintiff fails to state a cause of action with regard to the second element of anti-competitive intent. There is no allegation that Heller has an ownership interest in the corporation which replaced plaintiff. Heller was not a competitor of BFS. Even if Heller did conspire to replace BFS with another competitor, there is no allegation that Heller thereby improved Heller's position vis-a-vis other suppliers of credit. The facts as alleged do not suggest an intent by Heller to affect competition within the consumer loan industry in eastern Tennessee. There is no lessening of competition among those institutions directly offering consumer loans to the public. One competitor, BFS, was merely replaced by another, Mountain. The antitrust laws protect competition not competitors. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977). Plaintiff fails to state a cause of action with regard to § 1 of the Sherman Act.
Section 2 of the Sherman Act provides, "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States or with foreign nations, shall be deemed guilty of a felony." 15 U.S.C. § 2. Section 2 of the Sherman Act can be regarded as supplementing § 1. Section 1 forbids particular categories of agreements because of their known tendency to produce the evils of monopoly, while § 2 outlaws any practice or arrangement, including those which might ordinarily be unobjectionable in themselves, if engaged in with the required unlawful purpose to monopolize. Standard Oil Co. v. United States, 221 U.S. 1, 60-62, 31 S. Ct. 502, 515-16, 55 L. Ed. 619 (1911); Antitrust 12 (L. Schwartz ed. 1983). The facts as alleged by plaintiff do not allow any reasonable inference that Heller's intent was to monopolize either at the level of suppliers of credit such as Heller or at the level of providers of consumer loans directly to the public such as BFS. Plaintiff has failed to state a cause of action under § 2 of the Sherman Act.
Section 2 of the Clayton Act, also known as the Robinson-Patman Act, provides:
It shall be unlawful for any person engaged in commerce ... to discriminate in price between different purchasers of commodities of like grade and quality ... where such commodities are sold for use, consumption, or resale within the United States ... and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination.
15 U.S.C. § 13. Although plaintiff conceded at the oral hearing held December 3, 1985 that he had no claim under the Robinson-Patman Act because the credit extended by Heller to BFS was not a commodity as defined by the Act, plaintiff again asserts this cause of action in ¶ 5 of the amended complaint. "Commodity" within *243 the meaning of this section is restricted to products, merchandise or other tangible goods. National Tire Wholesale, Inc. v. Washington Post Co., 441 F. Supp. 81, 84-85 (D.C.Cir.1977) (Newspaper advertising was not a commodity within the meaning of the Act. Even though printed paper is a tangible vehicle for the conveyance of ideas, the dominant nature of the transaction involves an intangible.). Plaintiff cited Fortner Enterprises v. U.S. Steel, 394 U.S. 495, 89 S. Ct. 1252, 22 L. Ed. 2d 495 (1968), for the proposition that credit may be a commodity within the meaning of the Robinson-Patman Act. [Doc. 10 at 14]. However, Fortner involved only §§ 1 and 2 of the Sherman Act and allegations that credit was illegally tied to the purchase of a tangible product, a prefabricated house. This Court finds plaintiff is bound by his earlier representation to this Court that he had no claim under Robinson-Patman and in the alternative finds that plaintiff has failed to state a cause of action regarding a commodity as defined by the Act.
II. RICO Violations
The amended complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act [RICO] under § 1962(a), (b), (c). [Doc. 15, ¶¶ 38-41].
The technically correct statute for plaintiffs' cause of action is 18 U.S.C. § 1964(c), which provides a private cause of action for "any person injured in his business or property by reason of a violation of Section 1962." 18 U.S.C. § 1964. Plaintiff must show: (1) a violation of § 1962, (2) direct injury to plaintiffs from such a violation, (3) damages sustained by plaintiffs. Wilcox Development Co. v. First Interstate Bank of Oregon, 97 F.R.D. 440 (D.C. Or.1983).
Section 1962(a) provides:
It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
18 U.S.C. § 1962(a). The racketeering activity alleged involves "acts and offenses which involves fraud, attempts to obtain money and property by false pretenses, attempts to collect an unlawful debt(s), the charging of usurious rates of interest, the breach of fiduciary duties owed by Heller and Crabtree to BFS and Aultom and others who have borrowed funds from Heller and of threats of economic coersion if BFS and others did not acceed to the unlawful demands of Heller in concert with its coconspirator Crabtree." [Doc. 15, ¶ 38].
RICO defines "racketeering activity" in 18 U.S.C. § 1961(1) by reference to specifically enumerated statutory criminal offenses. The only factual allegations which may fit within the definition of "racketeering activity" are the collection of an unlawful debt and mail fraud.
RICO defines "unlawful debt" as:
A debt (A) incurred or contracted in gambling activity ... or which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury and (B) which was incurred in connection with the business of gambling ... or the business of lending money or a thing of value at a rate usurious under State or Federal law, where the usurious rate is at least twice the enforceable rate.
18 U.S.C. § 1961(6). Plaintiffs' allegation that it was charged usurious rates is merely conclusory. Plaintiff does not specify the rates charged or the applicable usury statute. Defendants maintain that the Re-Discount Financing Security Agreement [Doc. 1, Exh. A, ¶ 9(c)] was to be governed by Illinois law. [Doc. 5 at 15]. Defendants maintain that the contractual choice of law is valid under Tennessee law and that Illinois law permitted a lender to charge any rate of interest on loans made to corporations under Ill.Ann.Stat., ch. 74, § 4(1)(a). Id.; cf. Smith v. Grundy County National *244 Bank, No. 84-C-9719, slip op. (N.D.Ill. July 17, 1985) [Available on WESTLAW, DCTU database] (Bank was not charging a usurious interest rate under Illinois law).
Plaintiffs also fail to state a cause of action for mail fraud under 18 U.S.C. § 1341. The essential elements of mail fraud are that defendant devised a scheme or artifice to defraud, use the mails, and either sent or received mail connected with the scheme. U.S. v. Dreer, 457 F.2d 31 (3rd Cir.1972). Plaintiffs have not alleged facts sufficient to state a cause of action for a fraudulent scheme. Even if Heller made representations about providing future credit which Heller eventually did not fulfill, plaintiffs have not alleged that such misrepresentations were intentional or with the intent to defraud.
Plaintiffs have failed to state a cause of action under §§ 1962(a), (b), (c) because the complaint and amended complaint fail to state a pattern of racketeering activity. Defendants' motions to dismiss the RICO claims are hereby GRANTED.
III. Conclusion
Plaintiffs have failed to state a cognizable federal claim under the antitrust or RICO statutes. Defendants' motions for summary judgment regarding the federal claims are hereby GRANTED. The statelaw claims are hereby DISMISSED for lack of an independent basis for federal jurisdiction. This case is hereby CLOSED.
Order accordingly.
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632 F. Supp. 122 (1985)
Charles A. JOHNSON and Lucille Johnson, h/w
v.
SUMMA CORPORATION d/b/a Desert Inn and Country Club and International Foundation of Employee Benefit Plans, Inc.
Civ. A. No. 84-2844.
United States District Court, E.D. Pennsylvania.
October 3, 1985.
*123 William Hildenbrand, Arthur L. Pressman, Philadelphia, Pa., for plaintiff.
Charles W. Craven, Francis E. Marshall, Philadelphia, Pa., for Summa Corp. d/b/a Desert Inn.
MEMORANDUM AND ORDER
DITTER, District Judge.
While attending an instructional program conducted by defendant International Foundation of Employee Benefit Plans (I.F. E.B.P.) and held at a hotel owned by Summa Corp. d/b/a Desert Inn and Country Club (Desert Inn), plaintiff Charles Johnson *124 allegedly fell on a sidewalk abutting the Desert Inn and injured his right hip. This action followed. Presently before me is the Desert Inn's motion to dismiss for lack of personal jurisdiction. For reasons that follow, this motion will be granted.
It is clear that once a jurisdictional defense has been properly raised, the plaintiff has the burden of demonstrating contacts with the forum state sufficient to give the court in personam jurisdiction. Compagnie de Bauxites de Guinee v. L'Union, 723 F.2d 357 (3d Cir.1983).
Rule 4(e) of the Federal Rules of Civil Procedure permits personal jurisdiction over a nonresident to the extent allowed under the law of the state in which the district court is held. The Pennsylvania long-arm jurisdiction provisions, 42 Pa. Cons.Stat.Ann. §§ 5301, 5322 (Purdon 1981) create a two-tiered approach for determining whether an out-of-state defendant may be subjected to the jurisdiction of a Pennsylvania tribunal. First, a Pennsylvania court may exercise jurisdiction over a corporation if the cause of action arose from the corporation's "transacting business" within the forum.[1]Id. § 5322(a)(1). Second, jurisdiction is proper if the corporation has been carrying on a systematic part of its general business within the Commonwealth. Id. § 5301(a)(2)(iii). The statute further provides that jurisdiction extends beyond the enumerated grounds to "the fullest extent allowed under the Constitution of the United States...." Id. § 5322(b). See Controlled Metal, Inc. v. Non-Ferrous International Corp., 410 F. Supp. 339 (E.D.Pa.1976); Hart v. McCollum, 249 Pa.Super. 267, 376 A.2d 644 (1979).
The Pennsylvania statutory scheme mirrors the approach mandated by the due process clause of the United States Constitution. Where the defendant's forum activities give rise to the plaintiff's claim for relief, the plaintiff need only show that defendant had "minimum contacts" with the forum. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). However, in situations where the plaintiff is pressing a non-forum related injury, in order to satisfy due process he must demonstrate that the defendant maintained "continuous and substantial" forum contacts. See Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984); International Shoe, 66 S.Ct. at 154; Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 541 (3d Cir. 1985); Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984).
Initially, therefore, I must determine whether the defendant's forum activities gave rise to the cause of action being asserted by the plaintiffs. Plaintiffs contend that the direct Pennsylvania contacts of Desert Inn, a Delaware corporation with its principal place of business in Nevada, consist of its maintenance of a toll-free number in the Philadelphia Yellow Pages, Mr. Johnson's receipt on February 28, 1985, of promotional material from Desert Inn, and the presence on March 27, 1984, of Desert Inn promotional advertising in a Philadelphia travel agency. Plaintiffs also rely on the Pennsylvania contacts of I.F.E.B.P., contending that I.F.E.B.P. acted as an "ostensible" or apparent agent of Desert Inn, and therefore I.F.E.B.P.'s contacts should be imputed to Desert Inn.
Plaintiffs' action does not arise from the Desert Inn's direct contacts with Pennsylvania. In determining whether the cause of action "arose from" a defendant's activities in the forum state, a court cannot *125 consider those contacts taking place after the date on which the alleged cause of action arose. Thus, this action, stemming from an alleged April, 1983, injury, could not have arisen from either the February, 1985 solicitation of Mr. Johnson or the March, 1984 presence of advertising material in Philadelphia. Similarly, I cannot conclude that the cause of action arose from Desert Inn's maintenance of a toll-free number because Mr. Johnson has not stated that he knew of the toll-free number or utilized it in any way in connection with his visit to the Desert Inn. See Busch v. Sea World, 95 F.R.D. 336, 340 (W.D.Pa. 1982). In fact, Mr. Johnson's affidavit provides that "[a]s a result of reading the materials contained in Exhibit `B', I decided to attend the Institute at the Desert Inn and Country Club in Las Vegas, Nevada." Affidavit of Charles Johnson ¶ 4. Plaintiffs have failed to show that the materials contained in Exhibit "B", copies of a mailing sent to Mr. Johnson apparently by I.F. E.B.P., were prepared or adopted in any way by Desert Inn.[2] Thus, Mr. Johnson's own affidavit undermines any theory that the cause of action arose from any Desert Inn promotional activity in Pennsylvania.
Plaintiffs' argument that the action arose from the contacts of I.F.E.B.P. and should be imputed to Desert Inn also fails to withstand scrutiny. Assuming that the contacts of an agent or apparent agent can be imputed to the principal, but c.f. Nissley v. J.L.G. Indus., Inc., 306 Pa.Super. 557, 452 A.2d 865, 868 (1982), plaintiffs have failed to demonstrate either an actual or apparent agency relationship.
In order to establish an agency, plaintiff would have to demonstrate the following: "`the manifestation by the principal that the agent shall act for him, the agent's acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.'" Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56 (1980) (quoting Restatement (Second) of Agency § 1(1) comment b (1958)). See also Goodway Marketing v. Faulkner Advertising Assocs., 545 F. Supp. 263, 266-67 (E.D.Pa.1982).
Plaintiffs contend that an actual agency arose from an agreement between I.F.E.B.P., which organizes instructional labor-management seminars, and Desert Inn, whereby Desert Inn agreed to provide its facility to I.F.E.B.P. for the seminar which Mr. Johnson attended. While reservations for the seminar were to be placed through I.F.E.B.P., the agreement is silent as to how I.F.E.B.P. was to go about soliciting attendees. The most obvious shortcoming in plaintiffs' theory is a total lack of control on the part of Desert Inn to direct I.F.E.B. P.'s solicitation for the seminar. As the element of control is the touchstone of a principal-agent relationship, I cannot find that an actual agency relationship was created. See, e.g., Kelly v. U.S. Steel Corp., 170 F. Supp. 649 (W.D.Pa.1959).
Plaintiffs also contend that there was an apparent or "ostensible" agency relationship between I.F.E.B.P. and the Desert Inn. The test for determining whether "an agent possesses apparent authority is whether `a man of ordinary prudence, diligence and discretion would have a right to believe that the agent possessed the authority he purported to exercise.'" Universal Computer Systems, Inc. v. Medical Servs. Ass'n, 628 F.2d 820, 823 (3d Cir. 1980) (quoting Apex Fin. Corp. v. Decker, 245 Pa.Super. 439, 369 A.2d 483, 485-86 (1976)).
In determining whether the reasonable man would have the right to believe in the existence of an agency relationship, the proper focus is on the conduct of the alleged principal and not the agent. William B. Tanner Co. v. WIOO, Inc., 528 F.2d 262, 266 (3d Cir.1975); Revere Press, *126 Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407, 410 (1968). Plaintiffs have failed to offer any evidence of action or inaction on the part of Desert Inn which would allow someone to infer the existence of an agency. I thus cannot conclude that a reasonable person could believe that I.F.E.B.P. acted as an agent for Desert Inn.
Because the record shows that the cause of action could not have arisen from either the direct or indirect Pennsylvania contacts of Desert Inn, plaintiffs must show that the Desert Inn has had continuous and substantial contact with this forum. Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984); Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir.1984).
The contacts consist of the maintenance of a toll-free number, the mailing of a brochure to plaintiff, and the presence of promotional materials at a Philadelphia travel agency. Extensive advertising efforts in combination with the maintenance of a toll-free number can rise to a continuous and substantial level. Garfield v. Homowack Lodge, Inc., 249 Pa.Super. 392, 378 A.2d 351 (1977). In Homowack Lodge, the defendant, a New York resort lodge, had advertised for five years in a weekly Philadelphia newspaper, at an annual cost of $2,000. It also maintained a toll-free number for Philadelphia-area residents to make reservations. Finally, the lodge provided brochures to Philadelphia travel agents and paid those agents a ten percent fee for customers they referred. Id. at 353. The Superior Court held these activities to be continuous and substantial within the meaning of International Shoe, and affirmed the trial court's exercise of in personam jurisdiction.
In order for a defendant's forum activities to be considered continuous and substantial, however, they must be "extensive and pervasive." Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982). See also Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 541-44 (3d Cir.1985). The maintenance of a toll-free number, the presence of brochures in one travel agency with no information about commissions or referrals, and a single mailing can hardly be considered "extensive and pervasive." Plaintiffs want me to infer from Mr. Johnson's post-visit receipt of Desert Inn promotional material a general practice on the part of that defendant to solicit past visitors, many of whom presumably reside in this forum. While this may indeed be the case, I must base a decision as to the permissibility of exercising personal jurisdiction on evidence placed in the record and may not simply speculate. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66-67 n. 9 (3d Cir.1984); Simkins Corp. v. Gourmet Resources Int'l, Inc., 601 F. Supp. 1336, 1339 (E.D.Pa.1985). The parties have been given a more than generous period of time in which to pursue discovery and I am unwilling to again open discovery on the existence of such a general practice and withhold decision on the motion.
NOTES
[1] "Transacting business" for purposes of section 5322 includes the following:
(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
(ii) the doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
. . . . .
42 Pa.Cons.Stat.Ann. § 5322(a)(1) (Purdon 1981).
[2] In connection with another motion filed in this case, Mr. Johnson contended that I.F.E.B.P., at some unknown time, sent him a Desert Inn brochure. See Exhibit "B" to plaintiffs' amended civil complaint. Because this brochure has not been linked to the mailing that Mr. Johnson stated induced him to attend the institute, I cannot consider whether the cause of action arose from this contact.
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632 F. Supp. 691 (1986)
UNITED STATES of America, Plaintiff,
v.
Roy A. PENN, Government of the Virgin Islands, Arnold Golden, Commissioner of Public Works Department, Defendants.
Civ. No. 1981/41.
District Court, Virgin Islands, D. St. Thomas and St. John.
April 17, 1986.
*692 Dorothy R. Burakreis, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., James S. Carroll, III, Asst. U.S. Atty., St. Thomas, V.I., for plaintiff.
John W. Stryker, Birch, deJongh & Farrelly, St. Thomas, V.I., for defendant Roy A. Penn.
Rosalie Simmonds Ballentine, Asst. Atty. Gen., St. Thomas, V.I., for defendant Government of the Virgin Islands.
DAVID V. O'BRIEN, District Judge.
The question before us is whether the defendant may counterclaim against the United States for affirmative injunctive relief. We hold that sovereign immunity proscribes such a claim.
I. FACTS
In June, 1960, the United States acquired approximately 164 acres on the island of St. John. The tract formerly comprised Estate Great Cinnamon Bay and is now the site of the Virgin Islands National Park. The defendant, Roy A. Penn, owns Estate Miland, which adjoins the park at its east border.
This controversy arose out of improvements made in 1973 by the Government on the section of St. John's North Shore Road intersecting the park and Estate Miland. Penn alleges that the construction resulted in three types of damage to his property. First, he claims that the road was widened and now encroaches on Estate Miland. It also diverts erosive surface waters onto his property. Finally, Penn contends that vegetation and ancient structures covering his land were destroyed during the construction. One casualty of the Government bulldozer was a Danish wall which Penn claims marked the border between Miland and the park in the 1905 survey which both parties maintain depict the extent of their respective properties.
As a result of these purported injuries, Penn sued the Government in District Court and filed an administrative claim with the Department of the Interior in 1975. Both actions rested on tort theories and were dismissed due to noncompliance with the Federal Tort Claims Act.
Finally, with the park's boundary still in dispute, the Government brought this suit to quiet title.[1] Penn counterclaimed to vest title in himself and for an injunction compelling *693 the restoration of the western border of his land. The Government now moves to dismiss the latter claim pursuant to Fed.R.Civ.P. 12(b)(6) and for summary judgment on the title issue.
II. DISCUSSION
A. Summary Judgment
The heart of the parties' title claims is the location of the Miland-park border. While the parties agree that the description in the 1905 survey controls, the boundary issue is clearly the key to determining ownership of the disputed land. Their conflicting versions as to its location presents a factual dispute which defeats the Government's motion for summary judgment.
B. The Motion to Dismiss
As a sovereign, the United States is immune from suit and it can be sued only in matters where Congress has waived this immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769-70, 85 L. Ed. 1058 (1941); United States v. Shaw, 309 U.S. 495, 503, 60 S. Ct. 659, 662, 84 L. Ed. 888 (1940). The terms of this waiver define our jurisdiction to entertain the suit. Sherwood, supra at 586, 61 S. Ct. at 769-70.
This rule applies with equal force to counterclaims. Shaw, supra at 503, 60 S. Ct. at 662. But unlike plaintiffs, counterclaimants are not limited strictly to claims based on express statutory waivers. They may also seek recoupment and set-off against the Government, provided the claim arises out of the same transaction or occurrence as the main suit and the relief sought neither exceeds nor is different in kind from that demanded by the Sovereign. United States v. 2,116 Boxes of Boned Beef, Weighing Approximately 154,121 Pounds, 726 F.2d 1481, 1496 (10th Cir. 1984), cert. denied Jarboe-Lackey Feedlots, Inc. v. United States, ___ U.S. ___, 105 S. Ct. 105, 83 L. Ed. 2d 49 (1984); Frederick v. United States, 386 F.2d 481, 488 (5th Cir.1967); In re Oxford Marketing, Ltd., 444 F. Supp. 399, 403 (N.D.Ill.1978); 6 Wright & Miller, Federal Practice and Procedure, § 1427 (1971). Affirmative recovery, however, requires waiver. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-15, 60 S. Ct. 653, 656-58, 84 L. Ed. 894 (1940). Thus, the only claims Penn may assert here are compulsory counterclaims aimed toward defeating or diminishing the Government's recovery or else rest on an independent waiver of sovereign immunity.
1. Penn's request to quiet title
Congress has explicitly waived sovereign immunity with respect to actions to quiet title. 28 U.S.C. § 2409a(a). See United States v. Drinkwater, 434 F. Supp. 457, 461 (E.D.Va.1977). Penn restates this claim in his request to enjoin the United States from future trespasses. It is axiomatic that if title is quieted in Penn's favor, the Government has no right to possession or use of the land. We hold, therefore, that jurisdiction is established over this aspect of Penn's counterclaim.
2. Penn's action to compel restoration of the land to its original condition
There is no statutory waiver with respect to actions for injunctive relief. E.g., Drinkwater, supra at 461; United States v. Gregory Park, Section II, Inc., 373 F. Supp. 317, 350-52 (D.N.J.1974). Consequently, we are without jurisdiction to hear a claim for affirmative relief. United States Fidelity, supra 309 U.S. at 512-15, 60 S. Ct. at 656-68. We find, however, that this action relates sufficiently to the subject matter of the Government's claim to give us jurisdiction if the relief requested by Penn is for recoupment or set-off.
Recoupment involves a claim which defeats the Government's action. United States v. Summ, 282 F. Supp. 628, 631 (D.N.J.1968). Set-off concerns fungible obligations that offset each other. United States v. Thurber, 376 F. Supp. 670, 674 (D.Vt.1974).
*694 The object of the Government's suit is to settle a title dispute. Penn's request for injunctive relief is qualitatively different because it seeks a remedy beyond that demanded by the United States, namely restoration of the land. It is, therefore, the type of compulsory counterclaim over which jurisdiction can be established solely through a specific waiver of sovereign immunity. Drinkwater, supra at 461; Gregory Park, supra at 351. Consequently, this aspect of the counterclaim must be dismissed.
The Government also contends that Penn's claim for affirmative relief is barred under the doctrine of res judicata because Penn's 1975 actions sought essentially the same relief and were dismissed with prejudice. Our finding of sovereign immunity, however, obviates the need to address this issue.
III. CONCLUSION
Sovereign immunity proscribes Penn's counterclaim for affirmative injunctive relief. Consequently, we must grant the Government's motion to dismiss. However, we deny the Government's motion for summary judgment.
NOTES
[1] The United States also joined the Government of the Virgin Islands as a defendant to determine the maximum allowable width of a road. This dispute is unrelated to issue before us here.
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228 N.J. Super. 135 (1988)
549 A.2d 62
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON BAKER, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PERRY SIMMONS, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted September 21, 1988.
Decided October 17, 1988.
*137 Before Judges BRODY and SKILLMAN.
Alfred A. Slocum, Public Defender, attorney for appellants (Edward I. Davis, Designated Counsel for Leon Baker, of counsel and on the brief; Catherine M. Langlois, Designated Counsel for Perry Simmons, of counsel and on the brief).
W. Cary Edwards, Attorney General, attorney for respondent in Docket No. A-4795-86T4 (Meredith A. Cote', Deputy Attorney General, of counsel and on the brief).
*138 James W. Holzapfel, Ocean County Prosecutor, attorney for respondent in Docket No. A-5661-86T4 (Samuel J. Marzarella, Assistant County Prosecutor, of counsel).
The opinion of the court was delivered by BRODY, J.A.D.
We now consolidate the separate appeals of co-defendants Baker and Simmons who were each found guilty by a jury of possession of heroin contrary to N.J.S.A. 24:21-20(a)(1), and sentenced to a four-year prison term. We reverse both convictions because the trial judge erroneously admitted critical hearsay evidence of defendants' guilt.
Soon after receiving a telephone tip from an informer, police in unmarked cars and wearing plain clothes stopped a car owned and operated by Lee Siegel in which defendants Baker and Simmons were passengers. Baker was sitting in the front seat. Simmons was in the back seat. All three were arrested.
Siegel thereafter consented to a full search of his car. One of the searching officers noticed that there were "scratch" marks on the heads of the upper four of six Phillips screws that held in place a plastic panel covering the rear of the back of the front passenger seat. When he also noticed that the two uppermost screws were not as neatly set into the panel as the others, he removed the four upper screws and pulled the top of the panel away from the back of the seat. Behind the panel he saw an open bag that contained 45 small packets of heroin. A police officer testified that a bag of that kind usually contains 50 packets when sold, each packet costing about $20.
Siegel died of a drug overdose several months before trial. He was the informer who had tipped off the police. A few days before he provided the tip leading to defendants' arrest, Siegel had been arrested while attempting to break into a store. In an effort to gain consideration in the disposition of that case, he offered to furnish the police with evidence that would incriminate defendants who he said were supplying him with heroin to satisfy his six-packets-a-day habit.
*139 Defendants did not testify. Their lawyers argued to the jury that the State had failed to prove that defendants had knowledge of the hidden heroin, much less that they possessed it. They contended that the evidence supported the conclusion that Siegel alone possessed the heroin to satisfy his heavy habit.
The assistant prosecutor overcame the handicap of not having Siegel's testimony by calling as a witness a police officer who testified that Siegel was the informer who had provided the telephone tip that led to defendants' arrest. When defendants objected that the testimony was in effect inadmissible hearsay, the trial judge did not appreciate the hearsay implications of identifying Siegel as the informer. He ruled that once the officer testified that he recognized Siegel's voice on the telephone, the officer was competent to testify that Siegel was the caller so long as he did not disclose any statements that Siegel made which incriminated defendants.
We agree with defendants that when the police witness identified the owner and operator of the car as the source of the tip, he in effect advised the jury that Siegel had told him that defendants knowingly possessed the heroin hidden in the car. The inference is irresistible that Siegel tipped off the police to advise them of defendants' criminal conduct and not just his own. Although Siegel's incriminating hearsay statement was placed before the jury by inference, its impact was essentially the same as it would have been had Siegel's words been quoted directly.
We base our analysis on State v. Bankston, 63 N.J. 263 (1973). The court there noted that the hearsay rule does not bar a police witness from testifying that he approached a suspect or went to the scene of a crime "upon information received" where the evidence is not offered to prove that the information received was true but only that "the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Id. at 268. There is seldom any justification for *140 admitting such evidence where the defendant does not claim that the police acted arbitrarily in approaching him.
In the instant case there was no need for any reference to an informer or to explain that the police were looking for a person described by the clothing [the jury could have inferred the informer said] he was wearing. There was no allegation that the police were acting arbitrarily. [Id. at 272.]
Where the only reason for referring to a tip is to place before the trier of fact, directly or indirectly, the truth of an informer's incriminating statement, the evidence is inadmissible hearsay and also violates the defendant's Sixth Amendment right to confront the informer. Id. at 269; State v. Thomas, 168 N.J. Super. 10, 15 (App.Div. 1979).
Bankston also makes it clear that evidence from which the content of a tip may be inferred is as inadmissible as the tip itself.
Although in the present case the police officers never specifically repeated what the informer had told them, the inescapable inference from [Detective] Genzone's testimony was that the informer had given information that defendant would have narcotics in his possession. Thus the jury was led to believe that an unidentified informer, who was not present in court and not subjected to cross-examination, had told the officers that defendant was committing a crime. The testimony was clearly hearsay. [State v. Bankston, 63 N.J. at 271.]
See also State v. Bowens, 219 N.J. Super. 290, 299-300 (App. Div. 1987).
The import of the officer's testimony here was not simply to identify Siegel as the informer. The fact that Siegel was the informer formed the basis for a reasonable but inadmissible inference that he gave the police a statement that incriminated defendants.
The final question to be answered where evidence was erroneously admitted in a criminal trial usually is whether to reverse the conviction and remand for a new trial. The answer to that question turns on whether the error was harmless considering the other evidence of guilt. "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963), quoted with approval in Bankston, 63 *141 N.J. at 273. Cf. State v. Douglas, 204 N.J. Super. 265, 274 (App.Div. 1985), certif. den. 102 N.J. 378 (1985) (where we affirmed the conviction because "[t]here was substantial credible evidence upon which the jury could predicate its finding of guilt without any hearsay testimony").
Here, aside from the inadmissible hearsay, the State merely presented evidence that (1) defendants were passengers in a car owned and operated by a person who consumed 6 packets of heroin a day to satisfy his addiction; (2) a bag containing 45 packets of heroin had been secreted inside the back of the front passenger seat of the car, and (3) the 50 packets that the bag had originally contained would have supplied the personal needs of the owner and operator of the car for 8 days. These facts are not "substantial" evidence that defendants knew that the heroin was hidden in the car and that they had the intention and capability of exercising control over it, the essential elements of the possession crime. State v. Brown, 80 N.J. 587, 597 (1979).
Indeed, without the hearsay there was insufficient evidence to support a conviction. State v. Reyes, 50 N.J. 454, 458-459 (1967). Criminal possession of CDS may not be inferred from mere presence in a car where the CDS has been hidden. State v. Shipp, 216 N.J. Super. 662, 665 (App.Div. 1987).
In answer to defendant Simmons's brief, the county prosecutor contends that there is the following incriminating evidence besides the presence of Simmons in the car:
Here the jury had evidence before them that when the automobile was stopped, defendant Perry Simmons was sitting in the back seat directly behind, and with access to, the right front passenger bucket seat where the forty-five (45) individually wrapped packets of heroin valued at $20.00 per packet were found by the officers. The screws on the panel of the passenger bucket seat were loose, and scratched, and a knife was found on the floor beneath where defendant Perry Simmons had been sitting.
The prosecutor does not suggest how the foregoing evidence points to Simmons's guilt. At trial the State unsuccessfully offered to prove that Simmons was not seated behind Baker but *142 was lying down on the back seat because he was under the influence of drugs. The prosecutor told the jury in his summation that he was not suggesting that Simmons had used the blade of a folded penknife found on the floor behind the front passenger seat to loosen the Phillips screws. The officer who testified about the "scratches" on the screw heads and the condition of the knife blade acknowledged that it would be mere "conjecture" to infer that Simmons had used the knife to loosen and tighten the screws. There is no evidence that the screws were "loose" when the car was stopped.
In answer to defendant Baker's brief the Attorney General contends that there is the following incriminating evidence besides the presence of Baker in the car:
... It is evident that at some point the screws fastening the back seat panel had to have been removed in order for the heroin to have been placed in the seat. The fact of their removal was further evidenced by their protrusion from their proper setting as well as the scratch marks themselves. Furthermore, Detective Addison testified that when the heroin packets were opened for field testing, the heroin was still fresh, indicating it had been recently placed in the vehicle. The knife itself had scratches and bits chipped off near its tip, clearly indicating it had been used either improperly or on a very hard surface. Finally, the knife was located directly below the panel where the screws had been removed.
There is some evidence that the knife blade had barely perceptible marks suggesting that it could have been used to loosen and tighten the Phillips screws, but there is no evidence of significant "bits chipped off near its tip." Moreover, as previously noted, the assistant prosecutor expressly told the jury that he was not suggesting that Simmons had used the knife to loosen the screws. There was no evidence of how long heroin retains its freshness. Besides, one cannot infer that defendants knew of the hidden heroin from the fact that it was "fresh."
We distinguish State v. Palacio, 111 N.J. 543 (1988), where the majority of the court held in a similar case that the evidence of criminal possession was sufficient to convict. Evidence of possession present there, but not present here, included the fact that the CDS was a large amount of pure cocaine worth almost a million dollars. The majority of the court inferred from that *143 evidence that the owner and operator of the car was a "smuggler" and further inferred from that inference that he would not have taken on a passenger unless he was privy to the presence of such a valuable hidden cargo. Here the hidden heroin was little more than the owner and operator's weekly supply, worth $900. One cannot infer therefrom that he was a smuggler, or that the cargo was so valuable that he would not have taken on passengers unless they not only knew it was there but also possessed it.
The Palacio majority noted additional evidence of the passenger's guilt: after the arrest he spoke Spanish to the driver (inferentially to keep the substance of his remarks from the police) while the police were searching the car, he refused to answer police officers' questions, he watched the search with intense interest, he was nervous in the presence of the police, he was a close friend of the driver's and had been driving with him a long distance. There is no evidence of such facts here.
Ordinarily where an appellate court rules in a criminal case that the admission of incriminating evidence was reversible error, the court remands the matter for retrial even if, as here, the remaining evidence produced at trial was insufficient to convict. State v. Menke, 25 N.J. 66, 72 (1957). This practice recognizes that the State may have additional evidence that it did not produce in reliance upon the strength of the erroneously admitted evidence. We recently held that a retrial in such circumstances does not place the defendant in double jeopardy. State v. Williams, 226 N.J. Super. 94, 104-109 (App.Div. 1988).
However, where it appears from the record that the State produced all available significant evidence at trial and the State does not suggest that it has more, an appellate court should remand for the entry of a judgment of acquittal. State v. Croland, 31 N.J. 380, 384 (1960). That is the case here. The State's evidence against these defendants was buried with Siegel. In his summation the assistant prosecutor repeatedly emphasized that defendants' guilt was inferable from the fact *144 that Siegel was the informer. Deprived of that inference, the State has no case.
Defendants' convictions are reversed and the matter remanded for the purpose of entering judgments of acquittal.
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632 F. Supp. 435 (1986)
Wilburt SALES, Jr., and Janice T. Sales, Plaintiffs,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
Civ. A. No. C 84-715 A.
United States District Court, N.D. Georgia, Atlanta Division.
March 28, 1986.
*436 Richard W. Hendrix, Finch, McCranie, Brown & Thrash, Atlanta, Ga., for plaintiffs.
Clayton H. Farnham and H. Michael Bagley, Drew, Eckl & Farnham, Atlanta, Ga., for defendant.
ORDER
VINING, District Judge.
In this action on an insurance policy, the plaintiffs have moved to amend the pretrial order, to reconsider this court's order dated January 13, 1986, denying their motion in limine, and to compel.
The motion to amend the pretrial order was filed over a year after the close of discovery and after the initial pretrial order was submitted on November 20, 1984. Furthermore, this case has already been continued on the trial calendar twice. The court finds that the motion amend the pretrial order is untimely and is, therefore, DENIED.
The plaintiffs' motion to compel certain discovery was filed after the close of discovery. Consequently, the motion is DENIED.
In initially denying the plaintiffs' motion in limine, the court noted that it was without prejudice to the right of the plaintiffs to object to the introduction of the evidence at trial if a proper foundation is not laid. The fact that counsel's strategy with respect to his opening statement might change depending upon whether such evidence is ultimately admitted is an insufficient basis for this court to reconsider its earlier order. Furthermore, a ruling at this point with respect to the admissibility of the evidence would be of little aid to the plaintiffs' counsel in planning his strategy if circumstances at trial change so that evidence held inadmissible at this point became admissible during the trial because of actions taken at trial. This is because an order ruling on a motion in limine is basically an advisory opinion subject to change as events at trial unfold. See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir.1985).
One issue raised in the plaintiffs' motion to reconsider merits discussion at this time, however. One of the defenses raised by the defendant in this case is that the plaintiffs' material misrepresentations voided the policy. The plaintiffs contend that since the defendant mailed a premium notice to them after the alleged misrepresentations had been made this defense has been waived, citing State Farm Fire & Casualty Co. v. Jenkins, 167 Ga.App. 4, 305 S.E.2d 801 (1983). Jenkins held that the demand for payment of a future premium subsequent to the breach of a condition which would have entitled the insuror to insist upon a forfeiture of the contract would be held to be a waiver of the forfeiture and that such waiver would occur even if the insured did not actually pay the renewal premium. The holding in Jenkins is in direct conflict with the holding of the Georgia Supreme Court in Sullivan v. Connecticut Indemnity Association, 101 Ga. 809, 810, 29 S.E. 41 (1897):
If, in any event, the fact that such a demand was made could be treated as a waiver, this certainly ought not to be done when payment was refused. To *437 hold otherwise, it seems to us, would be going contrary to the plainest principles of right and justice. At most, it could only be fairly said that the association had offered to waive the conditions expressed in the policy, and that the insured had declined to accept the offer.
Under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), this court must apply the substantive law of the state of Georgia and in determining the law of the state must follow the decisions of Georgia's highest court. Flintkote Co. v. Dravo Corp., 678 F.2d 942 (11th Cir.1982). Consequently, this court must follow Sullivan, not Jenkins.
In summary, the plaintiffs' motions to amend the pretrial order, for reconsideration, and to compel are DENIED.
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632 F. Supp. 701 (1986)
Gary BEAULIEU, Plaintiff,
v.
ELECTRONIC BUSINESS SYSTEMS and Computone Systems, Inc., Defendant.
Civil No. 85-0235 P.
United States District Court, D. Maine.
April 18, 1986.
*702 Stephen C. Whiting, Hewes Douglas Whiting & Quinn, Portland, Me., for plaintiff.
Kevin F. Gordon, Jeffrey M. White, Pierce Atwood Scribner, Allen Smith & Lancaster, Christine A. Murphy, Black & Hopkinson, Ralph A. Dyer, Portland, Me., for defendant.
ORDER
GENE CARTER, District Judge.
Presently before the Court is Defendant Computone Systems' ("Computone") Motion for Dismissal pursuant to Rule 12(b)(2), based upon its assertion that the Court's exercise of personal jurisdiction over Computone is prohibited by the Due Process clause of the Maine Constitution and the United States Constitution. The Court finds that exercise of personal jurisdiction is proper and, therefore, the Motion to Dismiss is DENIED.
At the outset, the Court notes that subject matter-jurisdiction in this case is based on 28 U.S.C. § 1331, which provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Counts VI, VII, XIV, XVIII and XXVII of the Complaint and Amended Complaint state claims under federal antitrust laws, 15 U.S.C. § 1 et seq., and Count XXIX states a claim under the federal Magnuson-Moss Act, 15 U.S.C. § 2301 et seq. Jurisdiction over the remaining state law claims is based upon principles of pendent jurisdiction.
The principal cases relied upon by Computone in support of its Motion to Dismiss are diversity actions, in which a federal court looks to state law to determine the proper scope of personal jurisdiction. See, e.g., Jones v. North American Aerodynamics, Inc., 594 F. Supp. 657 (D.Me.1984). Since "the limits of personal jurisdiction under Maine law are coextensive with federal due process requirements" id. at 657, the "minimum contacts" standard set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) and refined in its considerable progeny is the appropriate test for determining the limit of personal jurisdiction in diversity cases. As pointed out in Wass v. American Safety Equipment Corp., 573 F. Supp. 39 (D.Me.1983), the primary purposes of the "minimum contacts" requirement are "the protection of defendants from `the burdens of litigating in a distant or inconvenient forum ... [and] ensur[ing] that States, through their courts, do not reach out beyond the limits imposed on them by their states as coequal sovereigns in a federal system.'" Id. at 42 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490 (1980)). This second purpose implies that the analysis for the proper exercise of personal jurisdiction would be different in federal question cases than in diversity cases. Indeed, "as part of a national system of courts a federal district court considering a case that arises under federal *703 law is not subject to precisely the same due process limitations which restrict its reach in diversity cases." Handley v. Indiana & Michigan Elec. Co., 732 F.2d 1265 (6th Cir.1984).
As a practical matter, personal jurisdiction of the federal courts in federal cases is determined by the scope of service of process. Terry v. Raymond Intern., Inc., 658 F.2d 398, 402 (5th Cir.1981). There is disagreement among the courts and commentators over precisely what the limitations on personal jurisdiction are in a federal question case where the federal statute creating a substantive right contains no process provisions. See e.g., Handley v. Indiana & Michigan Elec. Co., supra; Terry v. Raymond Intern., Inc., supra. However, it is well-settled that Congress may provide for nationwide service of process, and it has done so in the federal antitrust laws. 658 F.2d at 402. Thus, in this case the Court looks to the relevant section of the federal antitrust statute to determine what parties are properly before it.
Section 22 of Title 15 provides:
Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.
15 U.S.C. § 22 (1973). The Congressional intent in enacting this section was to enable a person allegedly injured by violations of the antitrust laws to seek redress in his home district. Athletes Foot of Delaware v. Ralph Libonati, 445 F. Supp. 35, 43 (D.Del.1977). Thus, the term "transacts business" should be accorded a liberal interpretation and a corporation will be found to transact business in a district "if in fact, in the ordinary and usual sense, it `transacts business' therein of any substantial character." Id. at 43, citing Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, 373, 47 S. Ct. 400, 403, 71 L. Ed. 684 (1927). Substantiality of business operations is to be determined from the viewpoint of the average businessman. 445 F. Supp. at 43.
In the present case, Computone had sales in Maine of $435,833.84 for 1984 and $322,749.08 for 1985. See Kimball affidavit, March 10, 1986 at 1. Although these sales were not made directly to the ultimate users, they were made through two Maine businesses which are authorized dealers for Computone in Maine. Computone does not make direct retail sales; rather all sales of Computone products nationwide are through Computone's authorized dealers. See Kimball affidavit at 1-2. Such sales are sufficient to establish that Computone, in the ordinary and usual sense, `transacts business' in Maine. Thus, pursuant to 15 U.S.C. § 22, this Court has jurisdiction over Computone.
Accordingly, the Motion to Dismiss for lack of personal jurisdiction is DENIED.
SO ORDERED.
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519 Pa. 532 (1988)
549 A.2d 121
COMMONWEALTH of Pennsylvania, Appellee,
v.
William DONAHUE, Appellant.
Supreme Court of Pennsylvania.
Argued November 12, 1987.
Decided October 19, 1988.
*533 *534 A. Charles Peruto, Burton A. Rose, Philadelphia, for appellant.
Stephen B. Harris, Chief of Appeals, Doylestown, David W. Zellis, Asst. Dist. Atty., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
*535 OPINION ANNOUNCING THE JUDGMENT OF THE COURT
FLAHERTY, Justice.
The issues in this case are whether evidence of alleged prior acts of child abuse may be introduced in a prosecution for murder in which death of the victim was caused by alleged child abuse; and if such evidence may be admitted, the extent to which it may be challenged on cross examination.
At approximately 11:05 p.m. on March 23, 1983 Appellant Donahue and his girlfriend Claire Price took Claire's son Eddie to the emergency room at Holy Redeemer Hospital at Meadowbrook. The child, who was twenty-one months old, was dead on arrival at the hospital. Because of extensive bruises on the child's body, the examining physician suspected child abuse and reported the case to the police.
Police questioned both Donahue and Price that night, and two days later, the child's mother gave police a formal statement. Based on that statement, police arrested Donahue and charged him with the child's murder.
The trial began on August 15, 1983 in the Criminal Division of the Court of Common Pleas of Bucks County. On August 24, 1983, a jury found Donahue guilty of murder of the third degree, and on June 5, 1985 he was sentenced to seven and a half to fifteen years of imprisonment.
Evidence presented at trial was that Donahue and Price had been living together for approximately seven weeks. Each had custody of two children from former marriages. The group of six lived alternatively in Donahue's trailer and Price's apartment, located nearby. Price worked nights at a convalescent home, and Donahue, who was out of work because of a disability, stayed home with the four children. Among Donahue's duties was to assist in the toilet training of the smallest child, Eddie.
On March 23, Price returned home from work around 7:00 a.m. She saw her son Eddie, who at that time was apparently free of injury. Donahue took Eddie with him that *536 morning to do work cleaning out a garage, and when the two returned around noon, Eddie still appeared to be uninjured. Thereafter, Price took a nap and was awakened around 2:00 p.m. by a cry. She saw Donahue standing by the door of the trailer. He told her that the wind had blown the trailer storm door open and had knocked Eddie off the steps, but that Eddie was all right. Eddie went back outside to play. Donahue's son Billy had also been struck by the storm door earlier that day and sustained a cut lip.
According to Donahue, although Eddie appeared to be all right after he fell off the steps, around 3:30 p.m. one of the other children came in and told Donahue that Eddie had vomited outside. Donahue testified that he found Eddie sitting outside with vomit on his clothes and he took Eddie inside to give him a bath and change his clothes. Donahue woke Price around 4:00 p.m. so that the family could go to Price's mother's house for dinner. He also told her about Eddie's vomiting and suggested that they take Eddie to the hospital. Price declined to do that, thinking that Eddie had merely come down with the flu. Price noticed vomit on the ground as she left the trailer.
When the group arrived at Price's mother's house, Eddie stayed on the couch because he had been sick. While there, he began to "spit up" several more times. According to Donahue, Price asked her mother whether she should take the child "someplace," but the grandmother suggested that the child was simply ill and that he looked pale because he had been vomiting. N.T. Aug. 19, 1983, 53. Before the group left the grandmother's house, Donahue took Eddie to the bathroom.
When the group arrived home, the children were put to bed and the adults watched t.v. Price fell asleep in a chair and testified that sometime later she woke up and saw Donahue sitting in the kitchen holding a kitchen knife to his stomach. Price testified that Donahue said:
"Nobody's ever going to be able to forgive me for what I have done. I done something terrible.... You're never going to be able to trust me for what I have done."
* * * * * *
*537 He said repeatedly, repeatedly that he had done something terrible and nobody was ever going to be able to forgive him for it. He said that our relationship was over. He said he would rather die than go to jail. He said that he was afraid he had killed somebody, was very concerned about Jennifer and Billy [Donahue's own children].
N.T. Aug. 15, 1983, 61-62.
Because Price did not know what was wrong with Donahue, she called Donahue's mother, who came over. Donahue asked Price to wait in the bathroom while he told his mother what the matter was. When Price went into the bathroom, Donahue told his mother that Eddie was dead. Mrs. Donahue checked the child, who was not breathing, unsuccessfully attempted artificial respiration, and then told Price that her son was dead. Price came out of the bathroom and sat at the table, apparently in a daze. She testified:
... Bill told me, he started crying and he looked at me and he said, "Claire " he said, "I swear, I only punched him once in the stomach." ... He said he had punched him once, he swore up and down. Five minutes later, he's telling me he punched him again, he punched him again in the stomach to shut him up, apparently because Eddie had wet his pants.
N.T. Aug. 15, 1983, 63.
Donahue denied that he told Price he punched the child and he denied that he held a knife to his stomach. His testimony was that after he had watched t.v. for a while, he went into the children's rooms to see that they were covered. It was then that he found Eddie dead. He admits that when Price awoke, he was distraught and blamed himself for Eddie's death because he had not insisted that the child be taken to the hospital.
Two of the three issues raised by appellant in this case concern evidence of a prior act of child abuse he is alleged to have committed in 1980, three years prior to the incident in this case, when Donahue was living with a former wife. *538 In 1980, Donahue had been laid off from his regular employment and his wife had begun working. Donahue cared for his two children during the day, and one of his children, Billy[1], who was just over twelve months old, was being toilet trained at the time. N.T. Aug. 17, 1983, 13. Normally, Donahue would bathe the children and tell his wife to relax after she came home from work, but on March 7, 1980, Donahue's former wife bathed Billy for the first time in several days. While bathing the child, she saw bruises on the child's face, on his arms, down his spinal column, in the crack of his bottom, on his legs, and on the bottom of his foot. N.T. Aug. 17, 1983, 18. As a result, she took the child to the emergency room, where he was admitted to the hospital and stayed for four days. The two doctors who examined Billy diagnosed "possible battered child syndrome." Id., 63. Immediately prior to this incident, the child was in Donahue's care during the day.
The emergency room doctor testified as follows concerning the injuries which the child had when he arrived at the hospital:
My examination at that time revealed multiple bruises and contusions about the patient's body, about the patient's face, choke mark on the neck, multiple bruises on the mid to lower portion of the spine, as well as a bruise on the buttock.
N.T. Aug. 17, 1983, 43. The doctor further explained his finding of child abuse as follows:
My opinion was based on the fact that the child presented [sic] to the emergency room with no previous history of any disease, no previous history of any bleeding disorder. The history from the mother was that the patient had bruises all over the patient's body for an unknown reason. Whenever we see a patient like that which appears otherwise with normal heart and lungs, must [sic] suspect child abuse, that is the standard and due to the patient's *539 multiple bruises, as well as what clearly seems to be choke marks around the patient's throat area, my opinion at the time was that, was [sic] no other injuries, child abuse.
Id., 43-44. When questioned about the possible causes of the child's bruises, the following exchange occurred:
Q. A child, that's a toddler of 15 months playing with older children, what kind of bruises do they come up with?
A. Could get the same kind of bruises. However, I find it unlikely that they would sustain choke marks.
Q. Then what you are really saying is that these bruises that you saw are the kinds of bruises that could normally happen, except for what you call the choke marks, correct?
A. That is correct.
Id., 54.
Donahue explained Billy's bruises as having been received from two older children who were staying temporarily with his family and who played roughly with Billy. The child was returned to his parents' custody after he was released from the hospital and no charges of any sort were filed as a result of this incident.
The Commonwealth introduced evidence of the 1980 event on the theory that the prior incident showed Donahue's motive in the present case and demonstrates that the victim's injuries were not accidental. N.T. Aug. 15, 1983, 16, 17. Donahue's claim is that it was error to introduce evidence of the 1980 incident because (1) it was unduly prejudicial, (2) it was too remote in time, (3) the details of the crimes were not sufficiently similar to establish a common mental plan, and (4) there is no support in the record for the claim that the 1980 incident establishes a motive or negates Donahue's claim that the injuries to the deceased child were the result of accident.
The general rule is that evidence of past crimes is inadmissible to prove that the defendant committed the *540 crime with which he is presently charged. McCormick describes the rule as follows:
The disfavor for receiving proof of the character of a person as evidence that on a particular occasion he acted in keeping with his disposition is strongly felt when the state seeks to show that the accused is a bad man and thus more likely to have committed the crime. The long-established rule, accordingly, forbids the prosecution, unless and until the accused gives evidence of his good character, to introduce initially evidence of the bad character of the accused. It is not irrelevant, but in the setting of jury trial the danger of prejudice outweighs the probative value.
This danger is at its highest when character is shown by other criminal acts, and the rule about the proof of other crimes is but an application of the wider prohibition against the initial introduction by the prosecution of evidence of bad character. The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. There are numerous other purposes for which evidence of other criminal acts may be offered, and when so offered the rule of exclusion is simply inapplicable.
McCormick, On Evidence, § 190, pp. 447-448 (2d Ed., 1972). The "other purposes" of which McCormick speaks are enumerated in Commonwealth v. Clayton, 516 Pa. 263, 532 A.2d 385 (1987), where we cited Commonwealth v. Rose, 483 Pa. 382, 396 A.2d 1221 (1979) as standing for the proposition that
"evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the *541 commission of the crime on trial in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. [Citation omitted.] When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. [Footnote omitted.] [Emphasis added.]", quoting Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973).
Id. at 399-400, 396 A.2d at 1230.
516 Pa. at 276-77 n. 8, 532 A.2d at 392 n. 8. In short, although there is a general rule excluding evidence of other crimes, such evidence may come in under certain exceptions. The exceptions which the Commonwealth assert in this case are motive and absence of accident. Because we agree that evidence of the past event may come into evidence to negate Donahue's claim that the child's injuries were sustained in an accidental fall, we do not address the Commonwealth's alternate theory that the past event is also admissible to indicate motive.
Wigmore explains the accident exception as follows:
To prove intent, [and, therefore, the absence of accident], as a generic notion of criminal volition or willfulness, including the various noninnocent mental states accompanying different criminal acts, an entirely different process of thought is employed. The argument here is purely from the point of view of the doctrine of chances the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar *542 results, the less likely is the abnormal element likely to be the true explanation of them.
Thus, if A while hunting with B hears the bullet from B's gun whistling past his head, he is willing to accept B's bad aim or B's accidental tripping as a conceivable explanation; but if shortly afterwards the same thing happens again, and if on the third occasion A receives B's bullet in his body, the immediate inference (i.e., as a probability, perhaps not a certainty) is that B shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small.... In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent.
* * * * * *
It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand.
Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this *543 probative effect is the likeness of the instance.... So, where the intent of an erroneous addition in a bookkeeper's accounts is in issue, the erroneous addition of a bill rendered to a former employer ten years before would have no significance, because it is still within the limits of ordinary casual error that such things should occur at intervals; but several other erroneous additions in the bookkeeper's own favor in the same year and the same book of accounts go to exclude the explanation of casual error, and leave deliberate intent as the more probable explanation. In short, there must be similarity in the various instances in order to give them probative value....
II Wigmore, On Evidence, § 302, pp. 241, 245, 246 (Chadbourn Rev.1979). (Emphasis added).
Thus, in order to avail itself of the accident exception to the rule that past crimes are usually not admitted into evidence, the Commonwealth must show that (1) the previous incident(s) are similar to the incident in question and (2) that a similar result obtained in both cases. The basic idea is that although two different children may, at different times, be seriously injured or killed while in a person's care, and that this may happen without his intentional conduct, as the number of such incidents grows, the likelihood that his conduct was unintentional decreases. It is merely a matter of probabilities.
A final requirement is that if evidence of a prior criminal incident is to be admitted under the accident exception, it must be determined by the court to be established by substantial evidence:
[I]t is clear that the other crime, when it is found to be independently relevant and admissible, need not be established beyond a reasonable doubt, either as to its commission or as to defendant's connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be "clear and convincing." And it is believed that before the evidence is admitted at *544 all, this factor of the substantial or unconvincing quality of the proof should be weighed in the balance.
McCormick, On Evidence, § 190, 451-452 (2d Ed., 1972).
In the present case, there was evidence that both children, Billy and Eddie, were being toilet trained at the time Donahue was caring for them, that he was partially responsible for their toilet training, that he himself was out of work, first because of a layoff and later because of a disability, that he cared for the children while his former wife and, later, his girlfriend were at work, that both children were seriously injured or killed while under his care, and that the nature of the injuries was evidenced in part by a pattern of bruises over the children's bodies. There is, in other words, substantial evidence of a prior criminal act and of a similarity in the two cases.
Because the former case tends to decrease the likelihood that the same man would be involved in two such similar accidents, the former incident is admissible as probative of whether the injuries in the second case were accidental, as Donahue claims they were.[2]
As to the claim that the two incidents were too far removed in time from each other, this Court stated in Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981):
Remoteness, in our view, is but another factor to be considered in determining if the prior crime tends to show that the same person committed both crimes. The degree of similarity between the two incidents necessary to prove common identity of the perpetrator is thus inversely proportional to the time span between the two crimes.
492 Pa. at 416, 424 A.2d at 1259. Although this case concerns the admission of prior crimes for the purpose of *545 negating a claim that the child's death occurred because of an accident, not to show that the perpetrators of two crimes were the same person, the Shively analysis, nevertheless, is applicable. Remoteness is but another factor to be considered in determining whether a prior incident of alleged child abuse, three years earlier, tends to show that a second incident of child abuse was an accident. It may be that in a hypothetical case, a prior crime might have occurred so far in the past that this Court would not allow its admission, ruling, in effect, that it would be immaterial to the present controversy, but we need not reach that question in this case, for three years, on the facts of this case, is not unduly remote.
Finally, Donahue claims that the trial court erred in not allowing him to introduce evidence that his former wife, Cynthia Baxter, might have abused the child. Donahue proposed to introduce evidence which would have been presented in his case in chief that Baxter was seen choking Billy Donahue in March of 1981, the same child who was hospitalized in March of 1980 with choke marks. In other words, approximately a year after the hospitalization, Baxter, who testified as to the 1980 incident, was allegedly observed choking the same child. The court denied Donahue the opportunity to present this testimony, over the objection of defense counsel:
THE COURT: No, when did this occur?
THE PROSECUTOR: March of 1980.
THE COURT: You're too far away
DEFENSE COUNSEL: Your Honor, for the record, she actually observed Cindy
THE PROSECUTOR: Quietly.
THE COURT: Okay, I know what you will say. Observed Cindy choking the child, Billy. This is March of 1981?
DEFENSE COUNSEL: Yes, your Honor. I suggest what we're talking about is the conduct of the parties. This is the only eyewitness as to actual physical abuse *546 shown by Cindy and not the defendant. I think it is extremely vital.
THE COURT: No, it is too remote. It would be in my opinion relevant were it to have happened within the immediate time frame of the charge but I won't admit it.
* * * * * *
THE COURT: I want it within the same period, two weeks before or after.
DEFENSE COUNSEL: Your Honor, it would be testimony that the parties separated and during the period of the separation when the child was in the control of Cindy, the marks constantly appeared on the child. I think that is indicative of the conduct.
THE PROSECUTOR: That is not what we heard yesterday.
DEFENSE COUNSEL: You have just put in the record the prejudice to this defendant and I have been curtailed in showing what Cindy has done and the fact that Cindy abandoned her children and....
N.T. August 18, 1983, 12-14.
We believe the trial court to have been in error. Where the Commonwealth has introduced evidence of a former criminal episode in an attempt to convince the jury that Donahue committed the present crime, also at issue is Donahue's guilt in the former criminal episode. Since that is the case, Donahue must be permitted to introduce evidence of his innocence of the former crime, for where the Commonwealth has availed itself of the extraordinary device of former crimes evidence under the accident exception to the rule which would otherwise exclude such evidence, the accused must be allowed to affirmatively defend himself from the effect of such testimony. Fundamental due process requires no less. Since this defense was not allowed into evidence, a new trial must be granted.
Reversed and remanded for a new trial.[3]
*547 McDERMOTT, J., files a concurring opinion which ZAPPALA, J., joins.
PAPADAKOS, J., files a dissenting opinion.
LARSEN, J., did not participate in the consideration or decision of this matter.
McDERMOTT, Justice, concurring.
Although I concur in the grant of a new trial the Court should have gone further and discussed the trial judge's rulings limiting appellant's opportunity to establish Ms. Baxter's bias. See Opinion Announcing the Judgment of the Court at 17, fn. 3. In my view the judge impermissibly restricted appellant's inquiry.
ZAPPALA, J., joins in this concurring opinion.
PAPADAKOS, Justice, dissenting.
I must dissent to the use by the Majority of the general rule that evidence of past crimes is inadmissible to prove that a defendant committed the crime with which he is presently charged. I do not believe that this rule, with its exceptions, has any relevance to the issues presented in this case. Rather, Professor Wigmore's phrase "prior acts of a similar nature" as indicated in the quote used by the Majority, pp. 543-544 (II Wigmore, On Evidence, § 302, pp. 241, 245, 246 (Chadbourn Rev.1979)) is directly on point.
Appellant has been charged with criminal homicide caused by child abuse. Appellant explained this homicide as resulting from accident. To negate this accident theory, the Commonwealth introduced evidence that three years earlier, another child in Appellant's care also suffered substantial bruises which were thought, by medical authorities, to be the result of child abuse. In this prior event, no one *548 spoke of "crimes" nor was Appellant charged with a crime. Surely, not every bruised child has been criminally assaulted. If that were so, no parent would be free from criminal conduct in administering corporal punishment. And don't let anyone try to convince me that the hickory paddle did not abuse the sensitivity of my posterior.
Three years earlier, the Appellant was suspected of bruising a child by acts characterized as child abuse. Appellant made no denials at that time. The child, fortunately, survived. Now, three years later, Appellant is again suspected of bruising a child and, unfortunately, such bruises caused the death of the child. The prior act, not adjudged criminal, is similar in nature to the present act and may surely be shown to refute a claim of accident.
By referring to the prior act as a "crime" and permitting the introduction of evidence of prior "crimes" in this case, the Majority has, in effect, charged, tried and convicted Appellant of a "prior crime." This is not only unconscionable, but also unnecessary to the proper disposition of the issue presented.
Furthermore, I disagree with the grant of a new trial on the thin rationale advanced by the Majority. In essence, the Majority is advocating that a new trial be granted because the Appellant was not permitted to introduce irrelevant evidence. Appellant attempted to introduce evidence that his former wife had also been seen choking young Billy, the victim of the prior child abuse incident. The purpose, of course, was to challenge the credibility of the witness and to create a doubt as to whether Appellant was, in fact, responsible for the alleged child abuse in the prior event. This would certainly be proper if the Appellant had denied having abused the child in the prior incident and had implicated his prior wife. At trial, Appellant was shown to have explained that Billy's bruises were received from two older children who were staying temporarily with his family and who played roughly with Billy. He did not attempt to implicate his former wife as causing the bruises that took Billy to the hospital. Absent such an allegation, the evidence *549 that approximately one year after the stated incident she was seen choking Billy is totally irrelevant. This evidence was properly excluded and no new trial is warranted. I, therefore, must dissent from the grant of a new trial.
NOTES
[1] Donahue's former wife now denies that Billy is Donahue's child, although this is the first public announcement she has made to that effect. N.T. Aug. 17, 1983, 39.
[2] Donahue asserts that there is nothing of record to negate his claim that the child's injuries were the result of an accident. This claim is without merit because it misapprehends the nature of the accident exception stated in Clayton and Rose, supra. The very existence of the alleged similar prior criminal incident tends to negate Donahue's claim that the present incident was accidental.
[3] Because of our disposition of this case, we do not address the following additional claims: (1) that a mistrial should have been granted because of police testimony referring to Donahue's refusal to give a police statement and because another witness stated that Donahue remained silent after being confronted with the accusation that he beat the child to death; (2) that the trial court improperly limited Donahue's cross-examination of Cynthia Baxter for the purpose of showing bias; and (3) that the trial court improperly limited Donahue's direct evidence concerning Baxter's bias.
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632 F. Supp. 333 (1986)
CITY OF ALAMEDA, Plaintiff,
v.
TODD SHIPYARDS CORPORATION and Does I through X, Defendants.
TODD SHIPYARDS CORPORATION, Cross-Complainant,
v.
CITY OF ALAMEDA, United States of America, and Does XI through C, Cross-Defendants.
No. C-85-2789 SC.
United States District Court, N.D. California.
March 20, 1986.
*334 Atwood, Hurst, Knox & Anderson, San Jose, Cal., for Todd Shipyards.
Carter J. Stroud, City Atty., Alameda, Cal., for City of Alameda.
Paul E. Locke, Asst. U.S. Atty., San Francisco, Cal., for U.S.
ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DENYING MOTION OF THE UNITED STATES TO BE DISMISSED
CONTI, District Judge.
Plaintiff City of Alameda filed this action against defendant Todd Shipyards Corporation *335 in Alameda County Superior Court on August 22, 1984. The parties dispute title to 4.9 acres of land in Alameda. Todd Shipyards cross-claimed against the United States of America. On March 27, 1985, the United States of America removed the action to United States District Court for the Northern District of California. This court ordered the City of Alameda to join the State of California as a necessary party defendant under California Public Resources Code Section 6308.
The matter is presently before the court on cross-motions for summary judgment submitted by plaintiff and by defendant Todd Shipyards Corporation, and on a motion to dismiss filed by the United States. If the court were to dismiss the United States, the court would retain diversity jurisdiction, since Todd Shipping is a New York corporation and City of Alameda is deemed a citizen of California for diversity purposes. 28 U.S.C. § 1332; Helmsley v. City of Detroit, 205 F. Supp. 793, 794 (E.D. Mich.1962).
This action concerns 4.9 acres of land adjacent to an army air base on the Oakland Estuary in the City of Alameda. The land lay between low tide and high tide in 1850, at the time California became a state. Therefore California gained title to the land in trust for the public. The State of California granted the land to the City of Alameda in 1913, under certain restrictions. The City of Alameda in turn granted the land to the United States in 1931. The United States then purported to sell the land to Todd Shipyards in 1970.
The City of Alameda contends that the conveyance to Todd Shipyards was void, and that the land reverts to the City. Alternatively, the City of Alameda contends that Todd Shipyards holds the land subject to public use restrictions. Todd Shipyards asserts that the land in question was reclaimed from the tides long ago, so that it is not subject to public use restrictions.
The court must consider the series of grants and deeds concerning this parcel in light of the California law governing tidal lands. The court finds that the United States lacked power to convey the land to Todd Shipyards. The court finds, however, that title does not revert to the City of Alameda. At most, title reverts to the United States. Moreover, Todd Shipyards may seek to estop the City of Alameda from challenging title. Issues remain for trial on estoppel. Finally, the court finds that the land remains subject to public trust restrictions.
A. FACTS
The parcel of land in dispute lay within the Oakland estuary in 1850. United States engineers filled much of the land between roughly 1870 and 1913. The Northern edge of the land now borders the Oakland estuary.
The parties disagree over how much of the land is now subject to tidal action. The United States puts forward the declaration of Michael Mahoney, a land surveyor. Mr. Mahoney declares that "the subject land was, for the most part, reclaimed as of 1915. Furthermore, the shoreline of the subject property remains today essentially as it was depicted on the map in 1915." The State of California puts forward the declaration of Rand D. La Force, a land surveyor. Mr. La Force divides the land into three parcels. He declares that 2.1 acres of Parcel 3 are submerged lands, that 0 or 0.2 acres of Parcel 1 are submerged lands, and that Parcel 2 is filled.
It is unclear how the filled portion came to be filled. The State of California claims that United States engineers merely dumped on the subject land sludge dredged from the harbor channel. This filling was not planned. The State has put before the court a letter from the Mayor of Alameda to his Congressman complaining of this action in 1917.
In 1913 the State of California granted to the City of Alameda all the tidelands within the City's boundaries. In 1917 the Legislature of California amended its 1913 grant and authorized the City of Alameda to grant the lands to the United States. In 1930 the citizens of Alameda voted to convey *336 1100 acres of land to the United States of America for an army air base. Deeds in 1931 and 1932 recited that the City of Alameda conveyed the land to the United States "forever ... for public purposes."
Because of a mistake in the 1931 and 1932 deeds, the City of Alameda neglected to convey to the United States a thin sliver of land bisecting the 1100 acres. The United States obtained a judgment in eminent domain for this portion of land in 1943. Part of the 4.9 acres in question lay within this portion.
The United States did construct an army air base on the 1100 acres. In 1948, additionally, the United States began leasing the 4.9 acres in question to Todd for use as a shipyard. Todd Shipyards leased the parcel continuously until 1970. In 1970, Todd Shipyards purchased the 4.9 acres from the United States for $525,000.
B. THE PUBLIC TRUST
When California attained statehood, it acquired title to the State's tidelands as an incident of sovereignty. Tidelands are those lands covered by high tide and uncovered by low tide. Each state holds title to its tidelands "in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties." Illinois Central Railroad v. Illinois, 146 U.S. 387, 452, 13 S. Ct. 110, 118, 36 L. Ed. 1018 (1892). The public trust in tidelands restricts the circumstances in which a state may convey the lands to a private party. Id. Even after private conveyance, the public retains the right to use the land for navigation, commerce and fishing. Thus any owner of tidelands holds them subject to public use restrictions. These restrictions vary in degree from state to state. See generally, Note, "The Public Trust in Tidal Areas," 79 Yale L.J. 762 (1970).
A long series of cases affirms the public trust in tidelands in California. In addition, Article X, Sections 3 and 4 of the California Constitution, adopted in 1879, buttress the trust restrictions. Section 3 provides: "All tidelands within two miles of any incorporated city ... shall be withheld from grant or sale to private persons, partnerships, or corporations...." Section 4 provides: "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water...."
C. ALIENATION
1. Public Trust Doctrine Bars Alienation To A Private Person Absent Special Action By The Legislature
The California Constitution plainly bars the state and its cities from conveying tidelands to private persons. Nonetheless, California cases beginning with People v. California Fish Co., 166 Cal. 576, 138 P. 79 (1913) have allowed the state to alienate tidelands to private persons in certain limited circumstances. These cases allow the state to determine that in some instances private ownership will better serve development.
In California Fish, for example, the legislature had authorized state boards to fill in the land now bordering San Francisco harbor, and to sell these lands to private persons. California Fish upheld these sales.
... in the administration of this trust when the plan or system of improvement of development adopted by the state for the promotion of navigation and commerce cuts off a part of these tide lands or submerged lands from the public channels, so that they are no longer useful for navigation, the state may thereupon sell and dispose of such excluded lands into private ownership or private uses, thereby destroying the public easement in such portion of the lands and giving them over to the grantee, free from public control and use. *337 The power of the legislature to alien trust lands is limited, however, and the California courts have struck down improper legislative action. See, e.g., County of Orange v. Heim, 30 Cal. App. 3d 694, 106 Cal. Rptr. 825 (1973).
Most importantly, only the legislature may authorize the sale of trust lands to a private person under California Fish. In the present case, the legislature and state boards have taken no action to authorize private sale. The state has not set up a system of development that cuts off the subject lands from public navigation, and the state has made no finding that the lands have lost their public value. Absent such action, Article X, Section 3 of the California constitution clearly bars private sale. The state's grant to the City of Alameda made this clear.
2. The United States Did Not Acquire The Right To Convey The Land To A Private Person
The granting statute and deeds in this case make clear that the United States did not acquire the right to convey the land to a private person.
In 1913 the State of California granted the City of Alameda title to all tidelands within its borders. In the granting statute, the State gave its full interest to the City, subject to several conditions. Among these conditions, the statute forbade the City from alienating the land to a private party. The statute also reserved the State's right to use wharves and other improvements, and reserved the people's right to fish.
In 1917 the State amended the statute. The amended grant allowed Alameda to convey its tidelands to the United States. It retained the prohibition against sale to a private owner. The amended statutory grant reads as follows:
There is hereby granted to the city of Alameda, a municipal corporation of the State of California, and to its successors, all the right, title and interest of the State of California, held by said state by virtue of its sovereignty, in and to all the salt marsh, tide and submerged lands, whether filled or unfilled, within the present boundaries of said city ... to be forever held by said city, and by its successors, in trust for the uses and purposes, and upon the express conditions following, to wit:
... said city, or its successors, shall not, except as herein authorized, at any time, grant, convey, give or alien said lands, or any part thereof, to any individual, firm or corporation for any purpose whatever....
[the city or its successors may lease the land for certain purposes for a period not to exceed twenty-five years]
... provided, however, that the said city of Alameda may grant, give, convey and alien such lands or any portion thereof, forever to the United States for public purposes of the United States....
(emphasis added) The United States is the successor in interest to the City of Alameda. The italicized clause bars both the City and the United States from conveying the land to a private person. The City of Alameda did not acquire from the state the right to sell the land to a private person, and hence the City could not in turn convey this right to the United States.
D. THE LAND DOES NOT REVERT TO THE CITY
Because the United States lacked power to convey the land to Todd Shipyards, the purported conveyance of 1970 is void. Thus legal title reverts to the United States. The City of Alameda has established no basis for its claim that the land reverts to the City.
California's grant to the City of Alameda provided that Alameda could convey the land to the United States "forever". It did not require that Alameda grant a defeasible estate.
In 1930 the voters of Alameda approved a proposition to convey the 1100 acres to the United States "forever" for use as an army base. The proposition named two conditions. It required that the United States accept the land for use as an army *338 base by a certain date, and it required that the United States appropriate at least $500,000 for development of the land. The proposition did not require that the United States always use the land as an army base. Deeds of 1930 and 1931 incorporated the provisions of the voter proposition. The concluding paragraph of the 1931 deed made reference to the two conditions of the voter proposition:
TO HAVE AND TO HOLD, all and singular the said lands together with the appurtenances and privileges thereto incident, unto said Party of the Second Part, forever for public purposes, subject to the terms and conditions as aforesaid.
Neither the voter proposition nor the deeds contained any provision that the land could revert to the City after the two initial conditions had been met.
The United States satisfied the two initial conditions. It wrote to the City of Alameda requesting a quitclaim deed. In 1935 the City Council authorized the Mayor to issue a quitclaim deed. No quitclaim deed is recorded. Nonetheless, the Council Resolution makes clear the City's intent. Since the United States had satisfied the two conditions of the voter proposition, the United States now possessed Alameda's full interest in the land. This was a fee simple subject to the trust restrictions. There was no provision that the land might revert to the City or the State if the United States violated the trust restrictions.
The clause quoted from the deed expressly referred to the two initial conditions. Thus the phrase "for public purposes" does not establish a further condition subsequent. The parties did not intend that the land would revert to the City of Alameda if the United States ceased to use the land "for public purposes." At most, this phrase declared the purpose for which the City of Alameda expected the land would be used. See, e.g., Fitzgerald v. County of Modoc, 164 Cal. 493, 495, 129 P. 794 (1913); Springmeyer v. City of South Tahoe, 132 Cal. App. 3d 375, 380-81, 183 Cal. Rptr. 43 (1982). "[T]he mere recital in the deed of the purpose for which the land conveyed was to be used is not in itself sufficient to impose any limitation or restriction on the estate granted." Selectmen of the Town of Nahant v. United States, 293 F. Supp. 1076 (D.Mass.1968). Accord, Lethin v. United States, 583 F. Supp. 863, 871 (D.Ore.1984).
The City of Alameda asserts an implied condition that the land would revert to the City if the United States attempted to sell the land in violation of the trust restrictions. The court will not add an implied condition absent a showing that this is what the parties intended. "A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended." Cal.Civil Code § 1105.
The State cites Boston Waterfront Development Corp. v. Commonwealth, 378 Mass. 629, 393 N.E.2d 356 (1979) to support an implied condition of reversion. The citation is not apt. Massachusetts law differs greatly from California law on tidelands. Massachusetts law expressly allows a grant of tidelands to a private party, so long as the private owner's use is in keeping with the trust purposes. In Boston Waterfront the Massachusetts court found an implied condition that a private party can hold tidelands only for publicly useful purposes. As applied here, then, the rule in Boston Waterfront would create a question of fact whether Todd Shipyards's use serves the public interest in use of the waters. It would not challenge Todd Shipyards's ownership.
Finally, the Statute of Limitations bars the City of Alameda and the State of California from suing to enforce a reversion. The City brought this action fourteen years after Todd Shipyards purchased the property, and the State then joined in the action. California Code of Civil Procedure Section 315 sets a ten year limit on an action by the State to claim a right to real property. Section 316 sets the same limit for an action by the City as grantee from the state. Thus neither the City nor the State can sue to claim a right to the land *339 by reversion. The statute of limitations does not bar Alameda's suit to invalidate the sale for violation of the trust, but the statute does bar Alameda's suit to reclaim title.
E. TODD SHIPYARDS MAY ARGUE ESTOPPEL AT TRIAL
In part C of this opinion the court determined that the United States did not have the power to convey title to Todd Shipyards. The United States purported to sell the land to Todd Shipyards in 1970. Fourteen years later, the City of Alameda filed suit to challenge Todd Shipyards's title. Todd Shipyards asserts that Alameda knew of the sale in 1970 and did not object to the sale. Todd Shipyards asserts that it made improvements on the land in reliance on its title. Todd Shipyards may argue that Alameda is estopped from challenging title.
There is precedent in California case law to estop a city from challenging invalid title to tidelands. In City of Long Beach v. Mansell, 3 Cal. 3d 462, 467, 91 Cal. Rptr. 23, 476 P.2d 423 (1970), the City of Long Beach had acquiesced in the filling of tidelands, and had plotted streets along the fill. The City of Long Beach knew that title was doubtful. The court held, in a complicated scenario, that the City and State were estopped from challenging the title they had long tolerated.
Estoppel may apply against the government where it would not violate significant public policy and where justice so requires. City of Long Beach v. Mansell, 3 Cal.3d at 493, 91 Cal. Rptr. 23, 476 P.2d 423. Although the California Constitution announces a policy against privatization of tidelands, that policy will not bar an estoppel defence here, since in many other instances the California courts have upheld acts of the legislature conveying tidelands to private owners.
The court in Long Beach enumerated the elements of estoppel as follows:
... (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.
3 Cal.3d at 489, 91 Cal. Rptr. 23, 476 P.2d 423, quoting Driscoll v. City of Los Angeles, 67 Cal. 2d 297, 305, 61 Cal. Rptr. 661, 431 P.2d 245 (1967). In the present scenario, Todd Shipyards may be able to show these elements.
The court states the following issues for trial: (1) Did the City and the State have notice that the United States conveyed the land to Todd Shipyards in 1970 by sale (instead of lease)? (2) Did the City and the State intend Todd Shipyards to believe they acquiesced in the sale? If not, did they act so that it was reasonable for Todd Shipyards to believe they acquiesced in the sale? (3) Was Todd Shipyards ignorant that the United States lacked power to sell the land? (4) Did Todd Shipyards rely to its detrimentby paying taxes, by making improvements on the land, or otherwiseon the City's and the State's acquiescence?
These issues remain for trial. Therefore the court denies the cross-motions for summary judgment. The parties remain free to raise additional issues at trial or in further motions. The court does not decide issues of standing at this time.
F. RESTRICTED USE
California Constitution Article X, Section 4 amplifies the common law restrictions on the use of tidelands. Tidelands granted to a municipality are generally acquired subject to the public trust. Mallon v. City of Long Beach, 44 Cal. 2d 199, 209, 282 P.2d 481 (1955). In the present instance, the legislature granted the lands to Alameda "in trust". Thus the legislature clearly intended that public trust restrictions would remain. The City did not then have the power to remove the trust restrictions merely by conveying the land to the United States, and the United States did not have the power to remove the trust *340 restrictions merely by conveying the land to Todd Shipyards.
Todd Shipyards argues that the land has been filled, so that it is no longer tidelands and is not subject to the trust restrictions. California case law rejects this argument. The court in California Fish held that the legislature could remove lands from the tidal trust only in limited circumstances.
... in the administration of this trust when the plan or system of improvement or development adopted by the state for the promotion of navigation and commerce cuts off a part of these tide lands or submerged lands from the public channels, so that they are no longer useful for navigation, the state may thereupon sell and dispose of such excluded lands into private ownership or private uses, thereby destroying the public easement in such portion of the lands and giving them over to the grantee, free from public control and use.
166 Cal. at 585-86, 138 P. 79. In the present case, the state has made no plan of improvement including the subject land, and the state has not disposed of the land into private use.
The California courts have expressly held that filling the land alone does not ease the trust restrictions. In City of Long Beach v. Mansell dredging and filling had reclaimed large areas of former tidelands. Residential and recreational areas rested on this fill. Nonetheless, the court held that the land remained "tidelands".
... it would be contrary to the spirit and purpose of [the constitutional prohibition against alienation] to conclude that the word `tidelands' ... denotes only those public lands which retain the physical characteristics of tidelands at the time of proposed alienation, for such a construction would permit parties to remove public tidelands from the reach of the constitutional provision by simply filling so that such lands were no longer covered and uncovered by the flow and ebb of the tide.
City of Long Beach v. Mansell, 3 Cal. 3d 462, 479, 91 Cal. Rptr. 23, 476 P.2d 423 (1970). Private parties may not remove lands from the trust merely by filling. City of Long Beach squarely holds that lands subject to the action of the tides at the time of the Constitutional provisions remain tidelands for purposes of the restriction even after they are filled.
In Atwood v. Hammond, 4 Cal. 2d 31, 48 P.2d 20 (1935) the state had authorized the city to fill tidelands as part of harbor development. The state then issued a grant declaring that the tract had ceased to be tidelands and freeing it from the trust. Atwood held that this was permissible under the common law trust and under the constitution. City of Long Beach affirmed Atwood and emphasized that only the state can free tidelands from the public trust.
... we emphasize that the circumstances under which this may occur are of necessity unique, that the conditions sanctioning its approval must be scrupulously observed and satisfied, and that generally speaking the reclaimed area alleged to be free from both the public trust and the constitutional restriction against alienation into private ownership must be, as it were, a residual product of the larger program ... determined by the Legislature to have no further value for the purposes of the public easement.
The state has taken no such action here. Thus Atwood and City of Long Beach require that the land remain subject to the public trust.
City of Berkeley v. Superior Court, 26 Cal. 3d 515, 162 Cal. Rptr. 327, 606 P.2d 362 (1980) represents only a limited departure from this rule. In that case the state Board of Tide Land Commissioners had granted land to private parties under a statute of 1870. In 1915 the California Supreme Court had ruled that these private owners held their land free of the public trust. City of Berkeley overruled the earlier decision. It held that in general the state could not sell tidelands free of the public trust. The court recognized, however, that it would be unfair to take from *341 property owners interests they had acquired in reliance on the earlier decision. The court balanced the public interest in tidelands against the fair expectations of the owners. The court resolved that parcels of land still subject to tidal action would retain the public trust restrictions, while parcels that had been filled would no longer be subject to the public trust.
City of Berkeley emphasized that this compromise applied only to the lands then before the court. The court left standing the rule that filling alone does not terminate the trust. 26 Cal. 3d at 535, n. 19, 162 Cal. Rptr. 327, 606 P.2d 362. In the present case, Todd Shipyards relies upon the following factors: (1) filling was substantially completed before the first conveyance of the subject lands; and (2) Todd Shipyards did not know of the restrictions when it purchased. These two factors are not sufficient to oust the trust restrictions.
The sliver of land the United States acquired by condemnation also carried with it public trust obligations. See, e.g., United States v. 1.58 Acres of Land, etc., 523 F. Supp. 120, 124 (D.Mass.1981). Article X of the California Constitution establishes a trust in the land. Even if the land was filled at the time of the condemnation action, the United States still could acquire only the interest of its predecessors in title, the City and the State. Since the State and the City both held the land subject to the public trust, the United States could take the land only subject to the public trust.
G. THE UNITED STATES SHOULD NOT BE DISMISSED
The United States moves the court to dismiss it from this action. Todd Shipyards acquired title from the United States by a quitclaim deed. Todd Shipyards therefore can have no claim against the United States for breaching any warranty of title. Hagan v. Gardner, 283 F.2d 643, 646 (9th Cir.1960). Nonetheless, the United States has an interest in the land. Its conveyance of title to Todd Shipyards was invalid. Therefore title will revert to the United States unless Todd Shipyards proves an estoppel defence. Since the United States does have an interest in the property, it should not be dismissed.
H. RESOLUTION OF THE ISSUES
In its order of January 24, 1986, the court directed the parties to address the several issues that govern this action. The court resolves these issues as follows.
a. Tidelands may be alienated from public ownership only by special action of the legislature conveying them for a public purpose. California Fish.
b. The City of Alameda held a restricted fee. It did not have the right to alienate the land to a private party. The City had the power to convey to the United States only this same restricted fee.
c. The City conveyed to the United States a fee subject to public trust restrictions. The United States was obligated to hold the land in trust for navigation and public use.
(i) The United States violated its trust obligation in purporting to convey the land to Todd Shipyards. However, the land does not revert to the City for that reason.
d. When it acquired a strip of the land by condemnation, the United States acquired the condemned lands subject to public trust obligations. The United States was obligated not to alienate these lands into private ownership.
(i) The United States violated these obligations when it purported to transfer a portion of that property to Todd Shipyards.
e. The City of Alameda has not claimed any interest in the land Todd Shipyards refers to as "Parcel P".
f. The tidelands were filled in part sometime before their transfer from the City to the United States. Mere filling does not remove the public trust obligations, however. To remove the trust obligations requires a special act of the legislature. None of the land has been reclaimed by such a special act.
*342 g. The United States did not have power to reclaim the land so as to remove it from the public trust.
h. Todd Shipyards may have a defense of estoppel. Factual questions remain for trial. (See Part E.)
In accordance with the foregoing, it is hereby ordered that:
(1) the motion of the City of Alameda for summary judgment is denied;
(2) the motion of Todd Shipyards for summary judgment is denied;
(3) the motion of the United States to be dismissed from this lawsuit is denied; and
(4) status conference and trial setting is continued to 10:00 a.m. on April 11, 1986. Each party shall file a brief supplemental status report by April 7, 1986 indicating its plans for further motions and for trial in light of this order.
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632 F. Supp. 1049 (1986)
ELATOS RESTAURANT CORP., d/b/a Corner Lunch, Plaintiff,
v.
Charles C. SAVA, District Director, Immigration & Naturalization Service, Defendant.
No. 84 Civ. 8406(CES).
United States District Court, S.D. New York.
March 18, 1986.
*1050 *1051 Nicholas Paul Altomerianos, New York City, for plaintiff.
Rudolph W. Giuliani, U.S. Atty., New York City (Jorge Guttlein, Asst. U.S. Atty., of counsel), for defendant.
MEMORANDUM DECISION
STEWART, District Judge:
Plaintiff Elatos Restaurant d/b/a Corner Lunch ("plaintiff" or "petitioner") brings this action against defendant Charles C. Sava, New York District Director of the Immigration & Naturalization Service ("INS"), seeking review of a final decision by INS Regional Commissioner Stanley E. McKinley ("Regional Commissioner") that denied plaintiff's petition to grant George Milatos ("beneficiary") preference status for the issuance of an immigrant visa on the basis of his profession or occupation under the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(6). Plaintiff moves for summary judgment pursuant to Fed.R. Civ.P. 56. Defendant cross-moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). We deny plaintiff's motion and grant defendant's cross-motion.
BACKGROUND
On July 23, 1981, plaintiff, a New York corporation doing business as a restaurant in Queens, New York, under the trade name of Corner Lunch, filed an application for alien employment certification with the *1052 United States Department of Labor ("DOL"). In its application, plaintiff stated that it needed a Greek specialty cook with four years' experience. Plaintiff named George Milatos, a resident of Nassau, Bahamas, as the beneficiary and indicated that it would employ him full-time at a weekly salary of $230. In support of plaintiff's application, the beneficiary indicated that he had worked for Nassau Airport Caterers Ltd. in the Bahamas from 1963 until June 1978, preparing and cooking specified Oriental and Greek dishes. An unsworn letter dated October 31, 1980 from the General Manager of Nassau Airport Caterers, George Skandaliarius, verified the beneficiary's employment "as a cook with a wide knowledge of international cuisine."
Following the DOL's certification and approval of the application, plaintiff petitioned the INS on April 8, 1982 to classify the beneficiary's status as eligible for a sixth preference visa. The petition, which was accompanied by the approved labor certification including the October 31, 1980 letter from Skandaliarius, indicated that plaintiff had a net annual income of $95,000. On June 17, 1982, the District Director denied the petition on the ground that plaintiff had failed to establish that the beneficiary had "any experience cooking primarily Greek and Oriental foods, as required by the labor certification."
A June 30, 1982 appeal to the Regional Commissioner was dismissed on March 11, 1983 because of plaintiff's failure to provide documentation of the beneficiary's experience. Plaintiff requested reconsideration of this decision and enclosed an August 16, 1982 letter from Skandaliarius stating that the beneficiary had been employed by his company, El Toro Restaurant, in the Bahamas as a Greek specialty cook for the past five years. In response, the Regional Commissioner withdrew his earlier decision and remanded the case to the District Director for a new decision.
On July 22, 1983, the District Director denied plaintiff's petition a second time. Apart from plaintiff's failure to submit verification of the alien's qualifications in the proper affidavit form, see 8 C.F.R. § 204.2(i), the District Director found that plaintiff had also failed to offer evidence sufficient to establish that the beneficiary had the requisite experience required by the DOL certification or that plaintiff could meet the proffered wage. He certified his decision for review to the Regional Commissioner. Plaintiff, who had been proceeding pro se, retained counsel in March 1984.
By letter dated July 12, 1984, the Regional Commissioner advised plaintiff that it had fifteen days to supplement the record with documentary evidence in support of its appeal. Plaintiff responded by submitting two affidavits and its 1982 corporate income tax return. The affidavit submitted from Skandaliarius stated that he was the general manager of Nassau Airport Caterers and owner of El Toro Restaurant from 1974 to 1982, and that the beneficiary had in fact been employed by El Toro for four years rather than five years as previously stated in his August 16, 1982 letter. The second affidavit was submitted from Bernard Murphy, who stated that he was the Head Chef at International Airport Caterers, that he had worked with the beneficiary from July 1965 until June 1978, and that the beneficiary was "a cook of international cuisine specialising [sic] in Greek Food." Plaintiff's tax return reflected a net taxable income of $5,717.49.
After consideration of the supplemented record, the Regional Commissioner affirmed the decision of the District Director and dismissed plaintiff's appeal on September 28, 1984. The Regional Commissioner found that, since the proffered wage was twice plaintiff's taxable income, plaintiff had failed to establish its ability to pay the beneficiary. He also found that the conflicting statements in the record failed to establish the required experience.
In commencing the present action on November 21, 1984, plaintiff contends that the denial of its petition is unsupported by reasonable, probative, and substantial evidence and constitutes an abuse of discretion *1053 by the INS. Plaintiff further contends that the denial discriminates against plaintiff as a small business in violation of the due process clause.
DISCUSSION
Under the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1153, the INS is accorded broad discretion to grant or deny visa preference classifications. See North American Industries, Inc. v. Feldman, 722 F.2d 893, 898 (1st Cir.1983); Mila v. District Director, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S. Ct. 726, 74 L. Ed. 2d 952 (1983); Delgado v. INS, 473 F. Supp. 1343, 1348 (S.D. N.Y.1979). As a result, review of such decisions by the district courts is limited to determining from the administrative record whether the INS abused its discretion. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). The reviewing court may find abuse of discretion if an INS decision is "`[un]supported by reasonable, substantial ... evidence on the record considered as a whole.'" De Los Santos v. INS, 525 F. Supp. 655, 660 (S.D.N.Y.1981) (quoting Bastidas v. INS, 609 F.2d 101, 104 (3d Cir.1979)), aff'd, 690 F.2d 56 (2d Cir.1982). See also Wong Wing Hang v. INS, 360 F.2d 715, 717 (2d Cir.1966).
In reviewing INS decisions, however, the court must bear in mind two considerations. First, "control over matters of immigration is a sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 34, 103 S. Ct. 321, 330, 74 L. Ed. 2d 21 (1982). While the court "must not yield to the temptation to rubberstamp all decisions," Rosedale & Linden Park Co. v. Smith, 595 F. Supp. 829, 834 (D.D.C.1984), it must nonetheless give deference to the INS's interpretation of the statute that it is charged by law with administering and enforcing. See De Los Santos, 690 F.2d 56, 59-60 (2d Cir.1982); Nazareno v. Attorney General, 512 F.2d 936, 939-40 (D.C. Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 53, 46 L. Ed. 2d 49 (1975). In this regard, INS interpretations need not be the best possible interpretations, and the court should not overturn a decision "simply because it may prefer another interpretation of the statute," INS v. Jong Ha Wang, 450 U.S. 139, 144, 101 S. Ct. 1027, 1031, 67 L. Ed. 2d 123 (1981). See De Los Santos, 690 F.2d at 60. It is sufficient if the INS's interpretation is consistent with the language of the Act and is reasonably calculated to serve its purposes. Id.
Second, the plaintiff and beneficiary bear the burden of establishing the beneficiary's eligibility for the preference benefit. See 8 U.S.C. § 1154; In re Brantigan, 11 I. & N. Dec. 493, 495 (B.I.A.1966). In the case of petitions for sixth preference visa classifications, it is undisputed that this burden encompasses two requirements. Plaintiff must demonstrate its financial ability to meet the wage requirements of the certified job offer. See, e.g., Tongatapu Woodcraft Hawaii, Ltd., 736 F.2d at 1309-10; In re Great Wall, 16 I. & N. Dec. 142, 145 (A.R.C.1977); In re Sonegawa, 12 I. & N. Dec. 612, 614 (A.R.C.1967). Plaintiff must also demonstrate that the beneficiary meets the minimum requirements to perform the job satisfactorily. See, e.g., London Typographers, Inc. v. Sava, 628 F. Supp. 570 (S.D.N.Y.1986); In re Great Wall, 16 I. & N. Dec. at 145. Plaintiff contends that the INS abused its discretion in concluding that plaintiff had failed to carry its burden on either of these requirements. Given the narrow scope of our review and the administrative record before us, we cannot agree.
A. Petitioner's Financial Viability
As sole evidence of its ability to pay the proffered wage, plaintiff submitted to the Regional Commissioner its 1982 corporate income tax return, which reflected a gross income of $109,962 and a net taxable income of $5,717.[1] In denying plaintiff's *1054 petition, the Regional Commissioner concluded that since the proffered annual wage of $11,960 was more than twice plaintiff's taxable income, plaintiff had failed to carry its burden of proof. Plaintiff argues that the figure for taxable income on its tax return did not accurately reflect its net profit and that the Regional Commissioner should have included in that figure a $6,672 deduction that plaintiff had taken in depreciation expenses. Plaintiff further argues that the Regional Commissioner's conclusion impugns plaintiff's honesty and good faith and reflects a purely mechanical approach to evaluating plaintiff's petition that is inconsistent with the policy interests underlying the Act. We reject plaintiff's arguments.
Reliance on income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well-established by both INS and judicial precedent. See, e.g., Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984); In re Sonegawa, 12 I. & N. Dec. 612 (A.R.C.1967). Precedent also establishes that, in weighing a tax return as evidence of a prospective employer's financial viability, the INS may reasonably rely on net taxable income as reported on the employer's return. See Ubeda v. Palmer, 539 F. Supp. 647, 649-50 (N.D.Ill.1982), aff'd, 703 F.2d 571 (1983).
While plaintiff would have us distinguish Ubeda on the ground that the INS rested its determination in that case on the net taxable income of an individual rather than a corporation, we reject the distinction. In doing so, we remind plaintiff that it carries the burden of proof here. Protestations of honesty and good faith in filing the petition do not constitute proof. To the extent its tax return was open to differing interpretations with respect to plaintiff's actual ability to pay the proffered wage, the onus was on plaintiff to submit more conclusive evidence such as cash flow data or certified financial statements to clarify the income figures reflected on the return and thus apprise the INS more definitively of its financial position. Cf. In re Sonegawa, 12 I. & N. Dec. at 614-15 (income tax return supplemented by financial statement and other evidence of future viability). In this regard, we note that plaintiff provided the Regional Commissioner with no evidence of financial viability beyond the tax return and sought no opportunity to reopen the case, see 8 C.F.R. § 103.5, so that it might do so. Accordingly, we cannot say that the INS abused its discretion in denying plaintiff's petition on this ground.
B. Beneficiary's Qualifications
The Regional Commissioner also upheld the finding of the District Director that plaintiff had failed to establish that the beneficiary had four years' experience cooking Greek and Oriental dishes as specified in the DOL certification.[2] He concluded that "a letter from a former employer" failed to clarify prior errors in the record, and that "[a]bsent more convincing records such as payroll and tax records from the former employer, the conflicting statements do not establish the required experience." Plaintiff contends that defendant was in possession of sufficient information to demonstrate more than fifteen years of requisite experience. While we find this aspect of the INS decision somewhat more problematic, we are unwilling to conclude that it constituted an abuse of discretion.
In our view, the INS was justified in discrediting, "absent more convincing records," the conflicting evidence with respect to the beneficiary's experience as a cook "specializing in Greek cuisine" at El Toro Restaurant. The August 16, 1982 *1055 letter from Skandaliarius, which was submitted on plaintiff's first appeal and prompted the remand to the District Director, specified a period of employment at El Toro Restaurant that overlapped with the beneficiary's purported period of employment at Nassau Airport Caterers Ltd. While the February 28, 1984 affidavit from Skandaliarius corrected this miscalculation in dates for purposes of plaintiff's second appeal, we find it curious, as did the District Director and presumably the Regional Commissioner, that the beneficiary made no mention of his employment at El Toro in his statement of experience for the DOL certification. We find it equally curious that Skandaliarius likewise made no mention of plaintiff's employment at El Toro in his earlier October 31, 1980 letter.
Whether or not the INS credited the available evidence of the beneficiary's employment at El Toro Restaurant, however, that employment alone would not have satisfied the four-year experience requirement set forth in the DOL certification.[3] To satisfy that requirement, the INS had to consider as well the evidence offered in verification of plaintiff's employment by Nassau Airport Caterers. This evidence consisted of the unsworn October 31, 1980 letter from Skandaliarius written in his capacity as General Manager of Nassau Airport Caterers and the February 28, 1984 affidavit from Bernard Murphy, the Head Chef of International Airport Caterers.
Laying aside the discrepancy in the name of the beneficiary's purported employer, both these documents verify a period of employment dating from the mid-1960's to June 1978 that is consistent with the period specified in the beneficiary's own statement of experience. With respect to his actual experience cooking Greek dishes, however, only the Murphy affidavit touches on the beneficiary's qualifications. It describes the beneficiary as "a cook of international cuisine specialising [sic] in Greek Food [who d]uring the time he was employed at the International Airport Caterers ... was responsible for the preparation of food for 40 Greek members of staff."
Although we cannot discern from the Regional Commissioner's decision the weight that he attached, if any, to this affidavit, we believe that this statement, reasonably construed, leaves open to question whether the beneficiary was a Greek specialty cook for the entire thirteen years covered by the Murphy affidavit or for some shorter unspecified period of time. It also neglects to identify the Greek dishes that the beneficiary specialized in preparing. See 8 C.F.R. § 204.2(i) (affidavits attesting to experience must "describe in detail the duties performed by the [beneficiary]"). Given both the ambiguity in the Murphy affidavit and its scant detail, we believe that the INS could reasonably have found that this evidence was also insufficient to establish the requisite experience.
In challenging the denial of its petition for failure to establish the beneficiary's qualifications, plaintiff also contends that the INS's demand for more definitive documentary evidence, such as wage or tax records, is an "unbelievable burden" that cannot be justified under the Act. INS regulations state, however, that, beyond the specified information normally required in support of a particular petition, "[t]he Service may also require the submission of additional evidence," see 8 C.F.R. §§ 103.2(b)(1), 204.2(i), presumably as deemed necessary by the circumstances of a particular case. Based on the record presently before the court, we do not believe that the INS abused its discretion in insisting upon "more convincing records." In this regard, we note that "wage or tax records" were merely cited as examples of the kinds of documents that would have served to clarify the incomplete, conflicting *1056 or otherwise ambiguous evidence that plaintiff has submitted to date.
Finally, plaintiff contends that, before acting, the Regional Commissioner should have requested any additional documents that were material to his decision to affirm the District Director's denial of the petition. In support of its contention, plaintiff refers us to an INS regulation designated OI 204.4(d)(1) that states:
Statement of Qualifications of Alien form which must accompany each third-or sixth-preference petition, contains information concerning the beneficiary and his qualifications and must be supported by documentary evidence of those qualifications. If the beneficiary is clearly unqualified, the petition should be denied. When examination of the petition indicates that the petition may be approvable if the beneficiary is qualified, but that additional documents are required, the petition shall be returned to the petitioner with a request for those documents before further action is taken. (Emphasis added.)
Since we have been unable to locate this provision in the Code of Federal Regulations, we assume that it is contained in an agency handbook of uncodified instructions or procedures. Whatever its source, we are unwilling to find abuse of discretion because of the alleged failure of the Regional Commissioner to comply with this regulation. In view of the INS's finding that plaintiff failed to establish its own financial viability, the petition could not have been approved even if plaintiff had established the beneficiary's qualifications. Furthermore, we note that plaintiff made no effort to reopen the case at the agency level so that it might provide the Regional Commissioner with "more convincing records" and, even now, proposes to offer no more than an unauthenticated menu from El Toro Restaurant.
Accordingly, we decline to find that the INS abused its discretion in denying plaintiff's petition for failure to establish the beneficiary's qualifications for the position.
C. Due Process
In a passing reference, plaintiff contends that denial of its petition by the INS discriminates against plaintiff as a small business in violation of the due process clause. This contention is without merit. Plaintiff cannot demonstrate that it has an "an already acquired" property interest in or that it has "a legitimate claim of entitlement" to the preference visa. Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 2708-09, 33 L. Ed. 2d 548 (1972). In any event, since the granting of the petition and the issuance of a visa are within the discretion of the INS, due process is served, as it was here, as long as plaintiff was accorded notice and an opportunity to be heard and the INS did not abuse its discretion. See id. at 576 n. 15, 92 S. Ct. at 2708 n. 15.
CONCLUSION
For the reasons stated, plaintiff's motion is denied and defendant's cross-motion is granted. The complaint is dismissed.
SO ORDERED.
NOTES
[1] While plaintiff indicated in its petition that it had a net annual income of $95,000, it submitted no evidence to the District Director to support this statement or its ability otherwise to pay the proffered wage. Therefore, its 1982 corporate tax return was reviewed de novo by the Regional Commissioner.
[2] The application certified by the DOL required the beneficiary to have four years of experience "[p]reparing and cooking Oriental and Greek dishes, dolmades, mousaka, pastichio, souvlaki, gyro, making Greek salads, bake Greek and Oriental pastries, kataifi, baklava and others." It described the equipment that the beneficiary must operate as "knives, grinders, ovens, stoves, machettes [sic], rolling pins."
[3] Since experience is measured as of the filing date of the DOL application, see 8 C.F.R. 204.1(d)(2), which in this case was July 23, 1981, the beneficiary's experience as a Greek specialty cook at El Toro Restaurant, even if credited, would only verify three years of the requisite four-year requirement.
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549 A.2d 1039 (1988)
Sharon W. WELLS
v.
Stephen J. WELLS.
No. 86-306.
Supreme Court of Vermont.
May 6, 1988.
*1040 William M. Dorsch and Cynthia Heslen of Dorsch, Hertz & Wesley, Brattleboro, for plaintiff-appellant.
Thomas W. Costello and Ardith L. Baldwin of Thomas W. Costello, P.C., Brattleboro, for defendant-appellee.
Before ALLEN, C.J., HILL, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.
HILL, Justice.
Plaintiff appeals a May 23, 1986, modification order that awarded custody of her two minor daughters to defendant, their father. This order modified an original order granting custody to plaintiff as part of a divorce decree dated November 28, 1978. We reverse and remand for a rehearing.
Under the provisions of the original decree, defendant was given the right to visit his daughters "on weekends of his choice consistent with the health of the children." Defendant exercised his visitation rights only sporadically until his remarriage in 1983. When defendant sought to invoke the full extent of visitation rights, the parties were unable to agree upon a visitation arrangement under the terms of the original decree, leading to a motion to enforce the order filed by defendant. The parties thereafter stipulated to an amended visitation provision (dated November 21, 1983) whereby plaintiff retained custody of both children, and defendant was given more specific visitation rights.
Sometime in November, 1984, plaintiff refused to allow any further visitation unless defendant would agree to family counseling due to alleged problems the daughters were having with existing visitation. Defendant refused and again moved to enforce the amended visitation order. Plaintiff responded with a motion to modify the amended visitation order.
At hearings held before Judge Hudson in February and April of 1985, the parties, their children, and several other witnesses testified. In its order, filed May 10, 1985, the court denied plaintiff's motion for modification, found plaintiff in contempt for terminating defendant's visitation rights, and ordered her to pay defendant's attorney's fees to purge the contempt. The court rejected plaintiff's argument that the children did not wish to visit their father and found that they enjoyed a strong and loving relationship with him. Any discontent on the part of the children, according to the court, was attributable to the strife between the parents. Finding an absence of any legitimate basis for plaintiff's refusal to allow visitation, the court ordered visitation on the terms of the amended order to commence May 11, 1985.
*1041 Defendant made telephone arrangements with plaintiff on May 15th to travel to Georgia Plains from his home in St. Johnsbury in order to pick up his daughters for visitation on the weekend of May 25th. Upon his arrival that weekend, he discovered that plaintiff's house had been vacated, with no indication of where plaintiff and the children had gone. A letter from plaintiff arrived at his home that day, however, informing him that the family was relocating and would tell him where in a "reasonable time." Defendant did not learn of the whereabouts of plaintiff and the children until July 15, 1985, when he received a letter from plaintiff informing him that the family had settled in the Seattle, Washington area. The letter stated that the family had chosen to move to Seattle primarily because of better employment opportunity for plaintiff and her second husband.
On June 7, 1985, defendant filed a motion for a contempt order and for modification, seeking custody of the two children. On May 19, 1986, the court (Judge O'Dea presiding) held a hearing on these motions and issued an oral decision transferring custody of the two children to defendant. The court found that both plaintiff and defendant were fit and suitable parents, but that plaintiff's move to Seattle was carried out for the express purpose of depriving defendant of his visitation rights and the daughters of any relationship with their father. Stating that its decision was "based solely and exclusively on the best interest of these two children," the court concluded that the children's welfare would be best served by transfer of custody to the defendant. Plaintiff was given the right to have the children visit for a three-month period in the summer, as long as she continues to reside in Washington state.
Plaintiff raises three arguments on appeal: (1) that the evidence and findings do not support the court's conclusion that a "real, substantial, and unanticipated change of circumstances" had occurred; (2) that the findings do not support the conclusion that the best interests of the children would be served by a transfer of custody; and (3) that the trial court's findings were inadequate to support a change of custody.
Although findings of fact were not requested by the parties, the trial court made oral findings on its own initiative. At the outset, we note that these findings were imprecise and failed to deal adequately with all of the issues. The court's failure to make adequate findings of fact and conclusions of law makes our review of the issues substantially more difficult. Harrigan v. Harrigan, 135 Vt. 249, 250, 373 A.2d 550, 551 (1977). In a custody modification case such as this, there are typically numerous, subsidiary issues which are vigorously contested, relating to whether a change of circumstances has occurred and whether a change of custody would be in the best interests of the child. Comprehensive findings and conclusions on these questions would provide an invaluable aid to this Court in determining whether the legal standards governing custody modification have been met.
On the merits, the plaintiff first argues that because the court found that both plaintiff and defendant were fit and suitable parents capable of providing their children with the love, education, care and shelter that they need, the court could not conclude that there had been a real, substantial and unanticipated change of circumstances. Defendant responds by relying on the court's finding that plaintiff "has proven herself unfit in one particular regard, [in] that she is willing to deprive her two children of their father...." Defendant maintains that plaintiff's efforts to prevent visitation and her unannounced move to Washington state provide adequate support for a finding of changed circumstances.
A threshold showing of a real, substantial and unanticipated change of circumstances is necessary before a court may examine the merits of the parties' claims and reconsider the best interest of the child. Hayes v. Hayes, 144 Vt. 332, 335-36, 476 A.2d 135, 138 (1984). As this Court has previously recognized:
There can be no fixed standards to determine what constitutes a substantial change in material circumstances. The *1042 court is guided by a rule of very general application that the welfare and best interests of the children are the primary concern in determining whether the order should be changed.
Gerety v. Gerety, 131 Va. 396, 402, 306 A.2d 693, 695 (1973). The decision as to whether a change of circumstances has been established is within the discretion of the lower court. See Hayes, 144 Vt. at 337, 476 A.2d at 138.
This Court has never reviewed a changed circumstances ruling based on a custodial parent's obstruction of visitation. The courts of other jurisdictions, however, have held that willful, repeated interference with visitation rights may constitute a legally significant change of circumstance. See Birge v. Birge, 34 Or.App. 581, 585, 579 P.2d 297, 298 (1978); Rosenberg v. Rosenberg, 350 Pa.Super. 268, 272, 504 A.2d 350, 352 (1986). As the Rosenberg court stated: "To deliberately sabotage visitation rights calculated to serve the best interests of children bears adversely on the fitness of the custodial parent, whose conduct most certainly does not go unnoticed by the children." Id. at 273, 504 A.2d at 352-53. On the record before us, we cannot say that the lower court abused its discretion in finding a substantial change of circumstances.
On the other hand, we find significant problems with the lower court's ruling on the merits of the custody question. "Willful interference with court ordered visitations, no matter how deplorable, cannot be made the basis for an `automatic' change of custody." Id. at 274, 504 A.2d at 353. Here, the lower court abused its discretion by ordering a change of custody without considering whether the harm caused by plaintiff's obstruction of visitation outweighed the harm that could be caused by a change of custody. This Court and others have recognized the desirability of stability in custody arrangements because of the potential of harm due to shuttling the children between parents. Hayes, 144 Vt. at 336, 476 A.2d at 138; Rice v. Rice, 415 A.2d 1378, 1383 (D.C.1980); Jordan v. Jordan, 50 Md.App. 437, 443, 439 A.2d 26, 29 (1982).[*]
In the instant case, the court made no reference to the fact that the two daughters had resided continuously with their mother since the divorce in 1978, when their ages were three and six. Nor did it refer to the fact that the children had had little contact with their father, by his choosing, for the first five and one-half years following the divorce. The court failed to discuss the possible effect of the removal of the children from the plaintiff's household, the extent to which the children have adjusted to their new home in Washington, or the children's preferences. Because there is no indication that the court considered these questions, it was error to order a change of custody.
We are in steadfast agreement with the trial court's conclusion that it is against the public policy of this state to limit or destroy the relationship between parent and child. This Court, in Breznick v. Breznick, 127 Vt. 80, 82-83, 238 A.2d 643, 645-46 (1968), stated that
the law attempts to preserve, as far as it can, the relationship between each parent and child, in spite of the legal separation. Unless some sufficient opposing cause, relating to the welfare of the child, is shown, a visitation privilege of some sort is the right of a parent as a matter of course.
Nevertheless, the right of visitation cannot be enforced in a vacuum; it must be reconciled with the welfare of the child. We *1043 reverse and remand for a rehearing of defendant's motion to modify.
We also note that, at least in some circumstances, obstruction of court-ordered visitation can be redressed by means of contempt proceedings. 15 V.S.A. § 603. Here, the lower court failed to rule on defendant's motion for a contempt order, and the proceedings on remand should also include a ruling on that motion. Because of our disposition, it is unnecessary to address plaintiff's other arguments.
REVERSED AND REMANDED.
NOTES
[*] The importance of stability in the lives of children of divorced parents is also widely recognized in both legal and child developmental literature. See J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child 31, 37-39 (1973); Cole, The Issue of Stability in the Modification of Custody Decisions: Factor or Determinant?, 29 Vill.L.Rev. 1095, 1115-18 (1984); Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L.Rev. 55, 71-72 (1969). In fact, the policy in favor of finality of custody decrees, as a way of insuring continuity in the lives of children of divorced parents, is at the root of § 409 of the Uniform Marriage and Divorce Act, which has been adopted in nine jurisdictions. See Uniform Marriage and Divorce Act § 409, Commissioner's Note, 9A U.L.A. 212 (1979).
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178 Cal. App. 4th 1183 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
CUAUHTEMOC AGUSTIN REYES et al., Defendants and Appellants.
No. G038778.
Court of Appeals of California, Fourth District, Division Three.
October 30, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*1185 William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant Cuauhtemoc Agustin Reyes.
Kristin A. Erickson for Defendant and Appellant Arthur Frank Zavala.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Cuauhtemoc Agustin Reyes and Arthur Frank Zavala of kidnapping to extort a ransom. (Pen. Code, § 209, subd. (a); all further undesignated statutory references are to the Penal Code.) Reyes contends the trial court erred in denying his motion to suppress evidence, including the name of his cell phone carrier and records subsequently obtained from that carrier, after an employee at a private mail facility displayed to investigating officers the exterior envelope of a bill addressed to Reyes by the carrier. Reyes also challenges the admission of a lock pick set found in his possession, Zavala contests a pretrial photo identification as unconstitutionally suggestive, and both defendants contend the statutorily mandated life term for aggravated kidnapping amounts to cruel or unusual punishment under the California Constitution. As we explain, none of these contentions has merit, and we therefore affirm the judgment.
*1186 I
FACTUAL AND PROCEDURAL BACKGROUND
Around 9:00 p.m. on November 16, 2001, 30-year-old Farsheed Atef exited an electronics store in Fountain Valley. As he placed his purchases in the trunk of his car, he noticed a white van parked in the adjacent stall, with its door open. A man approached Atef asking if he would like to view merchandise in the van and, when Atef rebuffed him, the man and a compatriot tried to abduct him. Atef broke free after a struggle and ran, yelling for help. The occupants of a silver, two-door Honda pulled alongside to offer their aid, and Atef clambered into that car through an open passenger window. The Honda sped off.
Atef realized he had been set up when his would-be rescuers ignored his pleas to take him to a police station and instead turned down a deserted road. Atef kicked the steering wheel, forcing the Honda to veer and collide with a pole. The white van approached and parked behind the Honda. Atef escaped from the Honda and tried to flee, but two men tackled him to the ground. They forced him into the back of the van, blindfolded him, and took his wallet and keys.
Despite his blindfold, Atef discerned that one man from the Honda joined the two in the van, which entered the 405 Freeway heading south. His abductors emptied his pockets, tearing to shreds anything they found. Atef was very frightened. The van left the freeway after about 10 minutes, and pulled into a parking lot. Another man, who Atef later identified as Zavala, entered the van screaming that Atef had stolen money from someone and they were "here to get it back."[1] The van proceeded to another location, the parking lot of a Travelodge motel, where Zavala removed Atef's blindfold, showed him a photo album containing photographs of his business, residence, and family members, and threatened to harm Atef's mother if Atef did not cooperate.
The men walked Atef to a room in the motel, blindfolded him again, removed his shoes, and directed him to lie down on a bed. They disclosed he would be held until he withdrew $80,000 from his account the next day. His *1187 captors scoffed when he denied having such funds. Zavala attempted to verify the account balance, apparently telephonically, by using information on Atef's bank card and, when his attempts failed, he punched Atef in the head. Zavala accused Atef of providing an inaccurate Social Security number, and ordered him to produce it again. Atef, though in great fear, retorted that he believed Tamraz was behind the kidnapping and, in any event, could confirm his Social Security number. Zavala placed a call to someone who indeed verified the number.
The kidnappers forced Atef to identify the key to his office on the key chain they had taken from him, and also extracted from him the alarm code for the office security system and the location of his checkbook there. Zavala, who had punched him, threatened him, and made most of the demands for financial information, forced Atef to swallow a pill that made him drowsy. Before falling asleep, Atef overheard his captors laughing, ordering a movie, discussing plans to obtain some food and drugs, and he heard sniffing or snorting sounds as if they were using cocaine.
When Atef awoke early the next morning, Zavala was gone. Atef attempted to persuade his two remaining captors that the court had ruled the $80,000 was his and they should stop their involvement and free him. Zavala returned. Handing Atef a cell phone and dialing Atef's business, Zavala ordered Atef to obtain his business account number from his brother, Saeed. Atef complied without mentioning the kidnapping to Saeed. Dialing Atef's bank and again proving unable to obtain the account balance, Zavala became angry and punched Atef in the head. Zavala redialed Saeed, this time using the speaker function of the motel phone. Atef reobtained the number from Saeed, and Zavala was able to call the bank and determine Atef's account balance was not $80,000 but only $44,000.
Zavala told Atef they were taking him to the bank to withdraw the money and, if he did not comply, they would frame him for bank robbery. Zavala instructed Atef to write a note on an envelope stating "I'm here to rob the bank. I hold anthrax in an envelope, so do not scream, and put money in a bag." Zavala furnished Atef with an envelope containing white powder. Loading Atef into the van and transporting him to the bank, the kidnappers again warned him they would frame him for robbery and harm his mother if he "ma[d]e a wrong move" in the scheme. Zavala instructed him that if he could not withdraw the entire $44,000 in cash, he should get a cashier's check in the name of "John Smith" for the balance. Atef entered the bank. Without success, he attempted to gain the attention of security personnel by *1188 displaying his torn clothing to the bank's security cameras. Informed by the teller he could only withdraw $10,000 in cash, he obtained a cashier's check made out to "John Smith" for the rest. Attempting to arouse suspicion, he wrote "Anthony Tamraz Newport Travelodge" at the top of the cash receipt, and told the teller to provide the ticket "if anyone asks questions."
Atef left the bank and spotted a police car in the parking lot, but the officer departed. Atef did not see the kidnappers' white van. Meanwhile, the teller telephoned the police after noticing Atef remained in the parking lot for 15 or 20 minutes. The officer returned and, at first, fearing for his safety, Atef said nothing, but then disclosed the ordeal he had undergone. He was later reassured no harm had come to his family.
Investigators discovered Reyes had used an expired driver's license to rent the Travelodge room around 8:30 p.m. on the night of the kidnapping, about a half-hour before Atef was abducted. The address on the driver's license led police to a postal box at a Newport Beach company named Commercial Mail Receiving Agency. In speaking with an employee there, the officers learned Reyes might have cell phone records with AT&T Wireless, and determined his current residence. The officers obtained a warrant for Reyes's AT&T cell phone records, which revealed more than 50 calls between Reyes's phone and Zavala's phone during the kidnapping. Cell tower records placed Reyes along the route Atef traveled on the day of the kidnapping and at or near the Travelodge when the room was rented and when Atef was taken to the bank the next day. Zavala's phone records showed he called both Atef's business and bank during the kidnapping. Reyes cancelled his cell phone account a few days before police arrested him in December 2001.
The police apprehended Reyes and Derek Howard at Reyes's home. Howard's cell phone records and calls to and from Reyes placed him near the scene of the kidnapping and along the route Atef traveled earlier in the day. Searching a cabinet in Reyes's kitchen, the police found a photographic proof sheet and 35-millimeter negatives that included scenes of Reyes in leisure activities, but also photos of Atef and his residence and business. The police found a 35-millimeter camera and lens in Reyes's closet. They also found a lock pick set in the kitchen and photographs of Zavala in a kitchen mail slot. Elsewhere in the apartment, they discovered a black bag containing two hand-held radios and the paperwork to a police scanner. They also found a portable parabolic microphone and headset listening device, an item described *1189 as a "scope," and a business card for "Fox's Spy Outlet" advertizing a specialization in stun guns, protective sprays, and surveillance equipment. Tucked in a day planner in a cubby hole in the bedroom, police found Reyes's expired driver's license and a Disneyland identification card.[2] A backpack in the dining room contained Reyes's cell phone, pager, and his current driver's license. The police also found Howard's driver's license on the living room couch and his cell phone on the coffee table.
The police arrested Zavala at gunpoint at his apartment after he tried to escape when they announced they had a warrant for his arrest. Atef identified Zavala in a pretrial photo lineup as the kidnapper who punched him several times in the motel room and took charge of obtaining his financial information and funds from his bank. Atef also identified a man named David Vargas as one of the two men who first approached him from the white van and tried to abduct him. He identified Robert Cadavas as one of the men guarding him in the motel room. DNA evidence recovered from the motel room matched Vargas and Cadavas. Vargas and Cadavas pleaded guilty to simple kidnapping (§ 207) before trial, in exchange for eight-year prison terms. Howard also pleaded guilty to that charge and received a one-year jail term.
At trial, Reyes's sisters testified Howard was often at Reyes's home, even when Reyes was absent, and that Howard treated Reyes's property as his own. Reyes's defense was that Howard had set him up by using his cell phone and the other items recovered at Reyes's apartment to perpetrate the kidnapping, including falsely registering the motel room in Reyes's name. Reyes's handwriting expert testified the signature on the Travelodge registration form was "most likely" someone else's, though the expert acknowledged it was "possible" Reyes had signed the form. Zavala presented no evidence.
II
DISCUSSION
A. Suppression Motion
Defendant Reyes contends the trial court erred in denying his motion to suppress his cell phone records as the product of an illegal search. (U.S. Const., 4th Amend.) He argues investigating officers violated his expectation *1190 of privacy in the contents of the postal box he rented from Commercial Mail Receiving Agency, a private mail receiving company. Specifically, the officers asked an employee there if defendant received mail at the facility and the clerk responded by reaching into defendant's postal box, retrieving three letters, and displaying themwithout opening themto the officers. The outside of the envelope of one of the letters addressed to defendant indicated it was a bill from AT&T Wireless. Based on this allegedly illegal search, defendant complains the officers knew to direct a warrant for his cell phone records to AT&T Wireless instead of some other carrier, and subsequently obtained records showing calls to and from his mobile phone around the time of the kidnapping.
(1) Defendant's claim of error is without merit because he did not hold a reasonable expectation of privacy in the outside of envelopes addressed to him when the employee removed them from his postal box. The Fourth Amendment does not protect every subjective expectation of privacy, but rather only objective expectations that society is prepared to accept as legitimate and reasonable. (Rakas v. Illinois (1978) 439 U.S. 128, 141 [58 L. Ed. 2d 387, 99 S. Ct. 421].) Here, the officers did not search defendant's postal box or direct the clerk to reveal its contents. Rather, the clerk spontaneously displayed defendant's envelopes to the officers.
(2) The Fifth Circuit Court of Appeals explained in U.S. v. Osunegbu (5th Cir. 1987) 822 F.2d 472 (Osunegbu) why defendant's claim fails. First, because the information is foreseeably visible to countless people in the course of a letter reaching its destination, "an addressee or addressor generally has no expectation of privacy as to the outside of mail." (Id. at p. 480, fn. 3; accord, U.S. v. Choate (9th Cir. 1978) 576 F.2d 165, 175-177 (Choate); see also U.S. v. Hinton (9th Cir. 2000) 222 F.3d 664, 675 ["There is no expectation of privacy in the addresses on a package, regardless of its class."]; see generally 1 LaFave, Search and Seizure (4th ed. 2004) § 2.7(a), pp. 731-732.)
(3) Second, Osunegbu explained the Fourth Amendment does not apply to an employee's removal of mail from a postal box at a private mail facility because there, as here, "[t]he back of the box was open and the manager had complete and unfettered access to its contents. Although Mrs. Osunegbu argues that the manager had no authority to remove items from the box, she has pointed to no authorityeither in the specific rental contract or otherwisethat supports this position. Given that the box is used solely by the *1191 renter to collect mail that the manager has already seen and handled, no legitimate purpose would be served by such a limitation on the authority of the manager." (Osunegbu, supra, 822 F.2d at p. 479.)
The Osunegbu court concluded these circumstances prevented a reasonable expectation of privacy, noting "the manner in which private postal facilities are run virtually necessitates that the manager be allowed to reenter a box and remove the contents. If the manager originally placed a small package in the box and later received more mail that would not fit into the box because of the package, she would then have to reenter the box and remove the package, because a package would be easier to keep track of in the office area than loose mail. More fundamentally, and as illustrated by this case, the manager needs to be able to reenter a box, remove the contents, and then examine them if she has reason to believe that she has mistakenly placed into a box mail addressed to someone other than the renter of that box.... It is in the interests of both the Postal Service and private postal facilities that the facilities maintain the right to reenter the rented boxes to check for such mail, and [the] Osunegbus did not even attempt, either contractually or otherwise, to prevent the manager from reentering the box for this purpose." (Osunegbu, supra, 822 F.2d at pp. 479-480.)
(4) We perceive no basis on which to distinguish Osunegbu. There, as here, "the decisions as to when, and indeed whether, [fn. omitted] to put items into the box were left solely to the manager without any instructions...." (Osunegbu, supra, 822 F.2d at p. 479.) It followed that the manager "could have allowed anyone to watch her sort the mail, or to examine thoroughly the mail while it was in the office area." (Ibid.; see Choate, supra, 576 F.2d at p. 175 ["the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities"]; see also Gabriel v. State (Tex.Ct.App. 2009) 290 S.W.3d 426, 434 [store manager had authority to consent, as customer's agent, to search of postal box].) As in Osunegbu, nothing prevented personnel in defendant's mail facility from retrieving mail in his box and re-sorting it at the counter in public view, or providing access to anyone to areas where mail was sorted, stored for sorting, or held for a customer. As the Osunegbu court aptly observed, "a party has no reasonable expectation of privacy as to the outsides of items stored in a common area ...; such items are exposed both to those who have access to that area and to those, including law enforcement officers, who may be given permission to enter that area." (Osunegbu, supra, 822 F.2d at p. 479.) Similarly, there can be no reasonable expectation of privacy in the outside surface of items that may be held or handled in a common area.
True, the owner of the mail facility testified here that "[n]ormally we don't, you know, show any mail to anybody unless we have a search warrant or *1192 some court papers, you know, that tells us to show it." (Italics added.) But the trial court, as the trier of fact at the suppression hearing, could reasonably interpret the owner's ambiguous use of the word "normally" as a less-than-categorical statement that left open the possibility mail might be shown to others at an employee's discretion, or otherwise exposed to public view. (See People v. Glaser (1995) 11 Cal. 4th 354, 362 [45 Cal. Rptr. 2d 425, 902 P.2d 729] [reviewing court determines legality of search de novo, but defers to trial court's express or implied factual findings if supported by substantial evidence]; People v. Davis (2005) 36 Cal. 4th 510, 528 [31 Cal. Rptr. 3d 96, 115 P.3d 417] [appellate court must view record in denial of suppression motion "`in the light most favorable to the trial court's ruling'"].)
In any event, no evidence showed the mail facility promised or communicated a warrant-only policy to defendant. As in Osunegbu, no evidence showed defendant's contract with the mail facility included such a policy or that defendant instructed the mail facility to handle his mail a particular way or attempted to restrict employees from removing mail already placed in his box, which Osunegbu observed would be contrary to expected practice. Here, defendant nowhere negated the reality that mail facility operations routinely entail employees having continuous access to postal boxes.
(5) Defendant asserts "[h]e did not have any belief that the employees of the business would ever remove mail from the boxes or that law enforcement or anyone else could simply look at the mail in his box on request." But as Osunegbu explained, such a subjective belief is unreasonable, and therefore outside the Fourth Amendment's protection, given the manner in which mail facilities operate. In particular, those operations include ready employee access, at the employee's discretion, to the open side of the box to retrieve mail, during which time the employee may, whether purposefully or inadvertently, expose the outside of the mail to any number of persons. These circumstances preclude any reasonable expectation of privacy in any markings displayed on the outside of the envelope, such as those identifying AT&T Wireless as the addressor here. Consequently, the trial court did not err in denying defendant's suppression motion.
B.-D.[*]
*1193 III
DISPOSITION
The judgment is affirmed.
O'Leary, Acting P. J., and Ikola, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part IIB.-D.
[1] Atef testified at trial he ran a computer consulting business in Tustin named DNA Micro and that, some time before the kidnapping incident, a former account manager, Anthony Tamraz, left DNA Micro on "bad terms," filing an $80,000 civil suit against Atef.
[2] The clerk at the Travelodge motel had noted on Reyes's room registration card that he worked at Disneyland.
[*] See footnote, ante, page 1183.
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632 F. Supp. 1327 (1986)
M. Karen LEES, Plaintiff,
v.
WEST GREENE SCHOOL DISTRICT, Rick Barnhart, Roy Barnhart, John Berdine, Ronald Lohr, Glenn Kennedy, James Helphenstine, Thomas Braddock, and William Ziefel, Defendants.
No. C.A. 84-2367.
United States District Court, W.D. Pennsylvania.
April 11, 1986.
*1328 *1329 Stephen Jurman, McCann, Garland, Ridall, Burke, Pittsburgh, Pa., for plaintiff.
David Neuhart, Dickie, McCamey & Chilcote, Pittsburgh, Pa., C. Robert McCall, Waynesburg, Pa., for defendants.
OPINION
COHILL, Chief Judge.
Presently before us is Defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted. Fed.R. Civ.P. 12(b). Each individual defendant was a member of the School Board of Defendant West Greene School District (the "school district") during the relevant time period. The Complaint alleges claims under 42 U.S.C. §§ 1983 and 1985 as well as under Pennsylvania common law.
Background
Plaintiff was employed by the school district during the 1981-1982 school year as a permanent substitute for an English teacher who was on sabbatical that year. During the spring of 1982, the teacher whose position Plaintiff was filling decided to retire rather than resume her position with the school district. Due to the retirement of the permanent English teacher, a vacancy was created in the English department.
At a school board meeting in July, 1982, the board voted to transfer a teacher from the Social Studies department to fill the English department vacancy rather than hire a new teacher for the position. Plaintiff alleges that several parents and teachers in the school district attended this board meeting and spoke out against the transfer on educational grounds. As a resident of the district and the mother of students attending schools in the district, Plaintiff states that she attended this meeting and spoke in opposition to the transfer.
According to the Complaint, a second vacancy arose in the English department for the 1982-1983 school year. Plaintiff began the school year as the permanent substitute for that position pending the appointment of a permanent teacher to the position. Despite Plaintiff's claim that she was recommended by the Administration to fill this position, another candidate was hired instead.
For the remaining portion of the 1982-1983 school year, Plaintiff was employed by the school district as a substitute teacher. However, in August, 1983, the school board voted not to approve Plaintiff as a substitute teacher for the 1983-1984 school year. Consequently, her name was removed from the list of eligible substitutes.
Again in January, 1984, the school board voted not to approve Plaintiff as a substitute teacher in the school district. Plaintiff avers that Defendant Rick Barnhart, President of the school board, made a statement at this meeting to the effect that Plaintiff, at the July 1982 school board meeting, had not conducted herself properly and did not behave in a manner appropriate for a professional. *1330 According to the Plaintiff, President Barnhart's comments were made before the entire audience attending the school board meeting including several reporters and were subsequently published in at least two local newspapers.
Motion to Dismiss
When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must construe all allegations in the complaint liberally. Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 161 (3d Cir. 1984). The burden lies with the moving party to show that, without a doubt, "Plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S. Ct. 1848, 1853, 48 L. Ed. 2d 338 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957)); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980). This approach is mandated because, by its nature, a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) results in a determination on the merits at an early stage of Plaintiff's case. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).
First Amendment Claim
In her complaint, Plaintiff first alleges a cause of action under § 1983 for violations of her First Amendment right to free speech. She states that, in retaliation for speaking out against the transfer of a teacher from the Social Studies department to fill the vacancy in the English department, Defendants refused to hire her for a second vacancy which arose in the English department. In addition, they dropped her from a list of approved substitutes and refused to reinstate her on that list even though she was qualified as both a permanent and substitute teacher.
At the outset, we note that Plaintiff need not assert a property interest to state a claim under the First Amendment. Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S. Ct. 568, 574-75, 50 L. Ed. 2d 471 (1977). Even if Plaintiff had no constitutional right to a permanent teaching position, or to a hearing prior to being removed from the substitute list or prior to being denied reinstatement on that list, the government cannot deny Plaintiff any benefit on the basis of her exercising a First Amendment right.
[E]ven though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest in freedom of speech ... We have applied [this] principle regardless of the public employee's contractual or other claim to a job.
Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972).
A three-step process is applied to evaluate a public employee's claim of retaliation for exercising a First Amendment right: 1) Plaintiff must show that she was engaged in a protected activity; 2) Plaintiff must show that the activity in question was a substantial or motivating factor behind the adverse employment decision; and 3) Defendant, in order to defeat Plaintiff's claim, must show by a preponderance of evidence that, absent the protected activity, Plaintiff would have suffered the same adverse decision. Johnson v. Lincoln Univ., 776 F.2d 443, 450 (3d Cir.1985) (quoting Trotman v. Board of Trustees of Lincoln Univ., 635 F.2d 216, 224-25 (3d Cir.1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2320, 68 L. Ed. 2d 844 (1981)). The first step, determining whether the Plaintiff was engaged in a protected activity, is a question of law, not fact. Johnson, 776 F.2d at 454 (quoting Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S. Ct. 1684, 1690 n. 7, 75 L. Ed. 2d 708 (1983)).
In making a determination on whether certain speech is protected, a court must determine, as a threshold matter, whether the speech touches upon matters *1331 of legitimate public concern. If it does, then the court must perform a balancing test to see if the interests of the employee, as a citizen, in commenting upon the subject at issue outweigh the interests of the government, as the employer, in promoting an efficient work environment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968). It is at the balancing stage where the employee's personal stake or motive becomes relevant. Johnson, 776 F.2d at 450.
Speech touches upon matters of public concern when it can "fairly be considered as relating to any matter of political, social, or other concern to the community." Id., at 451 (quoting Connick v. Myers, 461 U.S. at 146, 103 S. Ct. at 1690). While matters which are mere extensions of personnel disputes involving purely personal concerns are not protected by the First Amendment, Connick, 461 U.S. at 148, 103 S. Ct. at 1690; Alinovi v. Worcester School Committee, 777 F.2d 776, 786-87 (1st Cir.1985); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1257 (7th Cir.1985); Day v. South Park Indep. School Dist., 768 F.2d 696, 697 (5th Cir.1985), mixed questions of private and public concern can be protected. Gonzalez v. Benavides, 774 F.2d 1295, 1301 (5th Cir.1985). Likewise, the fact that a statement evolves from a personal dispute does not preclude some aspect of it from touching upon matters of public concern. Johnson, 776 F.2d at 451.
Content, form and context as revealed by the whole record are important considerations which a court must evaluate in making a determination on whether certain speech is protected. Connick, 461 U.S. at 147-48, 103 S. Ct. at 1690-91; Johnson, 776 F.2d at 453. In an academic environment, speech should not be suppressed simply to avoid the expression of dissenting viewpoints which may cause some discomfort. Johnson, 776 F.2d at 453 (citing Trotman, 635 F.2d at 230). Teachers are in a unique position with regard to the operation of a school system. They are the members of the community most likely to have informed and definite opinions on questions of educational standards and academic policy. Pickering, 391 U.S. at 571-72, 88 S. Ct. at 1736-37. These types of questions clearly concern issues of public interest. Id.
In the case sub judice, the scant record before us provides little detail about the form of the statement made by the Plaintiff. Accepting the description in the Complaint as true, as we must for the purposes of this opinion, Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986), Mrs. Lee, as a concerned parent of children in the school district, attended a school board meeting. At this meeting, she and several other parents and teachers spoke in opposition to a board decision which they believed would adversely affect the academic standards of the school. Undoubtedly, the quality of education in public schools is a matter of public concern. The fact that Mrs. Lee could have a personal stake in the decision (if an English teacher were hired she might be considered as a candidate for permanent employment) does not convert the matter being debated to one of a purely personal nature. In fact, even if an employee's speech involves matters of largely personal concern, "that becomes relevant when the balancing is done, not in the determination whether the speech touches upon matters of public concern." Johnson, 776 F.2d at 451.
Having concluded that Plaintiff's speech touches upon matters of public concern, we proceed to the balancing test necessary to determine whether that speech is protected. At the outset, we recognize that the nature of the speech involved and the nature of the employment vary the deference to be accorded to the employer's judgment.
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate ... We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern. *1332 Connick, 461 U.S. at 151-52, 103 S. Ct. at 1692-93; Johnson, 776 F.2d at 454. Thus, where, as here, the speech in question relates to an area of substantial public interest, see Pickering, 391 U.S. at 571-72, 88 S. Ct. at 1736-37, the employer bears a heavier burden in providing a justification for his action. Connick, 461 U.S. at 152, 103 S. Ct. at 1692.
The factors which the court must evaluate to determine the nature of the working relationship and how the speech in question might effect that relationship can be summarized as follows: 1) whether the employee made statements which were directed against persons with whom she "would normally be in contact in the course of [her] daily work," Pickering, 391 U.S. at 569-70, 88 S. Ct. at 1735-36; 2) whether the statements had an adverse impact on the ability of an immediate supervisor to maintain discipline or on the harmony between the employee and her co-workers; 3) whether, viewing the employee's work situation realistically, the employee's loyalty and confidence are necessary to a successful work relationship; and 4) whether the statement interfered with the employee's proper job performance or with the overall operation of the school. Connick, 461 U.S. at 166-67, 103 S. Ct. at 1700-01 (Brennan, J, dissenting) (citing Pickering 391 U.S. at 568-73, 88 S. Ct. at 1734-37).
Applying these factors to the present situation, we note that the Plaintiff's speech criticized a decision made by the board, the school's governing body. As a teacher, Plaintiff would not normally be in contact with the board or its members on a regular, no less a daily, basis. In light of Plaintiff's averments that some of her co-workers also attended the board meeting to oppose the transfer proposal, Plaintiff's position on that issue would not likely create an adverse impact on her relationship with her fellow teachers. Likewise, it is unlikely that Plaintiff's viewpoint would have an adverse impact on an immediate supervisor's ability to maintain discipline.
We recognize Plaintiff's allegation in her complaint that the school board President made a public statement at a later board meeting in which he accused Plaintiff, because of her earlier speech, of improper conduct and behavior inappropriate for a professional. This statement alone does not necessarily imply that the nature of the speech itself was abusive, disruptive, accusatory or otherwise of the type which would create division and controversy in the work place. Patkus, 769 F.2d at 1258. Rather, it only expresses an opinion based on another individual's perception of appropriate and professional conduct. The President may believe that any public criticism of board decisions by teachers is inappropriate.
As in Pickering, we believe the crucial factor weighing in favor of the Plaintiff is the lack of proximity in the school hierarchy between a teacher and the school board. 391 U.S. at 569-70. No persuasive argument can be made that the Plaintiff's work relationship with the school board requires her loyalty and confidence in order for her to properly function as a teacher. Certainly, it is unlikely at best that her job performance was seriously undermined by her speech. See Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir.), cert. denied, 431 U.S. 937, 97 S. Ct. 2649, 53 L. Ed. 2d 255 (1977). We do not believe Defendants raised any justification which outweigh Plaintiff's free speech interests.
As a matter of law, Plaintiff's speech was protected. Factual issues inappropriate for determination by the court preclude dismissal with regard to the questions of whether Plaintiff suffered an adverse employment decision as a result of her speech and whether Plaintiff would have suffered that same adverse decision if she had not engaged in the protected activity.
Property Interest
Plaintiff next alleges a violation of her Fourteenth Amendment rights. She does not specify which rights she believes she was deprived of as a result of Defendant's actions. In fact, it is unclear from Plaintiff's Complaint and brief in opposition to *1333 the present motion whether Plaintiff is cognizant of the differences between the First and Fourteenth Amendments. However, we will assume from the general tenure of Plaintiff's arguments that she is alleging deprivation of a property interest in having her name on the substitute list or in being hired to fill the vacancies in the English department.
A property interest in employment may arise by contract, state law or local policy and practice. Perry v. Sinderman, 408 U.S. 593, 602-03, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570, 580 (1972). A mere subjective expectancy, however, does not create a property interest. Plaintiff must show a legitimate claim of entitlement to state a property interest protected by the due process requirements of the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972).
As a substitute teacher, Plaintiff had no contractual right to employment either in a substitute or permanent position. Likewise, Pennsylvania law does not create a property interest in either continued retention of an individual on a substitute list or promotion from the substitute list to a full time position. Pennsylvania does provide some due process rights to "temporary professional employe[es]," 24 Pa.Stat.Ann. § 11-1108 (Purdons 1962 & Supp.1985), as that term is defined in 24 Pa.Stat.Ann. § 11-1101(3). However, Plaintiff does not contend nor do we find that she was ever a "temporary professional employee." Consequently, the school district was entitled to terminate Plaintiff without affording her a right to a hearing. See, Bitler v. Warrior Run School Dist., 62 Pa.Commw. 592, 437 A.2d 481 (1981); Pottsville Area School Dist. v. Marteslo, 55 Pa.Commw. 481, 423 A.2d 1336 (1980).
Plaintiff does not allege that the school district had a policy or practice with regard to retaining teachers on the substitute list which would create a protected property interest. This case is clearly distinguished on its facts from Stana v. School Dist. of City of Pittsburgh, 775 F.2d 122 (3d Cir. 1985) wherein the Court found a property interest in a teacher's position on an eligibility list. In Stana, the school district had a policy which was communicated to its teacher and which provided no room for discretionary removal of teachers from its eligibility list. Id., at 126. The teacher's position on the list entitled her to preferred appointment, promotion and transfer opportunities. Removal could not be effected without notice and an opportunity to be heard. Id., at 123-24. Unlike the teacher in Stana, Plaintiff does not contend, nor does she state facts from which this Court could surmise, that the school district had a policy with regard to its substitute list which would entitle her to preferred consideration for permanent positions or to notice and an opportunity to be heard prior to removal from the list.
Since we find no property interest created by contract or state law, and no implied rights created through local or school district policy, we must dismiss Plaintiff's Fourteenth Amendment claim.
Slander
Plaintiff alleges that the school board President made a defamatory statement about her during the January, 1984 board meeting at which the board voted not to approve Plaintiff for the substitute teachers' list. The statement attributed to the board President criticized Plaintiff's conduct at the July, 1982 school board meeting as improper and inappropriate for a professional. According to the Complaint, at least two newspapers who had reporters assigned to cover the board meeting published the President's comment. Plaintiff claims that the comment harmed her reputation both personally and professionally and thus constitute slander per se. Defendant argues that the statement at issue is pure opinion incapable of defamatory meaning.
Pennsylvania has adopted the definition of defamation set forth in the Restatement (Second) of Torts § 559 (1977); Redco Corp. v. CBS, Inc., 758 F.2d 970, 971 (3d Cir.1985).
*1334 A communication is considered defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962). Under Pennsylvania law, plaintiff has the burden of proving, when the issue is properly raised:
1) The defamatory character of the communication.
2) Its publication by the defendant.
3) Its application to the plaintiff.
4) The understanding by the recipient of its defamatory meaning.
5) The understanding by the recipient of it as intended to be applied to the plaintiff.
6) Special harm resulting to the plaintiff from its publication.
7) Abuse of a conditionally privileged occasion.
42 PA.Cons.Stat.Ann. § 8343. Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1077-78 (3d Cir.), cert. denied, ___ U.S. ___, 106 S. Ct. 182, 88 L. Ed. 2d 151 (1985); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456, 461 (1984). Whether or not the speech is defamatory in nature or capable of defamatory meaning is a matter of law for the court to decide. Redco, 758 F.2d at 971; Marcone, 754 F.2d at 1078; Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213, 214 (1981), cert. denied, 457 U.S. 1134, 102 S. Ct. 2961, 73 L. Ed. 1351 (1982). If the court makes a determination that the speech could be understood as defamatory, then it is for a jury to decide whether it was in fact understood as such by the recipient. Agriss, 483 A.2d at 461.
For a statement of opinion to be defamatory in nature, plaintiff must demonstrate to the court that the opinion stated implies the existence of undisclosed defamatory facts. Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983), cert. denied, 466 U.S. 970, 104 S. Ct. 2341, 80 L. Ed. 2d 816; Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583, 587 (1980). See Restatement (Second) of Torts § 566. A statement of "pure" opinion, no matter how unjustified, unreasonable or derogatory, is not defamatory. See Hoover v. Peerless Publications, Inc., 461 F. Supp. 1206, 1209-10 (E.D.Pa.1978). Restatement (Second) of Torts § 566 comment c.
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscious of judges and juries but on the competition of other ideas.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 3006-07, 41 L. Ed. 2d 789, 805 (1974).
In the present case, the President of the school board merely expressed his opinion on Plaintiff's behavior at the July, 1982 board meeting. His statement did not imply the existence of any undisclosed defamatory facts. It implies nothing beyond his own opinion that Plaintiff did not act in a manner proper and appropriate for a teacher. This impression of Plaintiff's professional conduct is, by its nature, subjective and based on nothing more than the President's own perceptions of Plaintiff's actions at that meeting. See Beckman, 419 A.2d at 587 (evaluation of academic performance is necessarily subjective and akin to opinion). Plaintiff must rely on the opinion of others present at that meeting to rebut the President's statement.
Since we find the communication at issue to be pure opinion incapable of defamatory meaning, we must grant dismissal on this count. We note for the record that Plaintiff's slander per se argument under § 573 of the Restatement (Second) of Torts cannot save her defamation count. Slander per se, as defined in § 573, provides only that, if the statement is in fact defamatory and does impugn plaintiff's professional reputation, plaintiff need not prove special harm. Statements of pure opinion which *1335 are not defamatory, cannot be slanderous per se. See Gertz, 418 U.S. at 339-40, 94 S. Ct. at 3006-07.
Pennsylvania Constitutional Claim
In addition to Plaintiff's § 1983 claim based on a violation of her First Amendment rights, Plaintiff alleges in Count V of her Complaint that Defendants "acted improperly and unlawfully, in violation of the Constitution and law of the Commonwealth of Pennsylvania." Plaintiff apparently believes that state law provides a separate cause of action for violations of free speech. Brief in Opposition to Motion to Dismiss, at P. 6. In support of this count, Plaintiff cites only two cases, Sacks v. Commonwealth Dept. of Public Welfare, 502 Pa. 201, 465 A.2d 981 (1983) and In Re Chalk, 441 Pa. 376, 272 A.2d 457 (1971); neither of these discuss the merits of a free speech action under the state constitution or state law. Both cases are decided on the basis of the First Amendment alone.
The Pennsylvania constitution, Article I, § 7, contains a free speech clause similar to the First Amendment. It provides Plaintiff with no greater rights or protections than those guaranteed by the First Amendment. Likewise, it contains no provision, express or implied, which creates a private right of action for violations of an individual's right to free speech. Pendrell v. Chatham College, 386 F. Supp. 341, 344 (W.D.Pa.1974). We have found no Pennsylvania case law or statute which implies a private right of action under the state Constitution. Since Plaintiff would have no greater rights under Article I, § 7 than under the First Amendment, charging a jury on both would only prove confusing and redundant. We can glean no other basis to support Plaintiff's claim under Count V from either the Complaint, Plaintiff's brief or Pennsylvania law. Thus, we will also dismiss Count V.
§ 1985(3)
In the jurisdictional section of her Complaint, Plaintiff mentions § 1985(3). Although she does not again mention that section specifically, she does refer to a conspiracy to deprive her of "the equal protection and privileges of the law" in Count IV. We presume this count is based on § 1985(3). To state a claim under this section, Plaintiff must plead 1) the existence of a conspiracy; 2) to deprive her of the equal protection of the law; 3) which conspiracy was motivated by racial or other class-based invidiously discriminatory animus; 4) that Defendants committed an overt act in furtherance of the conspiracy and; 5) that Plaintiff was injured in her person or property and deprived of rights and privileges guaranteed by the constitution. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971); Sellers v. Local 1598, Dist. Council 88, American Fed'n of State, County and Mun. Employees, 600 F. Supp. 1205, 1211 (E.D.Pa.1984); Armstrong v. School Dist. of Philadelphia, 597 F. Supp. 1309, 1313 (E.D.Pa.1984).
Even reading the allegations of Plaintiff's Complaint liberally, we cannot discern facts from which we could infer any class-based invidiously discriminatory animus. Jennings v. Shuman, 567 F.2d 1213, 1221 (3d Cir.1977). At best, Plaintiff has alleged facts supporting a conspiracy against her based on an opposing view which she and others expressed about a school board policy decision. While Plaintiff and the others espousing her viewpoint may constitute a class, the Supreme Court has held that § 1985(3) cannot be construed broadly enough to reach such animus. Carpenters v. Scott, 463 U.S. 825, 834-39, 103 S. Ct. 3352, 3358-61, 77 L. Ed. 2d 1049, 1058-61 (1983). Therefore, we conclude that Count IV of Plaintiff's Complaint must also be dismissed.
Conclusion
We have carefully considered each possible claim raised in the Complaint. For the reasons stated above, we will deny Defendant's Motion to Dismiss with respect to the § 1983 claim based on the First Amendment but grant the Motion as to all other claims.
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408 S.E.2d 757 (1991)
104 N.C. App. 194
STATE of North Carolina
v.
Kenneth Emory HARGROVE.
No. 9018SC846.
Court of Appeals of North Carolina.
October 1, 1991.
*758 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Sylvia Thibaut, Raleigh, for State.
Malcolm Ray Hunter, Appellate Defender by Asst. Teresa A. McHugh, Raleigh, for defendant-appellant.
WYNN, Judge.
From a judgment imposing an eighteenyear sentence following the defendant's conviction of voluntary manslaughter, defendant appeals. For the reasons that follow we find no reversible error and affirm the trial court's decision.
I
At trial, the evidence produced by the State tended to establish that in the early evening of May 3, 1989, the defendant, Kenneth Emory Hargrove, returned to his home where he lived with his father, Martin Hargrove. The defendant asked his father for money; after refusing to give his son money, an altercation ensued between the father and son during which the defendant obtained a crowbar from a truck parked near the home and returned inside where he beat his father with the crowbar causing his death from injuries to his brain due to multiple blunt force trauma.
The defendant testified in conflict to the State's evidence that before the altercation occurred, he thought his father was "going to get his gun" so the defendant picked up the crowbar from a table in the room where his father sat and beat his father in self-defense. The defendant entered a plea of not guilty to the murder charge and was convicted of voluntary manslaughter and sentenced to eighteen years imprisonment. From his conviction and sentence, he appeals.
II
The defendant first assigns error to the trial judge's instruction that if the jury found "the defendant went outside and returned with the crowbar and struck his father with the crowbar, then any fear the defendant had of imminent death or imminent great bodily harm from his father would not be reasonable."
In State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983), the North Carolina Supreme *759 Court set forth the threshold inquiries for determining whether a defendant is entitled to a self-defense instruction. There, the court held that two questions must be answered in the affirmative:
(1) is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and
(2) if so was that belief that it was necessary to kill his adversary in order to protect himself reasonable?
Id. at 148, 305 S.E.2d at 553 (1983).
In short, a defendant is only "entitled to an instruction on self-defense if there is any evidence in the record that it was necessary, or reasonably appeared to be necessary, to kill in order to protect himself from death or great bodily harm." State v. Spaulding, 298 N.C. 149, 156, 257 S.E.2d 391, 395 (1979) (citing State v. Johnson, 166 N.C. 392, 81 S.E. 941 (1914)).
In the case at hand, to be sure, there was evidence presented by the defendant that his father was a violent man; his father shot and killed his mother and shot his brother some years earlier and that his father had threatened, on more than one occasion, to shoot the defendant. However, under the set of facts that involved the defendant going out to a parked vehicle and returning with a crowbar there was no evidence on which the jury could have found the defendant's actions were necessary to protect himself nor were his actions reasonable under the circumstances. Therefore, defendant was not entitled to a self-defense instruction under these facts.
III
The defendant next assigns error to the use of four prior convictions; a 1971 malicious damage to property charge, a 1977 assault with a deadly weapon (inflicting injury) charge, a 1984 miscellaneous larceny charge, and a 1989 concealing merchandise charge.
These convictions arose during two distinct phases of the trial. The 1984 and 1989 convictions were introduced in the case in chief, on cross-examination, to impeach the defendant. The defendant appeared without the benefit of counsel in both convictions because he executed a waiver of counsel. Finally, during the sentencing phase of the trial, his convictions were found to be statutory factors in aggravation and were used to enhance the defendant's sentence.
Because this appeal confronts separate uses of the same convictions, it is necessary to discuss each use individually.
Use of the Convictions in the Case in Chief
On cross-examination of the defendant, the State used defendant's 1984 and 1989 larceny convictions for impeachment purposes. N.C.R. Evid. 602 allows a prior conviction to be introduced for impeachment purposes, if the conviction was punishable by confinement of more than 60 days. The defendant contends that these convictions were obtained in violation of his right to counsel and as such should have been suppressed. Earlier the defendant moved to have the convictions suppressed and the trial court held that they were admissible because in both instances, the defendant had executed a waiver of counsel.
N.C.Gen.Stat. § 15A-980 controls when a defendant has the right to suppress the use of a prior uncounseled conviction obtained in violation of the defendant's right to counsel. It states that:
A defendant has the right to suppress the use of a prior uncounseled conviction that was obtained in violation of his right to counsel if its use by the State is to impeach the defendant or its use will: (1) increase the degree of crime of which the defendant would be guilty; or (2) result in a sentence of imprisonment that otherwise would not be imposed; or (3) result in a lengthened sentence of imprisonment.
Id.
When a defendant makes a motion to suppress the use of a prior conviction, the burden is on the defendant to prove by the preponderance of the evidence that the conviction was obtained in violation of his *760 right to counsel. To prevail on a motion to suppress, he must prove "`that at the time of the conviction he was indigent, had no counsel, and had not waived his right to counsel.'" State v. Brown, 87 N.C.App. 13, 22, 359 S.E.2d 265, 270 (1987) (citing State v. Haislip, 79 N.C.App. 656, 658, 339 S.E.2d 832, 834 (1986)). The defendant must meet his burden on all three facts.
Furthermore, where the defendant proceeds on a waiver of counsel, N.C.Gen.Stat. § 15A-1242 requires a thorough examination of the waiver. The requirements are set out below:
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C.Gen.Stat. § 15A-1242 (1990).
In State v. Warren, 82 N.C.App. 84, 345 S.E.2d 437, (1986). This court held that, "When a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary...." Id. at 89, 345 S.E.2d at 441.
In the case at hand, the trial court found in both the 1984 and 1989 convictions, "The defendant can read. The defendant is competent and literate." The trial court found that the defendant had executed a "knowing and voluntary" waiver of his right to counsel in both of the prior convictions in question. Moreover, each conviction was accompanied by the aforementioned certification which indicated that the district court judge complied with the mandates of § 15A-1242.
We conclude that the defendant failed to carry his burden, to show by a preponderance of the evidence, as required by § 15A-980, that he show "he had not waived his right to counsel." The trial court properly allowed the 1984 and 1989 convictions to be admitted into evidence.
Use of the Convictions at Sentencing
Regarding the use of the defendant's convictions during the sentencing phase of the trial, the judge found that each conviction was an aggravating factor sufficient to support enhancement of the defendant's sentence. The defendant contends that this finding was in error because, when defendant was convicted in 1971 and 1977, the trial court incorrectly found that the defendant was not indigent and chose not to retain private counsel. N.C.Gen.Stat. § 15A-980 controls these convictions. Again the defendant had the burden of showing that (1) he was not indigent (2) he had no counsel and (3) he had not waived his right to counsel.
The defendant introduced evidence that he was not employed at the time of arrest. However, the defendant testified that at the time of conviction and sentencing on March 9, 1972 he was paid about six dollars an hour; worked forty hours a week; and had expenses of $75.00 to $100.00 a week. Additionally, he testified that at the time of the 1977 conviction, he was earning about $217.00 a week "when he worked." The defendant also testified that he could not afford an attorney and never inquired into the cost of private representation.
"Our scope of review on an order for a motion to suppress is limited to `determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.'" Brown, 87 N.C.App at 23, 359 S.E.2d at 270. After a careful review of record, there was evidence to support the findings of the trial court and as such the decision to use the defendant's prior convictions as statutory factors to aggravate his sentence was not in error.
*761 IV
Finally, the defendant assigns error to the trial judge's finding as a nonstatutory factor in aggravation that the defendant lacked remorse.
Our Supreme Court has recognized the propriety of finding as a nonstatutory factor in aggravation the lack of remorse on the part of the defendant. See State v. Parker, 315 N.C. 249, 337 S.E.2d 497 (1985). The State has the burden of proving the existence of a nonstatutory aggravating factor by a preponderance of the evidence. The State must also show that it is reasonably related to the purposes of sentencing. N.C.Gen.Stat. § 15A-1340.4(a) (1988); State v. Turner, 103 N.C.App. 331, 406 S.E.2d 147, (1991) (citing State v. Canty 321 N.C. 520, 364 S.E.2d 410 (1988). Moreover, regarding this particular nonstatutory factor, in State v. Parker, 315 N.C. 249, 257, 337 S.E.2d 497, 502 (1985), the Supreme Court stated;
Almost always remorse occurs, if at all, sometime after the commission when defendant has had an opportunity to reflect on his criminal deed. If after such time for reflection remorse does not come, and there is evidence of this fact, then lack of remorse properly may be found by the sentencing judge as an aggravating circumstance.
Id.
In the case at hand, the State introduced evidence that after the defendant beat his father, he visited a local bar, drank a beer and was gone for at least an hour before returning home. Even more telling is the fact that at the police station, four hours after beating his father, the defendant told an officer that his father "got what he deserved." We find that this evidence was enough to support the aggravating circumstance of lack of remorse found by the trial court.
V
For the foregoing reasons, we find no error in the trial and sentencing of the defendant.
No error.
ARNOLD and JOHNSON, JJ., concur.
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333 S.E.2d 505 (1985)
Samuel COLON and Russell L. Schelb, Jr., Plaintiffs,
v.
F.D. BAILEY and wife, Sue Bailey, and Robert C. Pressley, Defendants,
v.
GREAT AMERICAN INSURANCE COMPANY, Proposed Intervenor.
No. 8428SC1307.
Court of Appeals of North Carolina.
September 3, 1985.
*506 Morris, Golding and Phillips by Thomas R. Bell, Jr., Asheville, for plaintiffs and proposed intervenor.
Michael T. Moore, Asheville, for defendants.
HEDRICK, Chief Judge.
Plaintiffs and Insurance Company contend the court erred in granting summary judgment for defendants. G.S. 1A-1, Rule 56(c) permits summary judgment if no genuine issue exists as to any material fact and a party is entitled to judgment as a matter of law. Plaintiffs and Insurance Company argue that a genuine issue of fact has been raised as to whether the agreement was executed for the purpose of releasing all claims or merely those relating to the U.S.F. & G. proceeds. They contend that this issue is raised in plaintiffs' answer to defendants' interrogatory, which states that they executed the release as "part of the settlement with U.S.F. & G. relative to their coverage on the contents of the restaurant." We hold that plaintiffs have not raised a genuine issue of material fact.
The express language of the agreement signed by plaintiffs reads in pertinent part:
1. Lessor does hereby release and discharge Lessee from all claims, suits, causes of action and charges arising out of that lease dated September 1, 1976 above referred to and the possession of the premises by the Lessee up to and including the date hereof.
2. Lessee does hereby release and discharge Lessor from all claims, suits, causes of action and charges arising out of that lease [dated] September 1, 1976 above referred [to] and the possession of the premises by Lessee up to and including the date hereof.
We find this language plain and unambiguous. Construction of the agreement thus is a matter of law for the court. Robbins v. Trading Post, 253 N.C. 474, 478, 117 S.E.2d 438, 441-42 (1960). Where contract terms are explicit, as here, the court determines the legal effect and enforces the contract as written by the parties. Kent Corporation v. Winston-Salem, 272 N.C. 395, 401, 158 S.E.2d 563, 567 (1968). Contrary to plaintiffs' and Insurance Company's argument, parol evidence as to the facts surrounding execution of the release may not be introduced to contradict or vary the written terms. Hoots v. Calaway, 282 N.C. 477, 486, 193 S.E.2d 709, 715 (1973); see 2 H. Brandis, North Carolina Evidence Sec. 251 (2nd rev. ed. 1982).
Here the court correctly determined that the mutual release bars plaintiffs' suit against defendants for breach of the lease and negligent maintenance of equipment. See Cowart v. Honeycutt, 257 N.C. 136, 139, 125 S.E.2d 382, 384 (1962). Since plaintiffs cannot surmount this affirmative defense, defendants are entitled to judgment as a matter of law. See Bernick v. Jurden, 306 N.C. 435, 440-41, 293 S.E.2d *507 405, 409 (1982). Thus summary judgment was properly granted.
Plaintiffs and Insurance Company contend that the court erred in denying Insurance Company's motion to intervene because Insurance Company met the requirements of G.S. 1A-1, Rule 24(a)(2), which permits intervention as of right. Rule 24(a)(2), however, permits one who has met its requirements "to intervene in an action...." (Emphasis supplied.) Here, summary judgment having been properly granted for defendants, "there is no controversy in which [Insurance Company] may intervene." Childers v. Powell, 243 N.C. 711, 713, 92 S.E.2d 65, 67 (1956). "Stated in another way, `intervention' is the admission ... of a person not an original party to the pending legal proceeding...." Strickland v. Hughes, 273 N.C. 481, 485, 160 S.E.2d 313, 316 (1968) (emphasis supplied). No proceeding is pending here.
We thus hold that summary judgment for defendants and denial of Insurance Company's motion to intervene were proper.
Affirmed.
WELLS, J., concurs.
PHILLIPS, J., dissents.
PHILLIPS, Judge, dissenting.
In my opinion the trial court erred both in denying Great American's motion to intervene and in entering summary judgment against plaintiffs, after being apprised of Great American's interest in the suit and their right to participate in it. When Great American moved to intervene the action was still pending, the order of summary judgment dismissing the action not being entered until nearly four months later, and since Great American's motion shows that it has a substantial interest in the transaction which is the subject of the suit, is so situated that the disposition of the action will impair its ability to protect that interest and its interest is not being adequately represented by plaintiffs, it has the absolute right to intervene under the terms of Rule 24(a)(2). Furthermore, the majority seems to be of the view that since the release bars plaintiffs from further pursuing their claim against defendants that that necessarily ends the matter. Such is not the law, as I understand it. When a third party tort feasor has knowledge of an insurer's interest in the claim, his settlement with the insured is no defense to a suit by the insurer. Nationwide Mutual Insurance Co. v. Canada Dry Bottling Co., 268 N.C. 503, 151 S.E.2d 14 (1966). The defendant appellees argue in their brief that when the settlement was made they had no knowledge of Great American's interest in the claim; but whether that is so is a question that remains to be adjudicated.
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4 So.3d 677 (2009)
TOMPKINS
v.
STATE.
TOMPKINS
v.
McCOLLUM.
Nos. SC09-215, SC09-233.
Supreme Court of Florida.
February 11, 2009.
Decision without published opinion. All Writs dismissed.
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77 Md. App. 77 (1988)
549 A.2d 403
P.V. PROPERTIES, INC.
v.
ROCK CREEK VILLAGE ASSOCIATES LIMITED PARTNERSHIP.
No. 22, September Term, 1988.
Court of Special Appeals of Maryland.
November 2, 1988.
Joseph D. Gallagher (Cynthia A. Raposo and Gill & Sippel, on the brief), Rockville, for appellant.
James H. Hulme (Leonard S. Goodman and Arent, Fox, Kintner, Plotkin & Kahn, on the brief), Bethesda, for appellee.
Argued before GILBERT, C.J. and ALPERT, J., and JAMES F. COUCH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.
ALPERT, Judge.
Writing upon a "clean slate," we are called upon to decide whether a tenant in a shopping center is entitled to an itemized listing of common area maintenance expenses where the lease is silent in that respect and the landlord is unwilling to provide the desired information. Appellant, tenant, P.V. Properties, Inc. ("P.V."), appeals the ruling against it by the Circuit Court for Montgomery County, in its dispute with appellee, landlord, Rock Creek Village Associates Limited Partnership ("Rock Creek"), over its demand for an itemized listing of common area maintenance expenses.
P.V. was the assignee of a leasehold interest of a shopping center store whereby it agreed to pay a proportionate share of the cost of maintaining the common areas of the shopping center. Rock Creek was the successor to the original landlord. Under the terms of the lease the tenant agreed to reimburse the landlord for its pro rata share of the total actual cost of maintenance. The tenant, appellant, requested that the landlord itemize the costs, and the landlord refused, contending that the lease did not require it to do so. Appellant filed an action for declaratory judgment and, in addition, sought alternative relief in the form of an accounting. The trial court denied both counts, ruling that the terms of the contract were clear, and do not require the landlord to provide the tenant with an itemized listing of common area maintenance expenses.
P.V. has raised three issues on appeal:
1. Whether the terms in the lease which require the landlord to furnish tenant a written statement setting both the "total actual costs" incurred by the landlord in operating and maintaining the common areas require that the landlord furnish the tenant with evidence verifying each expense charged.
2. Whether the tenant is entitled to an accounting from the landlord of the items assessed against it for common area maintenance where all the information relating to those charges is in the exclusive control of the landlord.
3. Whether the court erred in refusing to admit evidence related to landlord's assessment of common area maintenance fees to tenants other than P.V.
FACTS
On June 16, 1970, Crispin Corporation, landlord, and Suburban Restaurants, Inc., tenant, entered into an agreement of lease for a store in the Rock Creek Village Shopping Center. Rock Creek has succeeded to Crispin Corporation's interest as landlord under the lease and P.V. has succeeded to Suburban Restaurant Inc.'s interest as tenant under the lease.
The lease requires Rock Creek, inter alia, to operate and maintain the common areas of the shopping center. It also provides that the tenant will reimburse the landlord on a pro rata basis for the costs incurred in maintaining the common areas. Additionally, the tenant is to pay "... as additional rent, the sum of Forty-five Dollars ... per month" as a credit against tenant's pro rata share of the common area costs. The lease sets forth the types of expenses which constitute the common area maintenance costs.
All records concerning the actual expenses of common area maintenance are within the exclusive possession and control of Rock Creek. Rock Creek records each individual expense of common area maintenance in a standard book of accounts in accordance with a double entry accounting system. Their records are maintained to comply with Internal Revenue Service reporting requirements.
In January of each year the landlord is to furnish to the tenant a "written statement setting forth the total actual costs" which it incurred in operating and maintaining the common areas in the preceding year. If the tenant's pro rata share of such expenses exceeds the total of its monthly payments on account of those expenses, the tenant must pay the difference within 15 days. If the tenant's share of common area expenses is less than the total of its monthly payments on account of those expenses, it is entitled to a refund.
In April of 1986 Rock Creek sent P.V. a bill for its pro rata share of common area expenses for the preceding year. The bill they received from Rock Creek for the common area charges for 1985 was significantly greater than what the previous owner had charged them for the same expenses for 1984. P.V. initially withheld payment, requesting a detailed itemization of expenses in order to verify the amount charged. Rock Creek refused to provide the requested information and demanded payment. P.V. then submitted the amount claimed under protest, and thereafter filed its Complaint for Declaratory Relief.
P.V. asked the court to declare that Rock Creek is required to provide an itemization of the actual costs comprising the annual common area maintenance in sufficient detail so as to permit verification of the purpose and amount of the various expenditures which make up the common area assessment. A subsequent amended Complaint sought an accounting as alternative relief. The court dismissed the complaint, ruling that the relief requested in both counts was identical but could not be granted unless the court were to insert a new provision in the lease. The court declined to rewrite the contract, stating that the terms of the original lease were clear and unambiguous and did not require the landlord to provide the tenant with an itemized listing of the expenditures involved in the common area maintenance.
I. Declaratory Judgment.
It is well settled that Maryland follows an objective approach in construing contracts. General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306 (1985); Kasten Construction Company v. Rod Enterprises, 268 Md. 318, 301 A.2d 12 (1973). Under this standard, the court in construing an agreement must consider the following:
First, the court must determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.
General Motors Acceptance Corp., 303 Md. at 261, 492 A.2d at 1310; Town & Country v. Comcast Cablevision of Md., 70 Md. App. 272, 520 A.2d 1129, 1133 (1987).
A contract is considered ambiguous if, to a reasonably prudent layman, it is susceptible of more than one meaning. Truck Insurance Exchange v. Marks Rentals, Inc., 288 Md. 428, 418 A.2d 1187, 1190 (1980); Stanbalt Realty Co. v. Commercial Credit Corp., 42 Md. App. 538, 401 A.2d 1043 (1979). When a provision in a contract is susceptible to more than one interpretation, a construction which makes the contract fair and reasonable will be preferred to one which leads to either a harsh or unreasonable result. Canaras v. Life Truck Services, Inc., 272 Md. 337, 322 A.2d 866, 877 (1974); Baltimore City v. Industrial Electronics, Inc., 230 Md. 224, 186 A.2d 469 (1962); Stanbalt, supra. Contract provisions must be viewed in the context of the entire contract rather than construing each term separately. Rigger v. Baltimore County, 269 Md. 306, 312, 305 A.2d 128 (1973); Shell Oil Co. v. Ryckman, 43 Md. App. 1, 403 A.2d 379, 382 (1979).
Application of these fundamental principles begins with analysis of the language contained in the lease itself. Section 17 of the lease concerns the maintenance of the common areas of the shopping center. Specifically, section 17.03 provides:
17.03 Landlord will pay the cost of operating and maintaining the common areas of the Center, as described in paragraph 17.01, including but not limited to, the cost of cleaning, snow removal, landscaping, decorations, pylon signs, lighting and other utilities, resurfacing, painting, supplies, policing, wages of personnel to implement such services, workmen's compensation insurance, payroll taxes, public liability and property damage insurance, insurance against vandalism and malicious mischief, taxes on the personal property of whatever nature and however described, charged or assessed, straight line depreciation of equipment, and five percent (5%) of all the foregoing costs to cover the Landlord's administrative and overhead expenses.
Under this provision, the landlord is obligated to pay for certain specific costs associated with the maintenance of the common areas. The following section, 17.04 provides in pertinent part:
17.04 Common Area Charge: Tenant shall reimburse Landlord on a pro rata basis for the foregoing costs of operating and maintaining the common areas of the Center.... As soon as practicable after the end of each calendar year, Landlord will furnish to Tenant a written statement setting forth the total actual costs incurred by the Landlord in operating and maintaining the common areas during the preceding calendar year or portion thereof; and, in addition, Landlord will set forth Tenant's exact pro rata share of such costs which shall be determined by multiplying the total of the common area costs by a fraction....[1] If the Tenant's pro rata share of such common area costs is less than the amount which Tenant has paid in monthly installments during the preceding calendar year or portion thereof, then Landlord will refund the difference to Tenant within the following fifteen (15) days; however, if Tenant's pro rata share of such common area costs is greater than the amount Tenant has paid in monthly installments during the preceding calendar year or portion thereof, then Tenant will pay the difference to Landlord, as additional rent, within fifteen (15) days after receiving written notice thereof.
(Emphasis supplied).
These two sections read together set forth both the landlord's and tenant's rights and obligations regarding the cost of maintenance of the common areas of the shopping center. The landlord's right to charge the tenant for common area expenses is a limited one. It is specifically limited to those expenses which fall within the definition of common area expenses contained in Section 17.03 of the lease and were actually incurred by the landlord in the previous year. In order to collect payment, the landlord must provide the tenant with a yearly written statement setting forth the "total actual costs" incurred by the landlord in operating and maintaining the common areas.
Appellant contends that the trial court erred when it construed the phrase "total actual costs" to mean that the landlord only had to provide the tenant with one figure representing the total amount it spent that year on common area maintenance, rather than providing the tenant with an itemized list of the expenses incurred.[2] Appellant argues that this interpretation leads to a harsh and unreasonable result. The tenant has the right under the lease to be charged only for certain specific expenses incurred by the landlord for maintenance of the common areas. Appellant states that unless the tenant is given an itemization of the expenses involved, he has no way of verifying that the amount assessed was actually incurred. The landlord could, theoretically, come up with any figure and claim it represents the amount spent on common area maintenance. The tenant is simply required to pay that amount without question. Therefore, appellant argues construction of the terms of the lease is contrary to the express language of the contract when read as a whole. Section 17.03 clearly delineates the charges for which the landlord can seek reimbursement from the tenant. The purpose in outlining these charges is to ensure that the landlord does not include other charges, such as capital improvements, to the tenants as part of their common area maintenance charges. Section 17.04 requires the landlord to provide the tenant with an annual statement reflecting its "total actual costs" of maintenance.
We believe that the two sections, read together, require the landlord to provide the tenant with an annual statement which outlines in detail the type and amount of each expense it incurred. This requirement to itemize in detail the various expenses incurred in common area maintenance can also be implied from the terms of the lease. Although a court generally "[w]ill hesitate to construct a contract for the parties, under certain circumstances it is necessary in the interests of justice to imply a term which was not in the contemplation of the parties. 3 Corbin, Contracts, § 541 at n. 69 (1960). For example, the law will imply an obligation to act in good faith and to deal fairly with the other party, Whitney v. Halibut, Inc., 235 Md. 517, 202 A.2d 629 (1964); Food Fair Stores, Inc. v. Blumberg, 234 Md. 521, 200 A.2d 166 (1964); Restatement Second of Contracts § 205; a duty to use best efforts, Food Fair, supra; E.A. Farnsworth, Contracts, § 7.17 at 529 (1982); and an obligation to cooperate when necessary to the performance of a condition, Alois v. Waldman, 219 Md. 369, 149 A.2d 406 (1959).
In Whitney v. Halibut, Inc., supra, the purchaser of a parcel of real estate agreed that in addition to the purchase price, it would pay the seller's capital gain tax on the transaction. A dispute arose over the accuracy of the calculation of the seller's basis and hence his capital gain. The Court of Appeals held that there was an implied obligation for the seller to disclose the data underlying the calculation of the purchaser's contractual liability.
[The seller] could not ... merely sit back and take the position that [the purchaser] had to pay his entire capital gains tax in any event and furnish no proof as to cost. We think that he was also obligated to disclose to the vendee his cost data and the basis upon which his liability for the federal income tax on his capital gain was computed ... It is, we think, clear that there may be implied obligations as well as express obligations under a contract.
235 Md. at 529-30, 202 A.2d at 635. The same implication applies here. The obligation of good faith and cooperation implied in every contract gives rise to the implied requirement on the part of the landlord to disclose its cost data and the basis upon which the tenant's common area maintenance liability was computed.
In addition, even if the phrase "total actual costs" is ambiguous, the rules of contract require that the ambiguity be resolved in favor of reason and fairness, Katz v. Williams, 239 Md. 355, 211 A.2d 723 (1965), and construed against the draftsman, Stanbalt, supra, as opposed to a reading which creates harsh or inequitable results. Canaras v. Lift Truck Services, Inc., supra. The lower court's interpretation of this phrase permits the landlord to demand any sum it desires without giving the tenant any means to verify the charges. Reason and fairness require that the tenant be afforded some means of verifying the charges assessed against it. Otherwise, the tenant has no way of determining whether the charges it is being forced to pay fall within the scope of its obligations under the lease. The parties are under a duty to act in good faith and deal fairly with each other. Food Fair, supra. Therefore, the landlord is under an obligation to act in good faith in incurring, recording and assessing common area maintenance charges. Thus, we hold that appellant was entitled to a declaratory judgment declaring that the lease requires the landlord to itemize the actual costs assessed against appellant as to category and amount.
Appellees raised a new issue at oral argument. They argued that the integration clause in the lease, found in section 36.01, precludes the court from implying any new or additional terms in the lease. This issue was not raised below and therefore has not been preserved for appellate review. An appellate court will not ordinarily decide issues which have not been raised and decided by the trial court. Maryland Rule 8-131(a). See Kohr v. State, 40 Md. App. 92, 104, 388 A.2d 1242, cert. denied, 283 Md. 735 (1978); Washington Homes, Inc. v. Baggett, 23 Md. App. 167, 171, 326 A.2d 206 (1974), cert. denied, 273 Md. 720, 723 (1975); White v. State, 7 Md. App. 416, 423, 256 A.2d 174 (1969). Nevertheless, assuming arguendo that it was raised below, the purpose of an integration clause is to exclude prior oral agreements. See Whitney v. Halibut, 235 Md. 517, 527, 202 A.2d 629, 633 (1964); Department of General Services v. Cherry Hill Sand & Gravel Co., Inc., 51 Md. App. 299, 305, 443 A.2d 628 (1982); and 3 Corbin, Contracts, § 573 (revised 1960). It does not exclude a finding by the court that the parties have an implied condition to deal in good faith with each other. Whitney v. Halibut, 202 A.2d at 635. "The fact that a party has made a promise in words, words that are written and form a part of what may be called an `integration,' does not wholly preclude the finding by implication of an additional promise by the very same party." Corbin, Contracts § 564 at 297 (1960); citing Proctor v. Union Coal Co., 243 Mass. 428, 137 N.E. 659 (1923).
II. Accounting.
Appellant further contends that the trial court erred when it denied appellant's request for an accounting.[3] Appellant asserts that they are entitled to the equitable relief of an accounting because of the existence of a fiduciary relationship between the parties and because there is no adequate remedy at law.
The general rule is that a suit in equity for an accounting may be maintained when the remedies at law are inadequate. Nagel v. Todd, 185 Md. 512, 45 A.2d 326 (1946). An accounting may be had where one party is under an obligation to pay money to another based upon facts and records which are known and kept exclusively by the party to whom the obligation is owed, or where there is a confidential or fiduciary relation between the parties, and a duty rests upon the defendant to render an account. Gianakos v. Magiros, 238 Md. 178, 208 A.2d 718 (1965); Dormay Construction Corp. v. Doric Co., 221 Md. 145, 156 A.2d 632 (1959); Johnson v. Bugle Coat, Apron & Linen Service, Inc., 191 Md. 268, 60 A.2d 686 (1947); Nagel v. Todd, 185 Md. 512, 45 A.2d 326 (1946); Cook v. Hollyday, 186 Md. 42, 45 A.2d 768 (1945); Anderson v. Watson, 141 Md. 217, 118 A. 569 (1922).
Citing as precedent the case of Anderson v. Watson, supra, appellant contends that there existed a fiduciary relationship between the parties wherein Rock Creek owed them a duty to itemize their common area maintenance charges. In Anderson a group of coal miners sued their employer for an accounting of the coal they had mined. The employer had the exclusive means of weighing the coal. The court held that because the coal miners were obliged to rely on the good faith of their employer in properly weighing the coal, a fiduciary and confidential relationship was created. Accordingly, an accounting would be ordered. Id. at 235, 118 A. 569. The court determined that the equitable relief of an accounting was proper for the following reasons:
[W]e cannot say that a court of law can, under the circumstances of this case, afford the complainants an adequate and complete remedy, for while it may be true that, in the exercise of the powers conferred by sections 99 and 100, article 75, Code Pub.Gen.Laws, such a court could effectually solve the account between the parties, yet the powers thus conferred are not called into existence until after a suit has actually been brought, and unless the plaintiff is informed of the extent of his claim he cannot properly bring an action at law upon it, ... In this case the complainants do not know how many cars of coal they mined, nor the rate of compensation agreed upon from time to time for their labor, and until they receive that information they cannot properly present their claim in a court of law.
Nor can there be any real question that there was a fiduciary and confidential relation between the parties to this proceeding. The coal which measured the compensation to be paid to the men who mined it was weighed by the company on its own scales and by its own agents, out of the presence of the miners, who were, by the necessities of the case, precluded from witnessing the operation of weighing, and who were as a practical matter obliged to rely on the good faith of the company. Under such circumstances the miners naturally and necessarily trusted and relied upon the company's good faith, and the company assumed the duty of dealing fairly with them. For these reasons, in our opinion, the complainants are entitled to the accounting prayed in their bill.
(Emphasis supplied).
Similarly, owners and developers of property who are responsible for maintaining common areas have been held to be in a fiduciary relationship with the lot owners who pay them for this maintenance. For example, in Divizio v. Kewin Enterprises, Inc., 136 Ariz. 476, 666 P.2d 1085 (1983), the court held that mobile home lot owners were entitled to an accounting of the common area costs assessed to them by the owners of the park because the parties had a fiduciary relationship, one of trust, and the lot operators and common-area owners and managers were obligated to furnish accountings. Id., 666 P.2d at 1088. See also Young v. Lucas Construction Company, 454 S.W.2d 638 (Mo. Ct. App. 1970).
Likewise, in the case at bar, there is a limited fiduciary relationship between Rock Creek and P.V. Rock Creek maintains and exclusively controls the records which document its expenses. P.V. is forced to rely on the good faith and fair dealing of the landlord in assessing the charges. Therefore, under these circumstances, a confidential and fiduciary relationship exists between the parties. A confidential relation is not limited to cases of guardian and ward, attorney and client, and principal and agent, but exists in every case where confidence is reposed by one person and accepted by the other. Johnson v. Bugle Linen Service, 191 Md. at 275-276, 60 A.2d 686 (citing Grimes v. Grimes, 184 Md. 59, 63, 40 A.2d 58, 61 (1944)).
Even assuming the existence of a fiduciary or confidential relationship, Rock Creek maintains that P.V. does have an adequate remedy at law. They assert that P.V. could sue them for breach of contract and then through the civil discovery procedures obtain from them an itemized accounting. This suggestion is ludicrous, and certainly not one that leads to an adequate remedy at law. What they are suggesting is a reversal of proper litigation procedures. Generally, a claimant has a cause of action against a defendant that the parties have not been able to resolve, and therefore the claimant files suit. In its proposed scenario, Rock Creek recommends that P.V. first institute legal proceedings and then determine through discovery whether or not it has a cause of action. This course of action is a waste of both the court's and the litigants' time and expense. In addition, should P.V. refuse to tender payment, they run the risk of being sued for breach of contract and further, run the risk of being evicted from the shopping center. This can hardly be considered an adequate remedy at law.
In Johnson v. Bugle Coat, Apron & Linen Service, supra, the plaintiffs, restaurant owners, sued the defendant, a linen supply company, requesting an accounting of the quantities of each type of linen rented from the defendant over a four year period. In their complaint they alleged that the amount they paid the defendant for the linen service may not have been correct, but they had no way of determining if their suspicion was correct because all the records were kept by the defendant. The Court of Appeals denied plaintiffs' request for an accounting, noting that plaintiffs possessed the means to determine if the quantity charged was the quantity received. This was because the defendant submitted to the plaintiff on a monthly basis an itemized bill stating the quantities purported to have been delivered. The plaintiffs could have counted the goods delivered and compared that total to the amount listed on the monthly statements to determine whether defendant's statement was accurate. Because plaintiffs had the means to verify the charges assessed against it, their requested relief for an accounting was denied.
In the case sub judice, on the other hand, appellant had no means of determining whether the annual statement reflected the actual expenses incurred by the landlord for common area maintenance. Rock Creek refused to render an itemized bill, but instead issued one statement which they claim covers all their expenses for the past year.
We, therefore, conclude that Rock Creek must render "an accounting" to the appellant by providing an itemization as to category and amount of the actual costs within the annual common area maintenance assessment.
In light of our decision on issues one and two, we need not address appellant's final contention that the court erred in refusing to admit evidence related to landlord's assessment of common area maintenance fees to other tenants in the Rock Creek Shopping Center.
JUDGMENT REVERSED; THE CIRCUIT COURT FOR MONTGOMERY COUNTY TO ENTER DECLARATORY JUDGMENT CONSISTENT WITH THIS OPINION; APPELLEE TO PAY THE COSTS.
NOTES
[1] The portion of section 17.04 excluded from the quote refers to the formula pursuant to which tenant's pro rata share is determined.
[2] P.V. alleged in its Complaint for Declaratory Judgment that the previous owners of the shopping center always gave them an itemized accounting of the charges assessed against them for common area maintenance; however, P.V. presented no evidence at the trial to support this allegation.
[3] While our decision in part I hereof effectively resolves any question of accounting, we believe that the principles of law, as they relate to an accounting under the circumstances sub judice, are both instructive and supportive.
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228 N.J. Super. 162 (1988)
549 A.2d 437
SUSAN KORTENHAUS, PLAINTIFF-RESPONDENT,
v.
ELI LILLY & COMPANY, DEFENDANT-APPELLANT, AND ABC, INC. NOS. 1 THROUGH 400 (NAMES BEING FICTITIOUS AND UNKNOWN BUT USED TO DESCRIBE MANUFACTURERS OF DES), DEFENDANTS.
Superior Court of New Jersey, Appellate Division.
Argued September 14, 1988.
Decided October 4, 1988.
Before Judges GAULKIN, BILDER and R.S. COHEN.
*163 John L. McGoldrick argued the cause for appellant (McCarter & English, attorneys; John F. Brenner and Lisa M. Goldman, on the brief).
James M. Docherty argued the cause for respondent (Cohn & Lifland, attorneys; Daniel Crystal and James M. Docherty, on the brief).
The opinion of the court was delivered by BILDER, J.A.D.
This is a prescription drug liability case brought against a manufacturer[1] for in utero gynecological injury plaintiff Susan Kortenhaus alleges resulted from her mother's ingestion of DES during pregnancy.[2] Her complaint asserts claims against defendant Eli Lilly & Company based on theories of negligence, strict liability and breach of warranty. The matter comes before us on defendant's interlocutory appeal, on leave granted, from a partial summary judgment precluding it from litigating certain liability issues on the ground these were previously litigated by defendant and resolved against it in an earlier action in New York, Bichler v. Eli Lilly and Co., reported on appeal at 79 A.D.2d 317, 436 N.Y.S.2d 625 (1981), aff'd 55 N.Y.2d 571, 436 N.E.2d 182, 450 N.Y.S.2d 776 (1982) and from denial of its subsequent motion for reconsideration. In the February 16, 1988 order for partial summary judgment appealed from, defendant was collaterally estopped, i.e., barred, from disputing that DES was not reasonably safe for accidents of pregnancy in 1953; that in 1953 defendant should have foreseen that DES might cause cancer in the offspring of pregnant women who took it; that a reasonable and prudent drug manufacturer would have tested DES on pregnant mice before *164 marketing it; that the results of such tests would have shown that DES causes cancer in the offspring of tested mice; and that a reasonable and prudent drug manufacturer would not have marketed DES for use in accidents of pregnancy in 1953 if it had known that DES causes cancer in the offspring of pregnant mice. On appeal defendant contends the application of collateral estoppel to preclude it from contesting these factual conclusions was improper. We agree.
I.
Collateral estoppel is a branch of the broader law of res judicata which bars relitigation of issues previously litigated and determined adversely to the party against whom the doctrine is asserted. See Allesandra v. Gross, 187 N.J. Super. 96, 103-104 (App.Div. 1982). It is said to have as its purposes the protection of litigants from relitigating identical issues and the promotion of judicial economy. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). It is primarily a rule of efficiency. See Blonder-Tongue Labs v. University Foundation, 402 U.S. 313, 328-329, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971); Green, The Inability of Offensive Collateral Estoppel to Fulfill Its Promise: An Examination of Estoppel in Asbestos Litigation, 70 Iowa L.Rev. 141, 144 (1984); Lindsay, Offensive Collateral Estoppel, Appendix F to Dreier, Goldman & Farer, Products Liability and Toxic Tort Law in New Jersey: A Practitioner's Guide (6th Ed. 1988) at F2. When used by a defendant to bar a claim plaintiff has previously litigated and lost against a different defendant, it is referred to as defensive collateral estoppel. See Parklane Hosiery Co. v. Shore, supra 439 U.S. at 329, 99 S.Ct. at 650. When used to bar a defendant from asserting a defense previously litigated and lost against a different plaintiff, it is referred to as offensive collateral estoppel. Ibid. In this case, we are confronted with an application of offensive collateral estoppel to bar defendant from denying that its drug *165 was unsafe and that it was negligent in marketing DES for use by pregnant women.
At one time collateral estoppel was available only where there was a mutuality of estoppel; however, more recently this requirement was discarded and a more flexible rule was adopted which emphasized a discretionary weighing of economy against fairness. See Allesandra v. Gross, supra 187 N.J. Super. at 104. New Jersey has adopted the modern rule as contained in § 29 of the Restatement of Judgments 2d.
§ 29. Issue Preclusion in Subsequent Litigation with Others
A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which considerations should be given include those enumerated in § 28 and also whether:
(1) Treating the issue as conclusively determined would be incompatible with an applicable scheme of administering the remedies in the actions involved;
(2) The forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined;
(3) The person seeking to invoke favorable preclusion, or to avoid unfavorable preclusion, could have effected joinder in the first action between himself and his present adversary;
(4) The determination relied on as preclusive was itself inconsistent with another determination of the same issue;
(5) The prior determination may have been affected by relationships among the parties to the first action that are not present in the subsequent action, or apparently was based on a compromise verdict or finding;
(6) Treating the issue as conclusively determined may complicate determination of issues in the subsequent action or prejudice the interests of another party thereto;
(7) The issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based;
(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.
[Restatement, Judgments 2d at 229 (1982)]
*166 II.
As noted, collateral estoppel is a rule of efficiency a principle which seeks to promote efficient justice by avoiding the relitigation of matters which have been fully and fairly litigated and fully and fairly disposed of. Its preclusive effect will always be efficient in a narrow sense of judicial economy, but it will only be just when the criteria of full and fair determination of precisely the same issues have been met. Its application "necessarily rest[s] on the trial courts' sense of justice and equity." See Blonder-Tongue Labs v. University Foundation, supra 402 U.S. at 334, 91 S.Ct. at 1445.
Fundamental to the theory of collateral estoppel is the notion that the earlier decision is reliable, an underlying confidence the result was substantially correct. See Restatement, Judgments 2d, § 29, Comment f (1982). The premise is that properly retried, the outcome should be the same. See Parklane Hosiery Co. v. Shore, supra 439 U.S. at 328, 99 S.Ct. at 649; Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 346 (5th Cir.1982). This assumption of reproducibility, that the same technique would produce the same results, is a recognized basis for scientific inquiry. See Grinnell, The Scientific Attitude, 26-27 (1987). The considerations enumerated by the Restatement are largely tests by which confidence in the earlier decision may be measured. See State v. Gonzalez, 75 N.J. 181, 190 (1977).
The application of offensive collateral estoppel is a discretionary matter for the court, see Parklane Hosiery Co. v. Shore, supra 439 U.S. at 331, 99 S.Ct. at 651, and as a rule of efficiency should not be applied unless the court is fully satisfied with its fairness. Ibid.
III.
In the instant case, plaintiff alleges that she has cervical intraepithelial neoplasia III, a non-invasive carcinoma with the *167 potential to become invasive[3], and suffered an ectopic pregnancy.[4] She contends that this condition resulted from the ingestion by her mother during her 1961-1962 pregnancy of DES manufactured by defendant. By an in limine motion, plaintiff successfully sought to preclude defendant from litigating the questions of its negligence in testing and marketing DES and the fact that DES was defective. She contended that these issues had already been resolved by a jury in Bichler v. Eli Lilly and Co., supra, and that relitigation was barred by the doctrine of collateral estoppel. As noted, the trial judge agreed and entered an order establishing that defendant was negligent in its marketing and testing of DES and that the drug was defective or, more accurately, precluding defendant from disputing these facts.
In a lengthy written opinion, the trial judge found that the issues decided by the Bichler jury were identical to the issues plaintiff sought to preclude; that the judgment was on the merits; and that defendant was party to that action and had an incentive for asserting a vigorous defense, see Parklane Hosiery Co. v. Shore, supra 439 U.S. at 332, 99 S.Ct. at 652. He declined to consider evidence that the Bichler verdict may have been based on compromise because he believed defendant's rights were concluded by the judgment and, moreover, that his court was constitutionally required to give full faith and credit to the Bichler judgment. Finally, he declined to consider any inconsistent determinations made after Bichler or which did not involve Lilly. He expressed the view that "[t]here is nothing *168 novel or unfair about the notion that a defendant who suffers an unfavorable decision, even after a series of favorable ones, may find itself forever barred from relitigating the issues as to which the adverse judgment was granted."
IV.
The application of offensive collateral estoppel in the face of inconsistent verdicts is antithetical to the very basis of the rule confidence in the first outcome. "Not only does issue preclusion in [cases where there are inconsistent verdicts] appear arbitrary to a defendant who has had favorable judgments on the same issue, it also undermines the premise that different juries reach equally valid verdicts." Hardy v. Johns-Manville Sales Corp., supra at 346. See also Bates v. John Deere Co., 148 Cal. App.3d 40, 48, 195 Cal. Rptr. 637, 642-643 (1983). Disparate results whatever their chronology cast doubt on the reproducability of the adverse result.
f. Inconsistent prior determination. Giving a prior determination of an issue conclusive effect in subsequent litigation is justified not merely as avoiding further costs of litigation but also by underlying confidence that the result reached is substantially correct. Where a determination relied on as preclusive is itself inconsistent with some other adjudication of the same issue, that confidence is generally unwarranted. The inference, rather, is that the outcomes may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence or the appropriate application of a legal rule to the evidence. That such a doubtful determination has been given effect in the action in which it was reached does not require that it be given effect against the party in litigation against another adversary.
[Restatement, Judgments 2d, § 29, comment f]
This doubt can even be created by ambivalence in the prior determination.
g. Ambivalence of prior determination. The circumstances attending the determination of an issue in the first action may indicate that it could reasonably have been resolved otherwise if those circumstances were absent. Resolution of the issue in question may have entailed reference to such matters as the intention, knowledge, or comparative responsibility of the parties in relation to each other. Particularly where the issues have been tried to a jury, the circumstances may suggest that the issue was resolved by compromise or with more or less conscious reference to such matters as insurance coverage or the litigants' relative financial position. In these and similar situations, taking the *169 prior determination at face value for purposes of the second action would extend the effects of imperfections in the adjudicative process beyond the limits of the first adjudication, within which they are accepted only because of the practical necessity of achieving finality.
[Id. comment g]
In the instant case the existence of inconsistent results is clear. Not only has defendant furnished such examples[5] but the trial court, seemingly, acknowledged their existence, although discounting them as subsequent determinations or determinations which did not involve this particular DES manufacturer. Knowledge at the time issue preclusion is considered that inconsistent results have been obtained with respect to the resolution of those issues casts doubt as to the reliability of a particular result adverse to a defendant and makes its preclusive application unfair. See Hardy v. Johns-Manville Sales Corp., supra; State Farm Fire & Cas. Co. v. Century Home Compon, Inc., 275 Or. 97, 109, 550 P.2d 1185, 1191 (1976); Bates v. John Deere Co., 148 Cal. App.3d 40, 48, 195 Cal. Rptr. 637, 642-643 (1983); Desmond v. Kramer, 96 N.J. Super. 96, 104 (Cty.Ct. 1967). This would be true whether the inconsistency preceded or followed the adverse result plaintiff seeks to use. See e.g. Sandoval v. Superior Court of Kings County, 140 Cal. App.3d 932, 934, 944, 190 Cal. Rptr. 29, 31, 37 (1983) where the inconsistent verdict came two years after the verdict plaintiff sought to employ preclusively.
We are satisfied Lilly's success in much of its DES litigation experience makes the application of offensive collateral estoppel inappropriate and requires reversal. While not necessary to *170 this decision, we also note that the findings in Bichler were based upon concerted action by a number of manufacturers with respect to a generic drug. Since Lilly's liability was coextensive with that of the other drug companies with which it cooperated, inconsistent results in litigation against the other manufacturers should also be relevant in gauging the confidence which can be had with respect to the preclusive use of Bichler.
V.
Defendant also contends plaintiff has not borne its burden of showing that the issues in Bichler were identical with those presented in this case, see Allesandra v. Gross, supra 187 N.J. Super. at 105, and that changes in the state of medical science and the publication of new studies should deprive Bichler of preclusive effect, see Zweig v. E.R. Squibb & Sons, Inc., 222 N.J. Super. 306, 312 (App.Div. 1988), certif. den. 111 N.J. 614 (June 7, 1988). As to the latter, in its brief, plaintiff does not contest the existence of new material, only its relevance a sophisticated question beyond determination on such a motion. As to the former, it is useful to note that at least one court which has considered the matter concluded the exact nature of the issues litigated in Bichler could not be determined from the published opinions alone. See Wetherill v. University of Chicago, 548 F. Supp. 66, 68-69 (N.D.Ill. 1982); also Robinson-Shore Development Co. v. Gallagher, 26 N.J. 59, 68 (1958)
VI.
In sum, it is clear that the Bichler decision does not bear the comforting sense of reliability that justifies its use to bar defendant from litigating these liability issues which it strongly contests.
REVERSED.
NOTES
[1] In her complaint plaintiff named Lilly and 400 other unknown defendants. Lilly remains the only named defendant.
[2] An exhaustive explanation of DES is found in Ferrigno v. Eli Lilly and Co., 175 N.J. Super. 551, 561-565 (Law Div. 1980).
[3] There appears to be some dispute as to plaintiff's condition. This is plaintiff's description as set forth in her brief. Affidavits filed in connection with defendant's motion for reconsideration of the trial judge's decision describe this as Stage O epidermoid carcinoma of cervix (plaintiff) (apparently benign tissue was removed in an operative procedure) and a pre-cancerous condition (defendant).
[4] This latter claim does not appear to be significant within the context of this appeal.
[5] Shirkey v. Lilly, 84-C-288 (E.D.Wis. 3/13/87); McAdams v. Lilly, 77-C-4174, (N.D.Ill. 12/16/86); Sardell v. Lilly, 18268/77 (N.Y. Sup. Ct. 11/24/82); Keil v. Lilly, 75-70997 (E.D.Mich. 1981); Hadden v. Lilly, L-5484-76 (N.J. Super.Ct., Law Div. 1986). Other courts have also recognized the existence of inconsistent verdicts in denying collateral estoppel based on Bichler: Wetherill v. University of Chicago, 548 F. Supp. 66 (N.D.Ill. 1982); Watson v. Lilly, 82-0951, (D.D.C. 7/30/82); Dawson v. Lilly, 81-1288, (D.D.C. 8/30/82); Pine v. Lilly, L-65163-80 (N.J. Super.Ct., Law Div. 7/8/87); Hadden v. Lilly, supra.
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378 Pa. Super. 442 (1988)
549 A.2d 140
COMMONWEALTH of Pennsylvania
v.
Louis DeFUSCO, Appellant.
Supreme Court of Pennsylvania.
Submitted May 16, 1988.
Filed August 25, 1988.
Reargument Denied October 24, 1988.
*443 Mary DeFusco, Conshochocken, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Before CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.
*444 HOFFMAN, Judge:
This appeal is from a judgment of sentence for violating § 3362 of the Pennsylvania Motor Vehicle Code, 75 Pa.C. S.A. § 101 et seq. Appellant contends that 1) the Delaware River Port Authority has promulgated and implemented a regulation permitting the use of electronic speed devices by its officers in contravention of a state law that limits the use of electronic speed devices to the Pennsylvania State Police, 75 Pa.C.S.A. § 3368(c); 2) the lower court erred in admitting evidence of his speed based upon the reading from the electronic device employed by the Delaware River Port Authority police officer; and 3) the Delaware River Port Authority exceeded the scope of its jurisdiction by monitoring traffic on a state highway. For the reasons set forth below, we reverse the judgment of sentence.[1]
On October 6, 1986, a Delaware River Port Authority (DRPA) officer, positioned in Pennsylvania approximately one mile west of the Walt Whitman Bridge, observed appellant's vehicle exiting the bridge. The DRPA officer, using an electronic speed-timing device, determined that appellant was traveling at a speed of fifty-nine miles per hour in a posted forty-five mile per hour zone. Appellant was issued a citation for speeding in violation of 75 Pa.C.S.A. § 3362(a)(3). After a hearing in Philadelphia Traffic Court, appellant was convicted of the violation and sentenced to pay a fine. Appellant appealed the summary conviction to the Court of Common Pleas. Following a de novo trial, *445 appellant was adjudged guilty of violating § 3362(a)(3). Post-trial motions were filed, argued, and denied. Appellant was then sentenced to pay a fine. This appeal followed.
Appellant initially contends that the lower court improperly admitted into evidence a reading that was obtained through the use of an electronic speed device employed by a DRPA officer. Appellant argues that the DRPA has implemented a regulation that permits its officers to use electronic speed devices even though the state legislature has enacted a statute specifically restricting the use of such equipment to the Pennsylvania State Police. According to appellant, this action is directly contrary to express legislative intent. Appellant argues that the DRPA has circumvented the legislature's intent by promulgating a rule that extends the use of electronic speed devices to its officers, even though it is clearly evident that § 3368(b) prohibits the use of electronic speed devices to other than Pennsylvania State Police. Because the arresting officer was not a member of the State Police, appellant contends the use of the radar unit was unauthorized and requires that his conviction be reversed. We agree.
In determining the effect of an administrative regulation promulgated by the DRPA, we must ultimately review the administrative regulation in question to ensure it is in accordance with the enabling statute. It is well-settled that an administrative regulation must be consistent with the statute under which it was promulgated. Wiley House v. Scanlon, 502 Pa. 228, 237, 465 A.2d 995, 999 (1983) (Department of Education regulation not inconsistent with Public School Act); Commonwealth, Dep't of Pub. Welfare v. Forbes Health Sys., 492 Pa. 77, 81, 422 A.2d 480, 482 (1980) (Department of Public Welfare's medical assistance regulations consistent with enabling statute). Moreover, when there exists an apparent inconsistency or conflict between a statute and a regulation promulgated thereunder, the statute must prevail. Tiani v. Commonwealth, Dep't of Pub. Welfare, 86 Pa.Cmwlth. 640, 642, 486 A.2d 1016, 1017 (1985) *446 (regulation purporting to implement statutory provisions not conflicting with enabling statute).
In interpreting a statute, we are guided by the Statutory Construction Act, 1 Pa.C.S.A. § 101 et seq. Section 1921 of the Statutory Construction provides that "[w]hen words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. § 1921(b). Thus, if the language of a statute is clear and unambiguous, a court must read its provisions in accordance with their plain meaning and common usage. Commonwealth v. Becker, 366 Pa.Super. 54, 58, 530 A.2d 888, 890 (1987) (en banc).
Aside from statutory interpretive guidelines, we may also look to general principles of statutory construction. One such principle is encompassed in the legal maxim, expressio unius est exclusio alterius: that which is not included in the law shall be understood as excluded in the law. Grant v. Riverside Corp., 364 Pa.Super. 593, 599, 528 A.2d 962, 965 (1987); Commonwealth ex rel. Maurer v. Witkin, 344 Pa. 191, 196, 25 A.2d 317, 319 (1942). Under this principle of interpretation, there is an inference that all omissions from a statute should be regarded as designated exclusions. Commonwealth v. Tilghman, 366 Pa.Super. 328, 336, 531 A.2d 441, 445 (1987) (en banc).
Here, we are called upon to interpret two apparently conflicting sections of the Motor Vehicle Code, 75 Pa.C.S.A. § 101 et seq. The Motor Vehicle Code is a comprehensive statutory enactment governing traffic, roadways, and the manner and circumstances under which vehicles may be operated on the roadways in the Commonwealth. The primary purpose of the Motor Vehicle Code and its amendments is to protect and promote public safety and property within the Commonwealth. Commonwealth v. Arnold, 215 Pa.Super. 444, 449, 258 A.2d 885, 887 (1969); Commonwealth v. Irwin, 345 Pa. 504, 506-07, 29 A.2d 68, 69 (1942). Therefore, every provision of the Code should be interpreted in light of that intent. Commonwealth v. Arnold, supra.
*447 The Legislature enacted a specific provision within the Motor Vehicle Code that provides for the operation of speed timing devices to monitor the speed of vehicles. 75 Pa.C. S.A. § 3368(c). The Motor Vehicle Code differentiates between "electronic" and "mechanical or electrical" speed timing devices and further designates those branches of traffic enforcement permitted to use such devices to monitor vehicle speed. Previously, § 3368(c) provided in relevant part:
(c) Mechanical, electrical and electronic devices authorized.
(1) the rate of speed of any vehicle may be timed on any highway by police officer using a mechanical or electrical speed timing device.
(2) electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.
75 Pa.C.S.A. § 3368, 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977 (emphasis added).
In 1986, the legislature amended the Motor Vehicle Code by adding Subsection (c)(3) which permits any officer to use a hybrid type of an electrical and electronic speed device. Section 3368(c)(3), as amended, now provides in pertinent part:
(1) Except as otherwise provided in this section, the rate of speed of any vehicle may be timed on any highway by a police officer using a mechanical or electrical speed timing device.
(2) Except as otherwise provided in paragraph (3), electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.
(3) Electronic devices which calculate speed by measuring elapsed time between measured road surface points by using two sensors and devices which measure and calculate the average speed of a vehicle between any two points may be used by any police officer.
*448 75 Pa.C.S.A. § 3368(c), as amended by P.L. 71 No. 24, § 2 (March 27, 1986) (emphasis added). Despite the fact that the Code expressly states that only State Police may employ "electronic" devices, the DRPA promulgated a regulation authorizing its officers to use radar devices. The regulation provides, in relevant part:
Mechanical, electrical and electronic devices authorized:
(2) Electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used by DRPA police. . . .
Delaware River Port Authority Rules and Regulations, Section 3, 3.2(c)(2), Revised October 15, 1986. The apparent authority for issuing this regulation is contained in 75 Pa.C.S.A. § 6111. Section 6111 of the Motor Vehicle Code provides:
Regulation of traffic on bridges under authority of inter state commissions
(a) General rule. The provisions of this title apply to any bridge under the supervision and control of the Delaware River Joint Toll Bridge Commission, the Delaware River Port Authority and the New York-Pennsylvania Joint Commission on Bridges over the Delaware River unless specifically modified by rules and regulations which shall become effective only upon publication in accordance with law. . . .
75 Pa.C.S.A. § 6111.
The issue that we must resolve is whether the DRPA's regulation promulgated under the authority granted by § 6111, is in contravention of § 3368 of the Motor Vehicle Code. An analysis of the central purpose behind § 3368, as well as the legislative history, convinces us that it is. A review of the legislative history underlying the enactment of § 3368(c) provides guidance into ascertaining the Legislature's intent in restricting the use of electronic speed devices by State Police. See Fireman's Fund Ins. Co., v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 502, 464 A.2d *449 431, 434 (1983). When the Legislature amended the Motor Vehicle Code in 1976, the House and Senate engaged in lengthy debates on the various amendments. Of particular importance are the references to the reasons behind the restriction of electronic speed devices to the State Police. As summarized by our Supreme Court in Commonwealth v. DePasquale,
[M]embers of the legislature cited the following reasons for their desire to restrict the use of electronic devices to the State Police: that the proponents of radar in municipalities are concerned more with revenue raising than with safety . . . that radar has not improved safety on the roads but has only helped the district justices and the arresting mills; . . . that when radar is available to the police, the number of arrests for speeding increases dramatically;. . . and that is is unfair to allow municipalities to use radar when the speed limits have not been updated to keep pace with the new developments in transportation.
Commonwealth v. DePasquale, 509 Pa. 183, 190, 501 A.2d 626, 631 (1985) (citations omitted).[2]
The legislative history clearly evidences an intention on the part of the Legislature to restrict the use of electronic speed measuring devices to our State Police. Moreover, the reasons proffered by the legislature were well grounded in consideration for the safety and welfare of the general public. In keeping with the spirit and purpose of the Motor Vehicle Code, the Legislature stated clearly and concisely that the use of electronic speed detection devices is most effectively reserved for the State Police in order to serve the interests of the general public. Such a reading of the *450 legislative history is necessary to "effectuate the intention of the general assembly . . ." 1 Pa.C.S.A. § 1921(a), 1922(2); see also Fireman's Fund Ins. Co., v. Nationwide Mutual Ins. Co., supra. To do otherwise, would be to disregard the plain and unambiguous language of § 3368(c) of the Motor Vehicle Code. Commonwealth v. Becker, supra.
Our analysis is further buttressed by the enactment of the 1986 amendment to the Motor Vehicle Code, wherein the Legislature extended to "any officer" permission to use a particular type of electrical/electronic speed measuring device to calculate vehicle speed. Had the legislature intended to enlarge the scope of the use of all electronic speed devices, it had an opportunity to do so at that time. We find a more expansive interpretation of the statutory language unwarranted. We can only regard the inaction of the legislature as a purposeful intent to continue the restriction of the use of electronic speed devices to the State Police. See Grant v. Riverside Corp., supra.
In interpreting the intent of the legislature, we are also guided by the legal maxim of statutory construction, expressio unius est exclussio alterius: that which is not included in the law shall be excluded in the law. See Grant v. Riverside Corp., supra. The only possible inference to be drawn from the Legislature's failure to include local enforcement or other designated agencies in the group permitted to use electronic speed devices is that the omission of those not so enumerated are to be designated as exclusions. See id.; Commonwealth v. Tilghman, supra. Certainly, had the legislature wished to accord the DRPA the privilege to use electronic speed devices, it would have included the DRPA in § 3368. See Grant v. Riverside Corp., supra; Commonwealth v. Tilghman, supra. We cannot but deem that omission to be of significance. Accordingly, under this statutory principle, because the DRPA was not given express authority to use electronic speed devices in the Motor Vehicle Code, we cannot now enlarge *451 the scope of § 3368 to extend a function to the DRPA that the the legislative never intended.
We turn now to the question whether the DRPA was vested with authority to promulgate a regulation in contravention of the express provisions of the Motor Vehicle Code. This requires us to examine § 6111 which empowers the DRPA to modify the Motor Vehicle Code. Section 6111 of the Motor Vehicle Code binds the DRPA to the provisions of the Code and vests with the DRPA the authority to promulgate rules and regulations modifying the code. 75 Pa.C. S.A. § 6111. An analysis of the DRPA's delegated power to promulgate regulations must be examined in light of the legislative framework under which it was created. The DRPA was originally created by interstate compact between the Commonwealth of Pennsylvania and the State of New Jersey to be a public corporate instrumentality of both states and to exercise an essential governmental function. Yancoskie v. Delaware River Port Auth., 478 Pa. 396, 400, 387 A.2d 41, 43 (1978); accord Bell v. Bell, 83 N.J. 417, 416 A.2d 829 (1980)
The purpose of the DRPA was expanded from the operation of a single interstate bridge to embrace the development and improvement of the lower Delaware port district from Philadelphia south to the Pennsylvania-Delaware border, 36 Pa.C.S.A. § 3503, Arts. 1(a), XII-A(1), XII-B(1). The Authority is charged with the development and improvement of port facilities in this area. Id. Art. I(c), (k). The powers granted the DRPA by virtue of the compact are commensurate with its broad purposes.
Nardi v. Delaware River Port Authority, 88 Pa.Cmwlth. 558, 560, 490 A.2d 949, 952 (1985).
Consistent with its broad purpose and delegated authority, the DRPA's powers were further delineated when the legislature enacted § 6111 in the Motor Vehicle Code that, a provision that binds the DRPA to follow the provisions of the Code unless the DRPA promulgated regulations modifying the Code. We believe that the legislature, consistent *452 with the purpose of the enabling statute, envisioned that § 6111 would confer upon the DRPA the authority to modify the sections of the Motor Vehicle Code for the purpose of promoting safety and efficiency on the bridges. We do not believe, however, that the legislature intended to grant the power to the DRPA to promulgate rules and regulations that directly contravene matters expressed in the Motor Vehicle Code.
To interpret § 6111, we look to the clear and unambiguous language of the statute and read it in accordance with the plain meaning and common usage of its terms. See Commonwealth v. Becker, supra. Here, it is readily apparent that the DRPA is bound to follow the provisions of the Motor Vehicle Code. Moreover, it is equally clear that the DRPA may only modify the provisions of the Code by duly promulgating a rule or regulation. The word "modify" has been defined as altering or changing in incidental or subordinate measures. Black's Law Dictionary 905 (5th ed. 1979). In light of the plain meaning of the word "modify", it follows that the legislature did not vest with the DRPA the authority to promulgate rules and regulations that go beyond the perimeters of the Motor Vehicle Code. If the contrary were true, the legislature need not have expressly stated that all the provisions of the Motor Vehicle Code apply to the DRPA. See 75 Pa.C.S.A. § 6111 ("provisions of this title apply to any bridge under the supervision and control of the [DRPA]"). Because the DRPA was not expressly granted the statutory right to use electronic speed devices within their jurisdiction, the DRPA cannot promulgate a regulation in accordance with its delegated authority that conflicts with the enabling statutory scheme. See Wiley House v. Scanlon, supra. The DRPA, therefore, can not enforce a regulation, which overrides legislative intent and extends beyond the statutory scheme. See id. The intent of the legislature was to permit the DRPA to "modify" the Motor Vehicle Code in accordance with its broad purposes and not to empower the DRPA to create *453 new law. We can find no indication that the legislature intended to enact a broader grant of authority to the DRPA than is otherwise specified in clear and unambiguous terms in the Motor Vehicle Code.
The legislature has sounded its message: Only State Police are to employ electronic speed measuring devices. See 75 Pa.C.S.A. § 3368(c)(2). See also Commonwealth v. DePasquale, supra; Commonwealth v. Schmitzer, 286 Pa. Super. 138, 428 A.2d 610 (1981). We, therefore conclude that the DRPA's regulation granting its officers the right to use electronic equipment is not an acceptable exercise of delegated authority. A contrary interpretation of the legislative language would give effect to an administrative regulation inconsistent with the statute under which it was promulgated. See Wiley House v. Scanlon, supra. Accordingly, where as here, there is an apparent conflict between a statute and a regulation promulgated thereunder, the statute must prevail. See Tiani v. Commonwealth of Pennsylvania, Department of Public Welfare, supra.
Because we have determined that the regulation at issue is not consistent with the enabling statute and must, therefore, fail; the use of electronic speed devices by DRPA officers is unlawful. Consequently, in the instant case, evidence of appellant's speed based on information from the use of an electronic speed device should not have been admitted at trial.[3]See Commonwealth v. Schmitzer, supra.
Accordingly, for the foregoing reasons, we reverse the decision of the lower court and vacate judgment of sentence.
Judgment of sentence vacated and charge dismissed.
NOTES
[1] We note that appellant, within his argument, raises the question of the procedural constitutionality of the DRPA's actions in promulgating the regulation at issue, § 3(c)(2) of the DRPA's Rules and Regulations. Appellant contends that the DRPA was bound to publish its proposed regulation pursuant to 75 Pa.C.S.A. § 6111, in accordance with 45 Pa.S.A. § 1201-02 (Supp. 1987). Appellant argues that the language in § 6111 requires that an agency's proposed regulations must be published in order for them to be given the force and effect of law. By failing to publish the proposed regulations in the Pennsylvania Bulletin prior to their implementation, appellant contends that the DRPA's regulations, specifically, § 3(C)(2), are invalid. Because of the disposition of appellant's first contention, we need not address the procedural constitutional issue or reach the merits of appellant's other contentions.
[2] Although the statements and views voiced by the legislators during the floor debates are not controlling in ascertaining legislative intent, they are a legitimate aid in construing a statute and warrant due consideration. See Young v. Kaye 443 Pa. 335, 348 n. 3, 279 A.2d 759, 765 n. 3 (1971) (legislative comments accorded weight in interpreting legislative intent behind statute). But see Martin v. Soblotney, 502 Pa. 418, 424 n. 5, 466 A.2d 1022, 1025 n. 5 (1983) (views of legislators not relied on to ascertain legislative intent).
[3] We note that the only evidence introduced by the Commonwealth at appellant's trial as to the speed at which appellant was traveling was the testimony of the DRPA officer based on information provided to him by the use of his radar equipment. Because the DRPA officer offered no personal observation of appellant's speed, there is no other evidence to consider and appellant's sentence is properly vacated.
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379 Pa. Super. 323 (1988)
549 A.2d 1316
Barbara A. HALEY
v.
Charles F. HALEY, Appellant.
Supreme Court of Pennsylvania.
Submitted September 14, 1988.
Filed November 1, 1988.
*324 Charles F. Haley, in propria persona.
Barbara Haley Wize, in propria persona.
Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
TAMILIA, Judge:
This is a pro se appeal by the defendant/father, who is an attorney, from a June 17, 1987 Order modifying a previous *325 child support Order. Appellee/mother is also proceeding pro se in this matter but has not submitted a brief.
The parties were married in Texas in 1968. On January 28, 1986, appellee filed a complaint in divorce seeking, among other items, spousal and child support. The parties had three children during the course of their marriage: Deron, born September 1, 1971; Ryan, born March 17, 1973; and Shannon, born August 1, 1977. On February 10, 1987, a final Decree in divorce was entered. At the time of the hearing on appellants' petition for modification of support, an existing child support Order was in effect requiring a total monthly support obligation by appellant in the amount of $645 per month less a $76 per month payment to be made by appellant on a joint obligation of the parties, resulting in an actual support payment of $569 per month. Appellant filed the petition for modification because he had been laid off on February 16, 1987 from a $35,000 a year job as labor counsel for Heck's Inc. The hearing officer recommended the support obligation remain unaltered at $569 per month plus the $76 payment on the joint obligation, but did alter the form of payment by requiring appellant to pay only $250 per month while unemployed, with the remainder accumulating as an arrearage. The trial court entered the recommendations as an Order on June 17, 1987. After a hearing de novo the trial court denied both parties' exceptions and made the Order final on October 19, 1987. This timely appeal followed.[1]
Appellant's sole claim on appeal is that the trial court abused its discretion in refusing to reduce his child support obligation after he incurred an involuntary reduction in income.
*326 Our scope of review in child support cases is limited. In Ritter v. Ritter, 359 Pa.Super. 12, 16-18, 518 A.2d 319, 322 (1986), we set forth the standard of review for child support as follows:
It is within the trial court's discretion to determine the amount of a support Order, and its judgment should not be disturbed on appeal absent a clear abuse of that discretion. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324 (1985). `On appeal, a trial court's child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award.' Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985); Commonwealth ex rel. Robinson v. Robinson, 318 Pa. Super. 424, 465 A.2d 27 (1983). A finding of abuse will be made only upon a showing of clear and convincing evidence. Koller v. Koller, 333 Pa.Super. 54, 481 A.2d 1218 (1984).
The role of an appellate court in support proceedings is limited and a finding of an abuse of discretion is not made lightly. Hartley v. Hartley, 364 Pa.Super. 430, 528 A.2d 233 (1987); Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986). With this standard in mind, we will review appellant's claim.
Appellant contends the trial court failed to apply the support guidelines properly by not utilizing his actual income and that the court's decision is unsupported by the evidence and is an abuse of discretion. Appellant argues that in reviewing his motion for modification the trial court erred by not considering his involuntary reduction in income as a reduction in earning capacity. He contends it was an abuse of discretion to ignore his reduction in actual income and to conclude his earning capacity remained undiminished.
In DeMasi v. DeMasi, 366 Pa.Super. 19, 31-33, 530 A.2d 871, 877 (1987), allocatur denied, 517 Pa. 631, 539 A.2d 811 *327 (1987), we summarized the basis for determining a parent's support obligation as follows:
Both parents are equally responsible for supporting their children, and the extent of their respective support obligations is determined by their capacity and ability. Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). A parent's ability to pay support is determined primarily by financial resources and earning capacity. Hesidenz v. Carbin, 354 Pa.Super. 610, 512 A.2d 707 (1986); Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985). The obligation of support, then, is measured more by earning capacity than by actual earnings. Hesidenz, supra.
See DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987).
In fashioning the award to appellee for support of the parties' children, the hearing officer and the trial court accounted for appellant's reduction in actual income by reducing the actual support payment from $569 per month to $250 per month[2] and allowing the difference to accumulate as arrearages, until such time as appellant obtained employment and could pay on the arrearages. Both the hearing officer and the trial court concluded appellant had an undiminished earning capacity despite his being laid off from Heck's Inc. Upon thorough review of the record, we find clear and convincing evidence of record that such a finding is an abuse of the trial court's discretion. Further, we find the reduced-payment-coupled-with-accumulated-arrearages arrangement ordered below, does not adequately address appellant's changed ability to pay support as determined by his financial resources at the time of his unemployment.
Appellant incurred a definite and substantial involuntary reduction of income when he was laid off from Heck's Inc. This decrease in earnings was from a net total of $2,196 per month to unemployment compensation of $975 per month *328 before taxes. Appellee's net income at that time was $1,220 per month with reported expenses of approximately $1,870 per month.[3] Although earning capacity is more determinative of an ability to pay than actual earnings, DeMasi, supra, and Hesidenz, supra, the two concepts are closely linked and under these circumstances are indistinguishable. Here, we find no basis exists for the trial court's finding that appellant's earning capacity was not curtailed at the same time his actual earnings were reduced. Although appellant is an attorney, he was not in practice for himself and had no reported income from his ability to practice law at the time of the lay off. Further, appellant had no other reported earnings besides his salary or unemployment compensation. Under these circumstances, the trial court erred in concluding appellant's earning capacity was undiminished. Accordingly, we vacate the Order of October 19, 1987 which reaffirmed the Order of June 17, 1987.
A parent's involuntary loss of income is a serious matter with obvious adverse repercussions on the economic welfare of the children, however, it is a loss which must be weathered. If the parties had still been together when appellant was laid off, the family would have had to make do with what it had, all sharing to a commensurate degree in the loss, rather than the father bearing all. The same should follow when the parents are separated, as here. Here, the record is clear that appellant was unemployed and actively seeking a job, without any type of earnings or capacity to earn other than his unemployment compensation during that period. This may not be likened to the cases wherein an obligor has voluntarily withdrawn from income producing endeavors or reduced his earnings out of malice or concealed earnings by hiding behind family corporate shields, unsubstantiated debts or unwarranted expenses. In those cases we have consistently gone behind the subterfuge and applied the earning capacity consideration. Proof of the inadequacy of the application of that concept in this case was the fact that when appellant was finally re-employed, *329 it was at a lower salary and the court recognized this permanent diminution of earning capacity by reducing the permanent Order to $426 per month. With the economy under constant adjustment, jobs being eliminated and "take backs" resulting in reduced earnings, the courts must be careful not to find earning capacity when none exists. Because of recent legislation compelled by federal requirements to collect arrearages and enforce payment, assessment of arrears must truly reflect the actual situation as there is virtually no possibility of adjustment in the future, if the decision was not appropriate. Act No. 1988-35, approved March 25, 1988, creates a "Judgment by Operation of Law" as follows (23 Pa.C.S.A. § 4302 Definitions):
`Judgment by operation of law.' A judgment which exists without the need for any ministerial act and which arises out of the existence of facts readily verifiable from the domestic relations section's records. The existence of a valid support order and nonpayment of the order, together, create the judgment.
The Amendments to 23 Pa.C.S.A. § 4352, Continuing jurisdiction over support orders, provide in pertinent parts:
.....
(c) Arrears as judgments. On and after the date it is due, each and every support obligation shall constitute a judgment against the obligor by operation of law, with the full force, effect and attributes of a judgment of court, including the ability to be enforced, and shall be entitled as a judgment to full faith and credit in this or any other state. Past due support obligations shall not become a lien upon the real and personal property of the person ordered to make such payments until the judgment or order has been entered of record in the office of the clerk of the court of common pleas in the county where the real or personal property owned by the person obligated to pay support is located or in the office of the clerk of the branch of the court of common pleas embracing such county in accordance with 42 Pa.C.S. § 4303 (relating to effect of judgments and orders as liens). *330 Execution shall issue thereon pursuant to the Rules of Civil Procedure. The obligation for payment or arrears or past due support shall terminate by operation of law when all arrears or past due support has been paid.
(d) Retroactive modification of arrears. No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor.
Finally, 23 Pa.C.S.A. § 4354, Willful failure to pay support order, was added, creating a summary offense as follows:
§ 4354. Willful failure to pay support order
(a) Offense defined. An individual who willfully fails to comply with a support order of a court of this Commonwealth when the individual has the financial ability to comply with the support order commits a summary offense.
(b) Application. This section applies to all support cases, whether civil or criminal and whether the defendant is married, unmarried, separated or divorced.
(c) Jurisdiction. Exclusive original jurisdiction of a proceeding under this section is vested in the courts of common pleas of this Commonwealth.
Because of these more stringent laws as to arrearages and their nonmodifiability, the automatic imposition of judgment without review, and the imposition of a penal sanction (summary offense) for willful failure to support, the trial courts must now apply closer scrutiny to ability to pay than heretofore. Earning capacity becomes too vague a basis for assessing arrears, absent some verifiable basis for determining that the capacity exists, or that it was eliminated or reduced because of intentional actions by the obligor.
*331 Our review of the record disclosed that appellee testified she had been forced to "borrow money" from her mother and other relatives during appellant's period of unemployment in order to provide for the welfare of the parties' children (N.T. 10/13/87, pp. 29-30). Any such loans, if reasonable and undertaken for the benefit of the children, should be a debt shared by both parties. Therefore, on remand we direct the trial court to hold a hearing to determine the total amount of money borrowed for the benefit of the children. Appellant should be held responsible for an equitable portion of the amount as arrearages. While arrears may be appropriately retained in the face of reduced income, if it calls for additional sacrifice on the part of the obligor it must be balanced with concomitant sacrifice on the part of the payee. Here a disproportionate sacrifice was imposed upon the father.
Order vacated and remanded for further proceedings consistent with this Opinion.
Jurisdiction relinquished.
NOTES
[1] According to appellant's brief and the record, he became employed with the State of West Virginia as a hearing examiner for the West Virginia Education Employees Grievance Board on September 1, 1987 at the rate of $30,000 per year. Since that time appellant accepted a position in a law firm in Charleston, West Virginia. After a hearing, a new support Order dated January 4, 1988 was entered which required appellant pay $426 per month, plus $76 per month on the joint obligation and arrearages this is a guideline figure based on the parties' monthly income.
[2] We recognize appellant had a continuing obligation under both Orders to pay $76 a month on the parties' joint obligation.
[3] Appellant failed to report his expenses.
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632 F. Supp. 1456 (1986)
Kenneth DONAHUE and Nomad Lawson, Plaintiffs,
v.
RHODE ISLAND DEPARTMENT OF MENTAL HEALTH, RETARDATION AND HOSPITALS, By and Through its Director, Thomas D. ROMEO, the State of Rhode Island, By and Through its Treasurer, Roger Begin, and John Doe, Richard Roe and Peter Poe, Defendants.
Civ. A. No. 84-0411-S.
United States District Court, D. Rhode Island.
April 17, 1986.
*1457 *1458 Hutton & Hickey, Edward C. Roy, Roney & Labinger, Lynette Labinger, Providence, R.I., for plaintiffs.
Deborah P. Clarke, Legal Counsel R.I. Dept. of Mental Health, Retardation & Hospitals, Cranston, R.I., and Arlene Violet, Atty. Gen., Richard B. Wooley, Sp. Asst. Atty. Gen., Providence, R.I., for defendants.
OPINION
SELYA, District Judge.
This is a civil action originally brought by Kenneth Donahue against the Rhode Island Department of Mental Health, Retardation and Hospitals (MHRH), the state of Rhode Island, and several unidentified state employees. MHRH is a part of the executive branch of state government. For ease in reference, the defendants, collectively, will be referred to as "MHRH" or "the state."
Donahue's amended complaint is in two counts. He seeks, first, a declaration that the Rhode Island statute governing the emergency commitment of alcoholics, R.I. Gen. Laws § 40.1-4-11 (Supp.1985), transgresses the guarantees of the federal Constitution. His second statement of claim is more personalized: he avers in substance that, in the course of his commitment by MHRH under the statute, various state actors failed to honor rights secured to him by the law and by the regulations promulgated thereunder, thereby violating his constitutionally protected liberty interests and paving the way for an award of money damages. Nomad Lawson subsequently filed virtually identical claims against the state.[1]
After certain preliminary skirmishing (not material here), this court on September 13, 1985 bifurcated the claims and ordered a preliminary hearing, Fed.R.Civ.P. 12(d), as to count I of the amended complaint. Following an extended briefing period, oral arguments were entertained on December 6, 1985. Thereafter, a supplementary hearing was held, at which time a variety of documentary evidence anent the circumstances of the plaintiffs' commitments was introduced into evidence. Decision having been reserved, this opinion comprises the court's findings and conclusions concerning the constitutionality vel non of the statute at issue.
I. THE STATUTORY SCHEME
In order to put this matter into proper perspective, it is necessary first to examine the methodology which the Rhode Island General Assembly has adopted for dealing governmentally with the problems of alcoholism in modern society.
The rudiments of the statutory framework were set in place some thirty-five years ago. See P.L.1951, ch. 2755, §§ 1-22. The enactment was substantially revised and augmented some twenty years later, see P.L.1972, ch. 130, § 1, and renamed as the Alcoholism and Intoxication Treatment Act RIAITA). Id. at § 2. This reformulation followed upon the heels of, and was plainly influenced by, the publication of the proposed Uniform Alcoholism and Treatment Act, 9 U.L.A. 57-110 (1971) (Uniform Act). The RIAITA was further amended at various intervals, e.g., P.L. 1973, ch. 186, § 1; P.L.1973, ch. 196, § 1; P.L.1977, ch. 217, § 1; P.L.1979, ch. 364, §§ 1-2, and was further modified in 1984. See P.L.1984, ch. 122, § 1. In that same legislative session, the RIAITA was reenacted effective May 4, 1984, see P.L.1984, *1459 ch. 81, § 4, and is now codified as R.I.Gen. Laws §§ 40.1-4-1 to 40.1-4-19 (1984 & Supp.1985). It is this most current version of the RIAITA which the plaintiffs challenge in this proceeding.
The tone of the Act is reflected in its declaration of policy, which announces:
The problem of alcoholism, with its attendant effects upon the economic condition of alcoholics and those dependent upon them, and the substantial physical deterioration brought about by the misuse of alcohol, has, as shown by the studies, become more and more a major concern of government. Those who, through the misuse of alcohol, adversely affect their health and their economic independence have in recent years increased in number. This chapter is designed to provide proper treatment for those who have been habitually misusing alcohol as a beverage. It is the further policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society.
R.I.Gen.Laws § 40.1-4-1.
The Act then spells out a litany of defined terms, id. at § 40.1-4-2, several of which are of critical importance at this juncture:
(1) "Alcoholic" means a person who habitually lacks self-control as to the use of alcoholic beverages, or uses alcoholic beverages to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted;
* * * * * *
(6) "Intoxicated person" means a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol;
(7) "Incapacitated by alcohol" means a person, who as a result of the use of alcohol is intoxicated to such an extent that he is unconscious or has his judgment otherwise so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment;
* * * * * *
(9) "Treatment" means the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation and career counseling, which may be extended to alcoholics and intoxicated persons.
R.I.Gen.Laws § 40.1-4-2(1), (6), (7), (9).
MHRH is given broad powers to plan, establish, maintain, administer, supervise, and coordinate programs for the care and treatment of alcoholics and intoxicated persons, e.g., R.I.Gen.Laws § 40.1-4-3, and is charged with substantial duties in these respects. E.g., id. at § 40.1-4-4. These duties embrace the establishment of "a comprehensive and coordinated program for the treatment of alcoholics and intoxicated persons," id. at § 40.1-4-6(1), designed to include, inter alia, "emergency treatment." Id. at § 40.1-4-6(2)(a). MHRH sets standards applicable to both public and private treatment facilities, id. at § 40.1-4-7, and is responsible for periodic inspections of all such institutions. Id. Subject to a handful of legislatively-decreed standards, MHRH is empowered to promulgate rules governing the acceptance of persons into approved treatment programs. Id. at § 40.1-4-8. One such legislative directive requires that, to the extent "possible, a patient shall be treated on a voluntary rather than an involuntary basis." Id. at § 40.1-4-8(1)(a).
The RIAITA then proceeds to discuss in considerable detail the voluntary care of alcoholics, R.I.Gen.Laws § 40.1-4-9, treatment and services for intoxicated persons and those incapacitated by alcohol, id. at § 40.1-4-10, and a rubric governing certain (less controversial) aspects of the involuntary commitment of alcoholics, essentially in "nonemergency" situations. Id. at § 40.1-4-12. Interleaved among these substantive provisions is the statute which is at issue here. Its full text follows:
*1460 (1) An intoxicated person who (a) has threatened, attempted, or inflicted physical harm on himself/herself or another and is likely to inflict physical harm on himself/herself or another unless committed, or (b) is incapacitated by alcohol, may be committed to an approved public treatment facility for emergency treatment. A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment.
(2) The certifying physician, spouse, guardian, or relative of the person to be committed, or any other responsible person, may make a written application for commitment under this section, directed to the administrator of the approved public treatment facility. The application shall state facts to support the need for emergency treatment and be accompanied by a physician's certificate stating that he has examined the person sought to be committed within two (2) days before the certificate's date and facts supporting the need for emergency treatment.
(3) Upon approval of the application by the administrator in charge of the approved public treatment facility, the person shall be brought to the facility by a peace officer, health officer, the applicant for commitment, the patient's spouse, the patient's guardian, or any other interested person. The person shall be retained at the facility to which he was admitted, or transferred to another appropriate public or private treatment facility, until discharged under subsection (5).
(4) The administrator in charge of an approved public treatment facility shall refuse an application if in his opinion the application and certificate failed to sustain the grounds for commitment.
(5) When, on the advice of the medical staff, the administrator determines that the grounds for commitment no longer exist, he shall discharge a person committed under this section. No person committed under this section may be detained in any treatment facility for more than ten (10) days. If a petition for involuntary commitment under § 40.1-4-12 has been filed within the ten (10) days and the administrator in charge of an approved public treatment facility finds that grounds for emergency commitment still exist, he may detain the person until the petition has been heard and determined, but no longer than ten (10) days after filing the petition.
(6) A copy of the written application for commitment and of the physician's certificate, and a written explanation of the person's right to counsel, shall be given to the person within twenty-four (24) hours after commitment by the administrator, who shall provide a reasonable opportunity for the person to consult counsel.
R.I.Gen.Laws § 40.1-4-11.
Commitment voluntary or involuntaryunder the RIAITA is attended by a multitude of humanitarian safeguards. E.g., R.I.Gen.Laws § 40.1-4-13(1) (confidentiality of records); § 40.1-4-14(1) (visitation rights; opportunity for consultation with counsel); § 40.1-4-14(2) (privacy of mail and other communications). And, where an admission occurs under the aegis of § 40.1-4-11, MHRH is bound by statute to "provide for adequate and appropriate treatment." R.I.Gen.Laws § 40.1-4-6(3).
II. THE CIRCUMSTANCES OF THE PLAINTIFFS' CONFINEMENTS
According to the stipulation agreed to by the parties and the records entered into evidence on December 16, 1985, Donahue was admitted to a public treatment facility on December 7, 1984 and was discharged on December 11, 1984. Though not unconscious when admitted, Donahue did not surrender himself freely. The basis for his entrance into the facility was § 40.1-4-11(1)(b), that is, he was "incapacitated by alcohol."
Lawson was enrolled into the same treatment facility five times between April 1982 and October 1984, and was not unconscious at the time of any of the admission decisions. Of these five episodes, one was a voluntary commitment under § 40.1-4-9 and is not at issue in this case. On the *1461 other four occasions, a variety of RIAITA provisions were arguably implicated,[2] viz.:
1. From April 21, 1982 to April 25, 1982, and again from October 3, 1984 to October 4, 1984, Lawson was retained under the emergency commitment provisions, §§ 40.1-4-11(1)(a) and (b).
2. From August 20, 1983 to August 23, 1983, the nature of Lawson's admission remains somewhat obscure; based on the documentary evidence, it is difficult to say whether the emergency and/or the voluntary commitment provisions were invoked.
3. From May 2, 1984 to May 7, 1984, Lawson was confined pursuant to the emergency commitment "incapacitated by alcohol" provision, § 40.1-4-11(1)(b).
III. ISSUES PRESENTED
In its present posture, this action focuses the court's attention on a brace of constitutional challenges. Both of these initiatives attempt to test the validity of R.I.Gen. Laws § 40.1-4-11 against standards imposed by the fourteenth amendment to the United States Constitution, and more particularly, the Due Process Clause thereof. The Clause provides in pertinent part that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
Notwithstanding the broad language of the Clause and the salient societal stake in permitting an individual to go about his own affairs unimpeded by the sovereign, even so fundamental a liberty interest may be abridged. The critical questions in this case, therefore, relate less to the state's power to impose statutory conditions on the liberty of an imbiber than to whether or not Rhode Island, in exercising such power, has done so in a manner which comports with the imperatives of the Constitution. That is to say, given the deprivation of liberty which § 40.1-4-11 admittedly works, has the state afforded to those persons who, like Donahue and Lawson, may be caught in the statutory snare all of the process that is "due"?
The plaintiffs suggest that this inquiry must realistically be answered in the negative. They posit two essential reasons in support of their conclusion. First, they view the statutory mise-en-scene as failing to provide adequate procedural safeguards to pass federal constitutional muster. Second, they find § 40.1-4-11 to be so vague, uncertain, and overbroad as to run afoul of the requirements of the Due Process Clause. MHRH, predictably, debunks both of these notions. From the state's perspective, § 40.1-4-11 represents a reasoned and reasonable response to a social problem of compelling state interest. MHRH sees the statute as being closely tailored to suit the most discerning constitutional tastes.
The court will examine each of these bones of contention in an attempt to determine whether or not the plaintiffs' asseverations suffice to tip the exquisite balance of the scales of constitutionality.
IV. PROCEDURAL DUE PROCESS
The plaintiffs contend that R.I.Gen.Laws § 40.1-4-11 does not afford the minimum procedural prophylaxis mandated by the Due Process Clause. The plaintiffs diagnose the statute as fatally infected by a sin of omission: its perceived failure to require a prompt probable cause hearing or some surrogate type of timely compulsory review of the emergency involuntary commitment of intoxicated persons. In the absence of a quick mandatory hearing, the plaintiffs' thesis runs, the legislation's procedural mechanisms provide only "an empty promise" and "illusory protection." See Plaintiffs' Brief at 18.
In the recent past, the Supreme Court has clarified the principle that civil commitment for whatever purpose requires due process protection. See Vitek v. Jones, 445 U.S. 480, 491-92, 100 S. Ct. 1254, 1262, 1263 *1462 (1980); Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979); O'Connor v. Donaldson, 422 U.S. 563, 573-76, 95 S. Ct. 2486, 92-94, 45 L. Ed. 2d 396 (1975); Jackson v. Indiana, 406 U.S. 715, 731-79, 92 S. Ct. 1845, 1854-76, 32 L. Ed. 2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 1052, 31 L. Ed. 2d 394 (1972). In an oft-cited concurrence, Chief Justice Burger declaimed that "[t]here can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law." O'Connor, 422 U.S. at 580, 95 S. Ct. at 2496 (Burger, C.J., concurring). In Vitek, a case which likewise dealt with the commitment of patients to a mental hospital, the Court embroidered this theme:
[F]or the ordinary citizen, commitment ... produces "a massive curtailment of liberty," and in consequence "requires due process protection." The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment ... "can engender adverse social consequences to the individual" and that "[w]hether we label this phenomena `stigma' or choose to call it something else ... we recognize that it can occur and that it can have a very significant impact on the individual." Also, "[a]mong the historic liberties" protected by the Due Process Clause is the "right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security."
445 U.S. at 491-92, 100 S. Ct. at 1262-63 (citations omitted).
The state's ability to commit its citizens involuntarily has a double-pillared foundation: it is bottomed upon both the sovereign's parens patriae interest "in providing care to its citizens who are unable to care for themselves," Addington, 441 U.S. at 426, 99 S. Ct. at 1809, and the state's police power interest in preventing individuals from endangering others. See Rogers v. Okin, 634 F.2d 650, 654-59 (1st Cir.1980), vacated and remanded sub nom. Mills v. Rogers, 457 U.S. 291, 102 S. Ct. 2442, 73 L. Ed. 2d 16 (1982). See also Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir.1983). Because involuntary confinement is "a massive curtailment of liberty," Humphrey, 405 U.S. at 509, 92 S. Ct. at 1052,
a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.
O'Connor, 422 U.S. at 576, 95 S. Ct. at 2494.
To determine whether the procedures used to confine an individual against his or her will comport with the imperatives of due process, so as not to immure those "capable of surviving safely in freedom," id., it is incumbent upon the state, in the first instance, and ultimately upon the judiciary, delicately to integrate the factors set out by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976):
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
See also Parham v. J.R., 442 U.S. 584, 599-617, 99 S. Ct. 2493, 2502-11, 61 L. Ed. 2d 101 (1979) (applying balancing test to voluntary commitment of children to state mental hospitals).
In juxtaposing due process principles with the involuntary confinement of the mentally ill, the Court has stressed that, even if the "original confinement was founded upon a constitutionally adequate basis, ... it could not constitutionally continue after that basis no longer existed." O'Connor, 422 U.S. at 574-75, 95 S. Ct. at 2493 (citations omitted). See also id. at *1463 580, 95 S. Ct. at 2496 (Burger, C.J., concurring) ("[T]he reasons for committing a particular individual must be established in an appropriate proceeding.... [C]onfinement must cease when those reasons no longer exist."). But, these precepts are not self-explanatory: both the appropriateness and the timing of such proceedings must be measured in the context of a particular case. Despite the fact that the tenets of due process date back to the beginnings of the republic and beyond, the precise ways of due process are not carved in granite. "It has been said so often by [the Supreme] Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972).
Though there is no surefire litmus test by which the quality of a given subset of procedures can be measured with assurance, some lines have been distinctly drawn. It is settled that the hearing which determines the constitutionality of the confinement need not take place before the deprivation occurs. To be sure, in a case concerning a seizure of property, the Court has stated that "an individual [must] be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 786, 28 L. Ed. 2d 113 (1971) (emphasis original; footnotes omitted). But, emergency commitment of intoxicated persons represents exactly the sort of "extraordinary situation" of which Boddie speaks. A strong comparison can be drawn to the annals of psychiatric affliction: where the state has involuntarily committed a mentally ill person on an emergency basis, courts have been unanimous in holding that a deprivation hearing was not required. See, e.g., Luna v. Van Zandt, 554 F. Supp. 68, 72 (S.D.Tex.1982); Doe v. Gallinot, 486 F. Supp. 983, 993 (C.D.Cal.1979), aff'd, 657 F.2d 1017 (9th Cir.1981); Suzuki v. Quisenberry, 411 F. Supp. 1113, 1125-26 (D.Hawaii 1976); Coll v. Hyland, 411 F. Supp. 905, 910 (D.N.J.1976) (three-judge court); Bartley v. Kremens, 402 F. Supp. 1039, 1049 (E.D.Pa.1975) (three-judge court), vacated, 431 U.S. 119, 97 S. Ct. 1709, 52 L. Ed. 2d 184 (1977); Lynch v. Baxley, 386 F. Supp. 378, 387 (M.D.Ala.1974) (three-judge court); Bell v. Wayne County General Hospital at Eloise, 384 F. Supp. 1085, 1098 (E.D.Mich.1974) (three-judge court); Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D.Wis.1972) (three-judge court), vacated & remanded, 414 U.S. 473, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974); Logan v. Arafeh, 346 F. Supp. 1265, 1268 (D.Conn.1972) (three-judge court), aff'd sub nom. Briggs v. Arafeh, 411 U.S. 911, 93 S. Ct. 1556, 36 L. Ed. 2d 304 (1973). The emergency commitment of alcoholics has been accorded precisely the same kind of judicial reception.
The guidelines grow considerably more indistinct, however, in evaluating what process is due after such a deprivation of liberty has occurred, that is, the adequacy and chronometry of the post-confinement review. In harmony with the more enlightened of the mental illness cases, it has consentiently been held that the individual "must be given a hearing within a reasonable time to test whether the confinement is based upon probable cause." In re Barnard, 455 F.2d 1370, 1374-75 (D.C.Cir. 1971). See also Project Release, 722 F.2d at 974; Luna, 554 F.Supp. at 72; French v. Blackburn, 428 F. Supp. 1351, 1355 (M.D.N. C.1977) (three-judge court), aff'd, 443 U.S. 901, 99 S. Ct. 3091, 61 L. Ed. 2d 869 (1979); Coll, 411 F.Supp. at 910; Doremus v. Farrell, 407 F. Supp. 509, 515 (D.Neb.1975) (three-judge court); Bartley, 402 F.Supp. at 1049; Lynch, 386 F.Supp. at 388; Bell, 384 F.Supp. at 1098; Logan, 346 F.Supp. at 1268. There has been no similar consensus on the amount of time which may elapse before a probable cause hearing occurs. Indeed, the judicial cacophony has been deafening. Several courts, for example, have upheld statutes which do not provide involuntarily detained individuals with a hearing for periods of ten days or longer. See Project Release, 722 F.2d at 974-75 (fifteen days); French, 428 F.Supp. at 1355 *1464 (ten days); Coll, 411 F.Supp. at 910-11 (twenty days); Logan, 346 F.Supp. at 1268-70 (forty-five days). On the other hand, it has sometimes been held that the sovereign must afford hearings within much more tightly constricted time limits. See Doe, 657 F.2d at 1023-24 (hearing must occur within three days); Barnard, 455 F.2d at 1375 (seven days); Doremus, 407 F.Supp. at 515 (five days); Bartley, 402 F.Supp. at 1049 (three days); Lynch, 386 F.Supp. at 388 (seven days); Bell, 384 F.Supp. at 1098 (five days); Lessard, 349 F.Supp. at 1083 (two days).
What emerges most clearly from these murky environs is that no specific time limit can automatically be accorded talismanic effect. Although due process dictates that one who has been (or is in jeopardy of being) deprived of a constitutionally sacrosanct interest must be ceded an opportunity to be heard "at a meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1945), the term "meaningful" is not susceptible to fine calibration. As one three-judge district court accurately noted:
The issue ... should not be phrased, nor should it be resolved, in terms of required days, hours, or minutes, but should rather turn on the basis of the interests involved and fundamental fairness. The due process clause does not deal in magic numbers, but fundamental fairness.
French, 428 F.Supp. at 1355.
This court turns, therefore, to a consideration of the triptych which Mathews v. Eldridge, 424 U.S. at 335, 96 S. Ct. at 903, has portrayed as governing the due process equation.
A. Private Interests
With respect to the "private interest that will be affected by the official action," there can be little dispute that any involuntary detention is a "massive curtailment of liberty." Humphrey, 405 U.S. at 509, 92 S. Ct. at 1052. Yet, the ten day detention permitted under R.I.Gen.Laws § 40.1-4-11 does not carry with it the potential for abuse commonly associated with extreme deprivations of freedom. In this wise, the RIAITA is vastly different from the statute at issue in O'Connor, 422 U.S. at 574-76, 95 S. Ct. at 2493-94, where an individual was confined for fifteen years "for care, maintenance, and treatment" without a showing of dangerousness, or the one at bar in Jackson, 406 U.S. at 736-39, 92 S. Ct. at 1857-58, where an individual incompetent to stand trial could be impounded indefinitely without reference to dangerousness. Under the terms of the RIAITA, an intoxicated person cannot be taken into custody merely for safekeeping. Rather, the individual is "committed to an approved public treatment facility for emergency treatment." R.I.Gen.Laws § 40.1-4-11(1) (emphasis added). Courts, with good reason, have considered the assurance of treatment significant to the due process equation. See, e.g., Luna, 554 F.Supp. at 73-74; French, 428 F.Supp. at 1354-55; Logan, 346 F.Supp. at 1269.
In French, for example, the court upheld a North Carolina statute, finding that
although [the commitment proceeding] involves a deprivation of liberty, the very purpose of that deprivation is not solely to protect society but also has as a purpose the protection, treatment, and aid of an individual who cannot or will not protect himself.
428 F.Supp. at 1354.
The Logan court made the same point in a slightly different way, indicating that a
fifteen day leeway after initial commitment before judicial proceedings must be begun is not simply for the purpose of delay.... There is a compensating advantage to the committed person because in many cases during this period the medical staff at the hospital can adequately alleviate his mental illness or by use of nonemergency diagnostic procedures determine that he is not a "danger to himself or others."
346 F.Supp. at 1268-69. Thus, although any involuntary confinement has a significant impact on an individual's liberty, the emergency detention authorized under § 40.1-4-11 does not tip the weighbeam *1465 irretrievably in favor of an earlier (mandatory) probable cause hearing. The RIAITA scheme limits the infringement on an individual's private interests by requiring immediate medical treatment of those detained involuntarily pursuant to the emergency provision. In that sense, it compensates for the curtailment of freedom (at least in part) by the assurance of care and treatment.
B. Public Interest
The state's interest in preventing individuals from harming themselves or others, which is based upon government's police and parens patriae powers, is a preeminent one. State officials must have the flexibility to detain dangerous individuals in exigent circumstances without undue interference or needlessly burdensome restrictions. The Supreme Court has been wary of laying difficult procedural obstacles in the path of civil commitment for fear that the state's hands will become tied. Thus, in rejecting the application of the "reasonable doubt" standard to civil commitments, the Court noted:
[T]he reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment.
Addington, 441 U.S. at 432, 99 S. Ct. at 1813 (emphasis added). See also Project Release, 722 F.2d at 975 (quoting Addington in rejecting a challenge to New York's emergency commitment scheme).
Following the Supreme Court's lead, lower courts which have examined involuntary detention statutes have looked to the state's objectives in the early days of quarantine. It seems apodictic "that the hospital authorities must be allowed some time to conduct adequate testing and observation of the patient so that a diagnosis can be made." Coll, 411 F.Supp. at 911. See also Logan, 346 F.Supp. at 1269. Treatment in this early phase may not only aid the individual, but "also may be necessary to an adequate and informed hearing on the necessity of ... confinement." French, 428 F.Supp. at 1355. In evaluating the constitutionality of Rhode Island's statute, "[c]onsideration also must be given to the necessities of court administration and the opportunity for counsel to prepare for an effective hearing." Coll, 411 F.Supp. at 911. When these ingredients are blended into the mix, the RIAITA emergency commitment provisions appear roughly synchronous with the public weal.
C. Risk of Erroneous Deprivation
Finally, the court must consider the "risk of erroneous deprivation of [liberty] through the procedures used." Mathews, 424 U.S. at 335, 96 S. Ct. at 903. The Supreme Court has acknowledged the possibility of mistaken confinement of the mentally ill. See Addington, 441 U.S. at 428-29, 99 S. Ct. at 1810-11. It has made the same point as to alcoholics. Powell v. Texas, 392 U.S. 514, 529-31, 88 S. Ct. 2145, 2152-53, 20 L. Ed. 2d 1254 (1968). In concluding that civil commitment proceedings should be governed by a standard of proof "greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases," Addington, 441 U.S. at 433, 99 S. Ct. at 1813, the Court emphasized that judges "must be mindful that the function of legal process is to minimize the risk of erroneous decisions." Id. at 425, 99 S. Ct. at 1809. Because the Court found that there "is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct," id. at 427, 99 S. Ct. at 1810, it determined that "[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any harm to the state." Id.
Several courts which have evaluated emergency detention statutes have paid considerable heed to the chance of error. According to one court, "[t]he question ... is what procedures are needed to minimize the risk of errors in confinement decisions without undercutting `efforts to further the legitimate interest of both the state and the patient that are served by' extended delay." Luna, 554 F.Supp. at 74 (quoting *1466 Addington, 441 U.S. at 430, 99 S. Ct. at 1812). Luna found that "the risk of error in all commitment decisions is relatively high." 554 F. Supp. at 74. Another court, after extensive assessment of county and hospital release statistics, Doe, 486 F.Supp. at 989-90, found a "substantial risk of erroneous application." Id. at 992. Both Luna and Doe concluded that, largely for this reason, due process required a probable cause hearing within seventy-two hours. Luna, 554 F.Supp. at 76; Doe, 486 F.Supp. at 994. These holdings are summed up well in Doe:
[The state's] benevolent motivation cannot be a substitute for procedural safeguards. ... "Our concepts of due process would not tolerate such a `tradeoff.'" The central question is not one of motivation but of risk of error and the procedure necessary to minimize it.
486 F.Supp. at 994 (quoting O'Connor, 422 U.S. at 589, 95 S. Ct. at 2500 (Burger, C.J., concurring)).
It is surpassingly difficult to quarrel with the factual premise: any court disinclined to bury its head in the sand must recognize that the risk of mistakes is omnipresent in these straitened circumstances. Still, this element, alone and in isolation, cannot be dispositive. Civilization has discovered few benefits which do not carry the unwanted baggage of corollary costs. And, no matter how high the fence of procedural protections is raised, all possibility of error cannot be obliterated short of total governmental paralysis.
D. The Calculus
It must be remembered that the chronometry of a mandatory probable cause hearing cannot be studied in isolation. Rather, this court's task is to determine whether the period which may elapse short of a hearing is "part of a statutory scheme which, taken as a whole, renders [it] fundamentally fair in accordance with due process." Project Release, 551 F.Supp. at 1307. See also Project Release, 722 F.2d at 974-75 (finding New York law constitutional upon perscrutation of the "statute as a whole"). Given our paucity of knowledge as a society about the origins and ways of alcoholism, "fair" solutions are bound to be elusive, no matter how dogged the quest. Mathematical precision is, in this nether region, a mere velliety; we can, at best, aspire to achieve equitable approximations.
There is little doubt that the government's decision to detain an individual without a predeprivation hearing is peculiarly prone to the hazards of error. Nevertheless, in a carefully-balanced appraisal of the panorama, the state's interest in swiftly restraining a person who is dangerous or unable to cope overwhelms the individual's interest in an immediate predeprivation hearing and the risk of imperfection endemic to this procedure. The focal point of inquiry, then, is the extent to which postdeprivation procedures may be mistakeprone and "the probable value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335, 96 S. Ct. at 903.
The statute at issue, R.I.Gen.Laws § 40.1-4-11, is not devoid of protective coloration. The application for emergency treatment, which can be made by "[t]he certifying physician, spouse, guardian or relative of the person to be committed," must be "accompanied by a physician's certificate." R.I.Gen.Laws § 40.1-4-11(2). The application must then be approved by the administrator of the treatment facility, id. at § 40.4-11(3), who "shall refuse an application if in his opinion the application and certificate failed to sustain the grounds for commitment." Id. at § 40.1-4-11(4). After confinement has become a reality, the administrator must discharge the individual if and when "grounds for commitment no longer exist." Id. at § 40.1-4-11(5).[3] Moreover, the detainee is not left in the dark with respect to the circumstances of the restraint. The statute provides:
*1467 A copy of the written application for commitment and of the physician's certificate, and a written explanation of the person's right to counsel, shall be given to the person within twenty-four (24) hours after commitment by the administrator, who shall provide a reasonable opportunity for the person to consult counsel.
R.I.Gen.Laws § 40.1-4-11(6).
It is readily apparent from the foregoing analysis that Rhode Island supplies an internee with a number of opportunities to seek to palliate the state's actions and with a variety of means by which to implement such remediation.[4] Though there is no (automatic) next-day hearing, the array of procedural protections is a formidable one and the entire process seems reasonably calculated to winnow out mistakes in short order.
This is not to say that a probable cause hearing within forty-eight or seventy-two hours, as suggested by the plaintiffs, would not be of some (slight) value in reducing the risk of error. To be sure, such a hearing might weed out a few bevues committed by hospital personnel. (Such a sudden confrontation might, of course, cut in the opposite direction; it might well, by shortstopping diagnostic time, increase the risk of error on the side of permissiveness.) But, due process is not perfect process. A number of other considerations suggest that, in the precincts controlled by R.I.Gen. Laws § 40.1-4-11, such an early hearing is not a constitutional necessity.
First, the hearing requirement may not be as effective in reducing mistakes as the plaintiffs prefer to believe. It is altogether likely that many of the detainees would not be sufficiently detoxified within two or three days to participate meaningfully in a probable cause hearing. It is also reasonable to conclude that any preparation undertaken by hospital authorities during this brief period would be cursory at best and wholly inadequate at worst. See Coll, 411 F.Supp. at 911. At the least, the necessity for such preparation would detract from ongoing attention to patient needs. Cf. Parham, 442 U.S. at 606, 99 S. Ct. at 2506. ("One factor that must be considered is the utilization of the time of [doctors and specialists] in preparing for and participating in hearings rather than performing the task for which their special training has fitted them.")
Second, the hearing requirement is bound to place a huge fiscal and administrative burden on the state. Even a proceeding without the full panoply of procedures usually associated with a synoptic commitment hearing[5] would be extremely *1468 costly. As one district court has emphasized, "[d]ue process does not ... require that the focus of State energies and moneys be shifted from the evaluation and treatment ... to strict compliance with detailed procedural requirements." Project Release v. Prevost, 551 F. Supp. 1298, 1307 (E.D.N.Y.1982). Cf. Parham, 442 U.S. at 605-06, 99 S. Ct. at 2506 ("The State ... has a genuine interest in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to the hospital rather than to time-consuming procedural minuets before the admission."); French, 428 F.Supp. at 1355 ("During [the ten day period before the hearing] the respondent is receiving treatment, which may not only aid his mental health, but which also may be necessary to an adequate and informed hearing on the necessity of his commitment."). In this day and age, no state government enjoys the luxury of limitless funds and personnel; the decision to funnel scare resources into care and treatment, rather than into an earlier round of procedural wrangling, strikes a responsive chord.
Third, and most important, the mandatory hearing requirement which the plaintiffs would have this court impose runs a risk far greater than that of an aleatory deprivation in a specific case: such a procedure might well defeat, or at least seriously wound, the state's goal of caring for dangerously intoxicated individuals. If the state's resources are devoted to preparation and conduct of mandatory probable cause hearings, and are, concomitantly, siphoned away from treatment and care, then the decriminalization and "continuum of treatment" that the RIAITA seeks to achieve, see R.I.Gen.Laws § 40.1-4-1, will be subverted.
The court recognizes, of course, that there is little magic in any precise span of time. It may well be that Rhode Island could accomplish its legitimate objectives under the RIAITA within a narrower window than ten full days before a probable cause hearing becomes obligatory. Indeed, the provision of the Uniform Act upon which this state statute is patterned declares that "[n]o person committed under this section may be detained in any treatment facility for more than [5] days." Uniform Act § 13(e), 9 U.L.A. 87 (1971). What is more, as originally enacted, § 40.1-4-11 contained the five day maximum, see P.L. 1972, ch. 130, but this was extended to ten days in 1984. See P.L.1984, ch. 122, § 1.[6] This court cannot say that the five day period was not reasonable. But, the decision to double the span was, within broad limits, one for the General Assembly to make.
Courts must be reluctant to usurp legislative prerogatives and must grant a measure of deference to the states in fashioning choices. "The judiciary has no monopoly on sociological wisdom. So long as the state has chosen a format which meets the federal constitutional minimum ... [a federal] court cannot in conscience interfere." Oaks v. District Court, 631 F. Supp. 538, 549 (D.R.I.1986). This court may think that Rhode Island could make do with something less than the full ten days, but such finetuning is beyond the court's proper province. "The inquiry is not whether this court thinks a shorter period might be desirable or of greater benefit to the patient, but whether the time span [fixed by the statute] is unconstitutional." Coll, 411 F.Supp. at 910. See also Logan, 346 F.Supp. at 1269 ("While it is possible that *1469 all of this could be concentrated into a shorter period of time, we are satisfied that the time which is allowed by the statute is not so unreasonably long as to amount to a denial of due process.").
Nor is the fact that some states have chosen shorter time periods for emergency detention under comparable circumstances[7] determinative of the issue. In Addington, the Court recognized that, in a pluralistic society, such disparities must be tolerated:
The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum.
441 U.S. at 431, 99 S. Ct. at 1812.
Thus, in rejecting a constitutional challenge to New York's involuntary and emergency commitment statutes, which permit, respectively, sixty day and fifteen day detentions without mandatory judicial review, the Second Circuit emphasized: "That some states have chosen to limit pre-hearing confinement to a shorter period does not mean that such a model `is needed or is even adaptable to the needs of all states.'" Project Release, 722 F.2d at 975 (quoting Addington, 441 U.S. at 431, 99 S. Ct. at 1812) (footnote omitted).
So long as the statute rises to the level of the constitutional floor, this court may not quibble with the Rhode Island General Assembly's selection of a maximum ten day commitment without a hearing. The judiciary must be circumspect in reining in any inclination to substitute judicial wisdom for legislative wisdom on matters of policy. As was said by a sister court in approving a ten day involuntary detention for the mentally ill:
In light of the fact that the inquiry throughout the proceedings is aimed at the respondent's mental health, this Court is very reluctant to substitute another judgment in lieu of the legislature's deference to qualified medical opinion at these initial stages of the involuntary commitment proceedings.
French, 428 F.Supp. at 1355. See also Logan, 346 F.Supp. at 1269.
This court is particularly reticent to interfere in a scheme which affords care to individuals incapacitated by alcohol. Like the Second Circuit, this court rejects "the premise that civil commitment is tantamount to incarceration for criminal conduct. We acknowledge the deprivation of liberty involved in involuntary civil commitment, but are not prepared to invoke the same procedural standards required in the criminal context." Project Release, 722 F.2d at 974-75.[8] It makes minimal sense to treat the emergency commitment of alcoholics as tantamount to the imprisonment of felons, especially since the state legislature has taken great pains to distinguish between the two. See, e.g., R.I.Gen.Laws § 40.1-4-1 ("It is the ... policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of *1470 alcoholic beverages...."); id. at § 40.1-4-16 (limiting application of state laws and/or municipal ordinances punishing drunkenness).
The Supreme Court has never issued an opinion regarding the length of time the state may involuntarily detain an individual thought to be dangerous without affording a probable cause hearing. The Court's summary affirmances of the decisions in Logan, 346 F. Supp. 1265 (D.Conn.1972) (three-judge court), aff'd sub nom. Briggs v. Arafeh, 411 U.S. 911, 93 S. Ct. 1556, 36 L. Ed. 2d 304 (1973) and French, 428 F. Supp. 1351 (M.D.N.C.1977) (three-judge court), aff'd, 443 U.S. 901, 99 S. Ct. 3091, 61 L. Ed. 2d 869 (1979) are, however, of considerable import. In Logan, the Court sustained a decision upholding the constitutionality of the Connecticut scheme allowing involuntary detention for up to forty-five days without a hearing. Logan, 346 F.Supp. at 1268-70. In French, the Court approved a ten day delay before a mandatory hearing. French, 428 F.Supp. at 1355-56. The ten day detention under Rhode Island's emergency commitment provision, § 40.1-4-11, is well within the ambit of the two Supreme Court affirmances.
These dispositions must, in the order of things, be treated as binding authority because "`[v]otes to affirm summarily ... are votes on the merits of a case.'" Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 2289, 45 L. Ed. 2d 223 (1975) (quoting Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S. Ct. 978, 979, 3 L. Ed. 2d 1200 (1959)). In several cases since Logan, including French, lower courts have found the Supreme Court's summary affirmances dispositive. E.g., Project Release, 551 F.Supp. at 1307 n. 5; French, 428 F.Supp. at 1356; Coll, 411 F.Supp. at 910. Although this court does not view the issue as foreclosed by those affirmances after all, the length of the delay must, in any particular litigation, be considered in the albedo of the statute as a whole, including the extent of its (other) procedural safeguardsthey lend powerful support to the claim of legitimacy in this instance.
Some comment should be addressed to two recent decisions which have attempted to deflect Logan in order to hold that the federal Constitution mandates a hearing within seventy-two hours. See Luna, 554 F.Supp. at 73-76 (holding fourteen day delay unconstitutional and distinguishing Logan); Doe, 486 F.Supp. at 993-94 (holding seventeen day delay unconstitutional and distinguishing Logan). This court finds those endeavors to be unpersuasive in the circumstances at bar.
The Luna court relied heavily on the absence of any meaningful rehabilitation. The court stated that "[w]hen, as [in Texas], a state court orders a proposed patient committed for `safekeeping' only, the treatment goal which justified the result in Logan is absent." Luna, 554 F.Supp. at 73. Even if this was a viable distinction (a matter as to which no opinion need be expressed by this court), it is clear that the Rhode Island mosaic goes far beyond warehousing. To the contrary, it provides for immediate treatment in no uncertain terms.
Doe tacked in another direction. There, the court found special illumination in the Supreme Court's opinion in O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975): "Since O'Connor, ... it is clear that benevolent motivation cannot be a substitute for procedural safeguards." Doe, 486 F.Supp. at 994. This court discerns no such incandescence in O'Connor. The decision in that case in no way undermines the force of the Logan affirmance. The sockdolager is simply this: the Court's affirmance in French, substantially postdating the issuance of its opinion in O'Connor, dispels any notion that the Court views the Constitution as requiring a hearing in the earliest days of detention.[9]
This court finds that the procedures employed in the challenged statute, § 40.1-4-11, the additional remedy of the *1471 writ of habeas corpus, and the protections available to a detainee should the state seek to extend confinement beyond ten days, see § 40.1-4-12, combine to provide due process safeguards sufficient to meet the federal constitutional minima. Though the period allotted falls toward the outermost periphery of what is permissible, it does not cross that frontier. Ten days is a long time but it is not unreasonably long in the constitutional sense, having in mind the cross-currents which ebb and flow in these circumstances. Put another way, the benchmark which the General Assembly has set, while perhaps more generous to the state than would be the case in the best of all possible worlds, represents a rational exercise of legislative judgment; it is not so unduly prolonged as to render the enactment constitutionally infirm.[10]
V. OVERBREADTH AND VAGUENESS
The second string to the plaintiffs' bow is their contention that the standard for emergency commitment under § 40.1-4-11(1)(b) is unconstitutionally vague and overbroad. The full text of § 40.1-4-11(1) reads as follows:
An intoxicated person who (a) has threatened, attempted, or inflicted physical harm on himself/herself or another and is likely to inflict physical harm on himself/herself or another unless committed, or (b) is incapacitated by alcohol, may be committed to an approved public treatment facility for emergency treatment. A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment.
The plaintiffs mount a rifleshot challenge; they do not assign constitutional error to § 40.1-4-11(1)(a), a statutory subset which explicitly requires a finding of potential dangerousness to self or others before detention. Rather, Donahue and Lawson level their fire exclusively at § 40.1-4-11(b), which permits the state involuntarily to detain individuals who are "incapacitated by alcohol." This grant of power, they assert, transgresses substantive due process principles.
The operative term "incapacitated by alcohol" is defined in § 40.1-4-2(7) as signifying "a person, who as a result of the use of alcohol is intoxicated to such an extent that he is unconscious or has his judgment otherwise so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment." Once again, the plaintiffs take careful aim. They do not snipe at the portion of the definition relating to unconsciousness. (By stipulation, the parties have agreed that Donahue and Lawson were not unconscious on the occasions when they were committed involuntarily to the public treatment facility; thus, the unconsciousness criterion is not at issue in this case.) Rather, the plaintiffs contend that the second fascicle *1472 of the definition is so loosely-worded as to permit the state to detain individuals who are not dangerous to themselves or to others, and that the law is in that wise impermissibly overbroad and fatally vague.
Several years ago, the Supreme Court outlined the manner in which a federal court should examine a facial challenge to the overbreadth and vagueness of a law:
A "facial" challenge ... means a claim that the law is "invalid in toto and therefore incapable of any valid application." In evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S. Ct. 1186, 1191 n. 5, 71 L. Ed. 2d 362 (1982) (quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S. Ct. 1209, 1223, 39 L. Ed. 2d 505 (1974) and citing Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 2300, 33 L. Ed. 2d 222 (1972)).
The Court indicated that the initial judicial "task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct" and is therefore overbroad. Hoffman Estates, 455 U.S. at 494, 102 S. Ct. at 1191. Only thereafter does the question of vagueness come into play. Id. at 494-95, 102 S. Ct. at 1191-92. This court, in fidelity to these marching orders, turns first to the issue of overbreadth.
A. Overbreadth
With respect to overbreadth challenges, [The Supreme] Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
NAACP v. Alabama, 377 U.S. 288, 307, 84 S. Ct. 1302, 1314, 12 L. Ed. 2d 325 (1964).
In NAACP v. Alabama, the Court reviewed its prior precedents, see id. at 307-08, 84 S. Ct. at 1314, including Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940), to the effect that "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." The Court likewise quoted with approbation from Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 331 (1960):
[E]ven though the governmental purpose be substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.
Certainly, as indicated in Part IV ante, it is permissible for the state compulsorily to detain a person who poses a threat to himself or to others. But, "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." O'Connor, 422 U.S. at 576, 95 S. Ct. at 2494. Yet, although a statute which allows state officials imperiously to commit nondangerous individuals may indeed be subject to constitutional attack, the overbreadth doctrine is not properly invoked in this instance.
The law does not hold that a statute is unconstitutionally overbroad merely because applications of it which go beyond acceptable constitutional boundaries can be imagined. Cantwell, 310 U.S. at 307-11, 60 S. Ct. at 906; see Broadrick v. Oklahoma, 413 U.S. 601, 614, 93 S. Ct. 2908, 2917, 37 L. Ed. 2d 830 (1973). The function of facial overbreadth adjudication, the Court has noted, is "a limited one." Id. at 615, 93 S. Ct. at 2917. Although expansively worded laws may deter protected activities "to some unknown extent, there comes a point where that effect ... cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing a statute against conduct that is admittedly within its power to proscribe." Id. Thus, "particularly where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation *1473 to the statute's plainly legitimate sweep." Id.
This court discerns no substantial overreaching of this genre in Rhode Island's legislatively-issued warrant to detain an individual whose "judgment [is] so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment." R.I.Gen.Laws § 40.1-4-2(7). If it is hypothetically possible for a nondangerous individual to be detained under this statutory definition, it is because the definition, like any definition, is somewhat less than exactly precise. Such imprecision, which is in the nature of language itself, bespeaks no more than "the intolerable wrestle with words and meanings" of which Eliot warned;[11] To the extent that the ordinance sounds constitutional overtones, it implicates vagueness concerns rather than overbreadth. At bottom, the plaintiffs' objection must be that they cannot determine whether the "incapacitated by alcohol" standard encompasses behavior which may not permissibly be regulated by the state; that is a vagueness challenge. See Hoffman Estates, 455 U.S. at 497 n. 9, 102 S. Ct. at 1192 n. 9 ("If [appellee] is objecting that it cannot determine whether the ordinance regulates items with some lawful uses, then it is complaining of vagueness.").
Overbreadth is not the issueand passionate rhetoric will not make it so. It avails the plaintiffs nothing to paint the lily by the undisciplined use of an additional epithet. The court therefore regards this aspect of the plaintiffs' challenge as "a periphrastic strawman, as easily dismissed as raised." Golemis v. Kirby, 632 F. Supp. 159 (D.R.I.1985). The true battleground here is the question of excessive vagueness.
B. Vagueness
A bill is void for vagueness if it "`fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,'" Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972) (quoting United States v. Hariss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 2d 989 (1954)), or if it "permits and encourages an arbitrary and discriminatory enforcement of the law." Id. at 170, 92 S. Ct. at 847. See also Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926); Precious Metals Associates, Inc. v. Commodity Futures Trading Commission, 620 F.2d 900, 906-07 (1st Cir.1980).[12]
The plaintiffs' attack on § 40.1-4-11 strikes only tangentially at the concern that the "incapacitated by alcohol" standard fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned, 408 U.S. at 108, 92 S. Ct. at 2298. The statute was not designed to prohibit or discourage undesirable conduct, but rather to protect individuals who are incapable of controlling their behavior or caring for themselves because of the deleterious effects of alcohol. See generally R.I.Gen.Laws § 40.1-4-1 (declaration of policy, quoted ante). Thus, pre-notification is not really the point. A sister court, in evaluating a standard for civil commitment, wisely rejected the argument that a statute of this sort did not furnish sufficient foreknowledge, remarking:
[E]ven though [the civil commitment standard] may not have provided adequate warning, it would not appear to be *1474 unconstitutional in the civil commitment context where identification for purposes of treatment and prevention of danger to society are the primary goals, not deterrence of undesirable conduct.
Stamus v. Leonhardt, 414 F. Supp. 439, 452.
This conclusion by no means marks the journey's end. The flip side of the vagueness coin must still be confronted head-on. The central thrust of the plaintiffs' asseveration is that the enactment allows state officials overgenerous discretion in determining who is "incapacitated by alcohol" and what constitutes a sufficient condition of incapacitation. This being so, the plaintiffs reason, the statute fails to "provide explicit standards for those who apply [the law]," Grayned 408 U.S. at 108, 92 S. Ct. at 2299, and "impermissibly delegates basic policy matters to [officials] for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Id. at 108-09, 92 S. Ct. at 2299 (footnote omitted). It is upon this argument that the vagueness challenge necessarily stands or falls.
In order accurately to gauge the constitutional adequacy of the "incapacitated by alcohol" standard which the RIAITA imposes, the statutory definition itself must be assayed. Thus, this court must determine whether or not the ceded permission to detain "a person who ... has his judgment otherwise so impaired that he is incapable of realizing or making a rational decision with respect to his need for treatment," R.I.Gen.Laws § 40.1-4-2(7), is prohibitively vague. The court's role in this endeavor, however, is somewhat circumscribed:
The court should examine the facial vagueness challenge and ... should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.
Hoffman Estates, 455 U.S. at 494-95, 102 S. Ct. at 1191 & 1192 (emphasis added; footnote omitted).
Quoting many of its earlier decisions, the Supreme Court in Hoffman Estates, id. at 495 n. 7, 102 S. Ct. at 1191 n. 7 lately indicated that a plaintiff challenging a statute for vagueness faces numerous obstacles:
"[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 714, 42 L. Ed. 2d 706 (1975). See United States v. Powell, 423 U.S. 87, 92-93, 96 S. Ct. 316, 319-20, 46 L. Ed. 2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 36, 83 S. Ct. 594, 597-98, 599, 9 L. Ed. 2d 561 (1963). "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S. Ct. 2547, 2562, 41 L. Ed. 2d 439 (1974). [T]o sustain such a challenge, the complainant must prove that the enactment is vague "`not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'" Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688, 29 L. Ed. 2d 214 (1971).
In evaluating whether or not the "incapacitated by alcohol" standard is impermissibly vague as applied to Donahue and/or Lawson, the court rejects out of hand the plaintiffs' thinly-veiled implication that any standard which utilizes words is inherently amphibolous and therefore unconstitutional. The Court, in effect, rendered judicial ears deaf to such a doleful lamentation when it pointed out: "Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110, 92 S. Ct. at 2300 (footnote omitted). The Grayned Court cautioned: "It will always be true that the fertile legal `imagination can conjure up hypothetical cases in which the meaning of *1475 [disputed] terms will be in nice question.'" Id. at 110 n. 15, 92 S. Ct. at 2300 n. 15 (quoting American Communications Association v. Douds, 339 U.S. 382, 412, 70 S. Ct. 674, 691, 94 L. Ed. 925 (1950)). See also Broadrick, 413 U.S. at 608, 93 S. Ct. at 2913 (quoting United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79, 93 S. Ct. 2880, 2897 (1973)) ("Words inevitably contain germs of uncertainty.... `[T]here are limitations in the English language ... and ... although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.'")
There is a special point to be made as well. The law at issue in this case does not purport to fix the days of the year when deer may be hunted or the speed at which a motor vehicle may allowably be driven. It deals, instead, with matters which are part science, part artmatters which are less then perfectly and precisely understood even by the most erudite professionals.
Where, as here, medical judgments are necessarily a part of the statutory scheme, courts have justifiably been inclined to be more generous in evaluating the consititutionality of the selected statutory language. In rejecting an assault on the term "defective delinquent," for example, the Fourth Circuit concluded:
Although we recognize the risk of vagueness inherent in the terminology employed, an attempt to make precise legal definitions of medical concepts embodies a risk of overdefinition.
Tippett v. Maryland, 436 F.2d 1153, 1157 n. 15 (4th Cir.1971), cert. dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S. Ct. 2091, 32 L.Ed.2d 791(1972); see also In re Alexander, 336 F. Supp. 1305, 1308 (D.D.C.1972) (upholding commitment of person "likely to injure himself" or others; quoting Tippett).
Though the nature and subject matter of the law may in this way serve as a check on the swing of the pendulum in the direction of constitutional infirmity, this does not mean that the opposite impetus can be given free sway. The Court has stated that individuals may not be confined "merely to ensure them a living standard superior to that they enjoy in the private community." O'Connor, 422 U.S. at 575, 95 S. Ct. at 2493. Put another way, "there is ... no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom." Id. Obviously, notwithstanding the play necessarily inherent in codifying essentially medical judgments, legislation in this area cannot sweep so broadly as to capture every person who, howsoever improvidently, habitually allows alcoholic beverages to pass his lips. Ours is a society which values freedom highly, including, within wide limits, the freedom of self-indulgence in bad habits. The focus must be on the potentiality for harm. Yet, even a relatively commonplace concept such as "dangerousness" can have a quicksilver quality.
There can be no unwavering bright-line rule in these purlieus. Lawmakers must be given a certain latitude in the thankless task of attempting to write difficult medical and social concepts into legislation of general applicability. And in this sense, the salutary purposes to be served by reining in the (potentially) arbitrary exercise of official authority must be balanced against the inherent limitations upon the communicative and expressive powers of man and language and against the somewhat compressed borders of scientific knowledge. As the Court has recognized, "[t]he words of the ... ordinance [can be] marked by `flexibility and reasonable breadth, rather than meticulous specificity,' [so long as] it is clear what the ordinance as a whole prohibits." Grayned, 408 U.S. at 110, 92 S. Ct. at 2300 (citations omitted).
One matter is not at all vague or indistinct: a court should "not pass on the constitutionality of [a statute] if a construction of the statute is fairly possible by which the question may be avoided." United States v. Clark, 445 U.S. 23, 27, 100 S. Ct. 895, 899, 63 L. Ed. 2d 171 (1980). See also *1476 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandeis, J., concurring); Aggarwal v. Ponce School of Medicine, 745 F.2d 723, 726 (1st Cir.1984); In re Evans, 452 F.2d 1239, 1246 (D.C.Cir.1971), cert. denied, 408 U.S. 930, 92 S. Ct. 2479, 33 L. Ed. 2d 342 (1972). Certain presumptions must guide a court in its evaluation of a constitutional foray against a statute:
The first of these presumptions is that legislation duly enacted by [the legislature] is constitutional. A corollary to this basic presumption is the principle that, when one interpretation of a statute would create a substantial doubt as to the statute's constitutional validity, the courts will avoid that interpretation absent a "clear statement" of a contrary legislative intent. When a statute is fairly subject to a variety of interpretations all but one of which would make it unconstitutional, then the courts must presume [the legislature] intended the interpretation which is constitutionally permissible. Thus if [the challenger's] interpretation of the [statute] would produce an unconstitutional result, there is at least a strong prima facie argument that the interpretation is erroneous.
United States v. Thompson, 452 F.2d 1333, 1337 (D.C.Cir.1971) (citations omitted), cert. denied, 405 U.S. 998, 92 S. Ct. 1251, 31 L. Ed. 2d 467 (1972).
The presumption of constitutionality requires that this court, at the threshold, assume that the challenged law comports with due process. It would be error to shun a constitutionally sufficient interpretation of the interdicted statutory phraseology if one is readily and logically to be found. Equally as important, this search cannot proceed in a sterile intellectual vacuum:
"In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Our objective ... is to ascertain the [legislative] intent and give effect to the legislative will.
Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975) (quoting Chemehuevi Tribe of Indians v. Federal Power Commission, 420 U.S. 395, 402-03, 95 S. Ct. 1066, 1071-72, 43 L. Ed. 2d 279 (1975)). See also Richards v. United States, 369 U.S. 1, 11, 82 S. Ct. 585, 592, 7 L. Ed. 2d 492 (1962); United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L. Ed. 1009 (1849)); United States v. New England Coal and Coke Co., 318 F.2d 138, 142-43 (1st Cir.1963).
Viewed alone, the disputed portion of the RIAITA certainly contains some ambiguity. An individual whose "judgment [is] so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment," R.I.Gen.Laws § 40.1-4-2(7), might conceivably be a person who is in need of treatment, but who is not currently a danger to himself or to others. And, the mere need for treatment will not suffice to uphold involuntary detention of an individual who is "capable of surviving safely in freedom," O'Connor, 422 U.S. at 575, 95 S. Ct. at 2484, even though that person may have a compulsion to consume alcohol, may be deteriorating from the effects of alcohol, and may be helped by treatment. See id. at 573-76, 2492-94; see also Lessard, 349 F.Supp. at 1094 ("Persons in need of hospitalization for physical ailments are allowed the choice of whether to undergo hospitalization and treatment or not. The same should be true of persons in need of treatment for mental illness.... [M]any people ... could benefit from some sort of treatment at different periods in their lives....[T]he rational choice in many instances would be to forego treatment...."); cf. Doremus, 407 F.Supp. at 514 ("To permit involuntary commitment upon a finding of `mental illness' and the need for treatment alone would be tantamount to condoning the State's commitment of persons deemed socially undesirable for the purpose of indoctrination or conforming the individual's beliefs to the beliefs of the State."). Yet, when read in conjuction with other portions of the emergency commitment provision against the policies of the RIAITA scheme as a backdrop, the "incapacitated by alcohol" standard *1477 necessarily refers to more than the mere need for treatment.
In order to discern the authentic will of the Rhode Island General Assembly in this regard, the definition of "incapacitated by alcohol" must be compared to the definition of "intoxicated person" that is employed in the RIAITA matrix. An "intoxicated person," R.I.Gen.Laws § 40.1-4-2(6), is "a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol." Under the emergency commitment provision, it is not enough that the individual be an "intoxicated person;" rather, a person committed under the disputed portion of § 40.1-4-11 must be both intoxicated and incapacitated by alcohol. This is powerful evidence that the General Assembly, in employing the "incapacited by alcohol" standard in § 40.1-4-11, intended something more than "intoxicat[ion]" alone, that is, that the person be more than merely "substantially impaired" and this confluence of terminology strongly suggests that a need for treatment, in and of itself, will not suffice. After all, someone who is beyond a state of substantial impairment is bound to be well past the threshold of treatment need.
There is a further point which merits the attention of a thoughtful court. The RIAITA, viewed in its entirety, makes manifest that the legislature also sought to protect an individual who declines treatment. Section 40.1-4-11(1) specifically declares that "[a] refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment." Thus, in promulgating the emergency commitment statute, the General Assembly did not seek involuntarily to confine individuals who, though they would benefit by treatment, were not in dire circumstances. Reading the various portions of the emergency provision in harmony with the totality of the statutory scheme, and mindful of the penchant of alcoholics to deny that they need treatment at all (and ofttimes, even to deny the existence of their addiction), the court concludes that the "incapacitated by alcohol" standard does not encompass an individual whose need for treatment is not of a considerable magnitude.
Once these limitations are engrafted onto § 40.1-4-11, the concept of dangerousness inches inexorably into view: an individual whose impairment has transcended "substantial" and whose need for treatment has become "considerable" is, by reasonable extrapolation, highly likely to be at significant personal risk and/or to pose a realistic threat to other persons. Seen in this light, the Rhode Island definition may be viewed not only as encompassing the notion of "dangerousness" but also as surpassing that plateau. The two-pronged standard of "transcending substantial impairment" cum "considerable need for treatment" surmounts the O'Connor floor; indeed, it may well provide clearer, better-defined guidance to those charged with statutory enforcement than the stock formulation of "dangerous to himself or to others." Certainly, the Rhode Island approach, held within the definitional boundaries suggested above, contains no more (and arguably, fewer) of the seeds of subjectivity than the classic incantation.
Such a reading of the RIAITA draws sustenance from existing caselaw relative to the involuntary commitment of the mentally ill. The Supreme Court has construed civil commitment standards liberally so as to embrace the dangerousness requirement. In Jackson v. Indiana, the Court held that a statute which defined a "mentally ill person" as one who "requires ... detention in the interest of the welfare of such person or others" appeared "to require an independent showing of dangerousness." 406 U.S. at 728, 92 S.Ct. at 1853 (construing Ind.Ann.Stat. § 22-1201(1)). In Humphrey v. Cady, the Court, in dicta, addressed a statute which equated "mental illness" with "mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community." 405 U.S. at 509 & n. 4, 92 S. Ct. at 1052 n. 4 (discussing Wis.Stat.Ann. § 51.75, Art. II(f)). The Court found implicit in this definition a requirement that a person's "potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty." Id. at 509, *1478 92 S.Ct. at 1052. Such precedents are helpful here.
Lower courts that have entertained vagueness challenges to temporary commitment statutes also provide some direction. In applying the O'Connor requirements to definitions of mental illness, it has been recognized that "[t]he threat of harm to oneself may be through neglect or inability to care for oneself." Doremus, 407 F.Supp. at 515. See also Doe, 486 F.Supp. at 991; Lynch, 386 F.Supp. at 391. That approach has the ring of plausibility. As one court has explained:
In the case of dangerousness to self, both the threat of physical injury and discernible physical neglect may warrant a finding of dangerousness. Although he does not threaten actual violence to himself, a person may be properly commitable under the dangerousness standard if it can be shown that he is mentally ill, that his mental illness manifests itself in neglect or refusal to care for himself, that such neglect or refusal poses a real and present threat of substantial harm to his well-being, and that he is incompetent to determine for himself whether treatment for his mental illness would be desirable.
Lynch, 386 F.Supp. at 391.
Viewing the concept of dangerousness in this fashion, the court in Doe, 486 F.Supp. at 991, rejected a vagueness challenge to a California statute which allowed the involuntary confinement of the "gravely disabled," and which defined that term as "[a] condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing or shelter." Cal.Welf. & Inst. Code § 5008(h)(1). The court found that the standard "implicitly requires a finding of harm to self: an inability to provide for one's basic personal needs." Doe, 486 F.Supp. at 991.
Other tribunals have taken a similarly expansive look at civil commitment standards. One court rejected a challenge to a statute which authorized officials to detain "any person whose condition or actions are such that it is necessary that he receive an immediate examination or immediate care and treatment at a psychiatric facility." Hawaii Rev.Stat. § 334-54. Examining the law in its entirety, the court concluded:
While certain language in the section, standing alone, might seem to encompass more situations than those in which a person is engaged in criminal behavior or poses an immediate danger to himself or to others, a reading of the section as a whole and in the context of the entire statute makes it clear that the section was intended to be so limited.
Suzuki, 411 F.Supp. at 1125.
Another court rejected a facial challenge to the Wisconsin civil commitment statute discussed by the Supreme Court in Humphrey. It concluded that the Court's
approval of a requirement that the potential for doing harm be "great enough to justify such a massive curtailment of liberty" implies a balancing test in which the state must bear the burden of proving that there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others.
Lessard, 349 F.Supp. at 1093 (quoting Humphrey, 405 U.S. at 509, 92 S. Ct. at 1052) (emphasis in original).
It is noteworthy, too, that in construing a state statute, a federal court must defer to the highest court of a state as the best arbiter of state law. See Commissioner v. Estate of Bosch, 387 U.S. 456, 462, 87 S. Ct. 1776, 1781, 18 L. Ed. 2d 886 (1967); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S. Ct. 1233, 1235, 93 L. Ed. 1520 (1949). (Such deference involves the meaning of the enactment; once the meaning is established, the question of whether or not the ordinance passes constitutional muster is one within the primacy of the federal courts.) In this instance, the state supreme court has yet to interpret the relevant provisions of the RIAITA. Nevertheless, the decisions of that tribunal offer some helpful guides to statutory construction generally.
Under Rhode Island law, it is well settled that the words contained in enactments of the General Assembly should not be interpreted *1479 in a vacuum. City of Warwick v. Almac's, Inc., 442 A.2d 1265, 1272 (R.I. 1982). Statutes should be read to convey "a definite and sensible meaning that does not contradict an evident legislative purpose." Rathbun v. Leesona Corp., 460 A.2d 931, 933 (R.I.1983). In divining the legislative will, "[n]o sentence, clause or word should be construed as unmeaning or surplusage, if a construction can be legitimately found which will give force to and preserve all the words of the statute." St. Clare Home v. Donnelly, 117 R.I. 464, 368 A.2d 1214, 1217-18 (1977). See also Blue Cross of Rhode Island, 589 F.Supp. at 1491; Montaquila v. St. Cyr, 433 A.2d 206, 214 (R.I.1981). Even if the literal meaning of the words suggests the contrary, Rhode Island courts have been admonished to refrain from thwarting the "discovered intendment of the legislature." Warren Education Association v. Lapan, 103 R.I. 163, 235 A.2d 866, 872 (1967). As this court, in an earlier endeavor to summarize the Rhode Island Supreme Court's triage of the canons of construction, has observed:
There is a fine line to be walked which separates unacceptable judicial rewriting of statutes from salutary efforts judicially to synthesize the true meaning and intent which was in the collective minds of a legislative majority when any particular law was enacted.
Blue Cross of Rhode Island, 589 F.Supp. at 1491.
These principles of statutory construction, firmly embedded in the mosaic of Rhode Island jurisprudence, likewise counsel in favor of reading the RIAITA as a whole, charting the "incapacitated by alcohol" standard not as an island but as a part of the overall topography of the Act, and attempting to translate the challenged phrase (where, as here, it is possible to do so without overreaching, distortion, or mental gymnastics) in a manner which harmonizes with the evident purpose and intendment of the Rhode Island General Assembly.
In this case, the legislative will is clear. The words of § 40.1-4-11, though cryptic, can plausibly be read to convey a sensible meaning, a meaning which dovetails with the overall objectives of the entire statute and which does not run afoul of the imperatives of the federal Constitution. Federal precedent encourages the adoption of such an interpretation, and the reported opinions of the state supreme court indicate, in a general sense, that the law can and should be translated in the suggested fashion.
The situation portrayed by the RIAITA is not one in which the state may detain an individual whose "affliction ... falls anywhere within a vast, uncontoured description of mental ills ... whether his particular ill presents a realistic threat of harm to himself or to others." Bell, 384 F.Supp. at 1096. The "incapacitated by alcohol" standard, taken in context, goes far beyond those impermissibly vague statutes which authorized the detention of the mentally ill simply because it appeared (to someone) "necessary and essential to do so," id., or where there was nothing more than a "need for observation and treatment." Kendall, 391 F.Supp. at 418. Such laws, and their congenators, e.g., Goldy v. Beal, 429 F. Supp. 640, 646-48 (M.D.Pa.1976) (three-judge court) (striking down statute which defined "mental disability" as "any mental illness ... which so lessens the capacity of a person to use his customary self-control, judgment and discretion ... as to make it necessary or advisable for him to be under care"); Stamus, 414 F.Supp. at 451-52 (striking down statute which authorized detention of individual who "is believed to be mentally ill and a fit subject for custody and treatment in the hospital); Doremus, 407 F.Supp. at 513-15 (striking down statute which authorized detention of individual who is "mentally ill" and "a fit subject for custody and treatment in a hospital"), have rightfully been seen as overly nebulous. They contained too "few visible limits ... to guide court or citizen." Bell, 384 F.Supp. at 1096 (footnote omitted). The case at bar concerns a materially different breed of cat.
Notwithstanding the fact that certain language in the challenged section, standing in a vacuum, might well seem to *1480 snare within its net persons who have not exhibited a potentiality for dangerousness, the court rejects the plaintiffs' effort to interpret the law in that stilted manner. To scan § 40.1-4-11 so mechanically would require honoring literalism at the expense of evident meaning and legislative purpose. The stakes are far too high to deal the cards in such a closefisted way. This court concludes that R.I.Gen.Laws § 40.1-4-11, read reasonably and in the context of the RIAITA as a whole, makes it sufficiently clear that the sweep of the statutory phrase "incapacitated by alcohol" was intended to be self-limiting to situations where a putative detainee has posed a relatively immediate threat to himself or to others, that is, that the statute implicitly requires, as a condition precedent to emergency commitment, that the subject's potential for harming himself or others be critical enough to justify the "massive curtailment of liberty," Humphrey, 405 U.S. at 509, which such confinement entails. Though expressed in terms of a condition "transcending substantial impairment" and accompanied by a "considerable need for treatment," see ante at 1476-1477, the criterion is one of dangerousness.[13] The statute must be read and implemented in such a vein, requiring inter alia an independent showing sufficient to trigger this condition. Accordingly, the statutory standard is a permissible one dangerousness and the plaintiffs' vagueness assault must be repulsed. The claim of constitutional repugnance is unfounded.
VI. CONCLUSION
As framed by the first count of the second amended complaint, this case does not center around concerns of "good" versus "bad," of morality versus immorality, or even of desirable conduct versus undesirable conduct. Alcoholism, though itself a damnable evil, is not a manifestation of evil. Rather, it is a dread disease which ranks among the deadliest scourges of our time. Society has labored long and hard yet withal, perhaps neither long enough nor hard enough to understand and come to grips with this affliction. In enacting and thereafter in periodically updating the RIAITA, the Rhode Island General Assembly has made a principled effort to fulfill the state's manifold responsibilities in this regard. The end product of that endeavor, the current-day version of the RIAITA, is perhaps not perfect, but it is adequate to survive the rigors of the constitutional challenge which Donahue and Lawson have launched.
The emergency commitment provisions of the statute are, in the nature of things, bound to be a sore spot. The concept of any noncriminal, nonconsensual deprivation of liberty without the benefit of prenotification and an opportunity meaningfully to be heard is anathematic to deeply-ingrained notions of fairness in this great and free land. Yet in this whisky-ravaged setting, ample cause exists to permit such detention under exigent circumstances, so long as closely-tailored restrictions are imposed. An alcoholic, already imprisoned within his own addiction, cannot be involuntarily confined by the state, even if the sovereign (wisely) regards such confinement to be in the alcoholic's best interest, without proper obeisance to applicable constitutional safeguards. The Rhode Island enactment contains enough prophylactic shielding to pass this test.
To the extent of the contentions which have been advanced in this case, R.I.Gen.Laws § 40.1-4-11 remains unsullied. Although the questions are close and the answers not entirely free from doubt,[14]*1481 the statute endures. The court declines the plaintiffs' invitation to balkanize the RIAITA; a more global examination is warranted. So viewed, § 40.1-4-11 sufficiently incorporates the idea of dangerousness into the statutory mosaic so as to allow the emergency commitment of one "incapacitated by alcohol." The law is, in this aspect, neither overbroad nor unlawfully vague. And, once detention has occurred, the period of time antecedent to the holding of a mandatory probable cause hearing short of any consideration of a possible extension of that span, see ante n.10 is not unreasonably overlong. The red flag of constitutional breach does not fly from these ramparts.
The court finds and declares that the statute, on its face, affords at least the minimum process which is constitutionally due. Count I of the second amended complaint is therefore unavailing and must be dismissed.
Settle order on notice.
NOTES
[1] On October 18, 1985, Donahue moved for leave to file a second amended complaint. No objection appearing, that motion was granted by rule of court on November 7, 1985. The sole purport of the amendment was to add Lawson as an additional party plaintiff. Though the defendants never formally answered the second amended complaint, the ensuing arguments, see post, were based on that pleading, and Lawson's counsel participated fully in the proceedings from November 7 forward. Thus, the court accepts the implied agreement of the parties and treats the defendants' answer to the amended complaint as their answer to the second amended complaint. Consequently, both Donahue and Lawson are properly before the court.
[2] In outlining the statutory bases for Lawson's various detentions, the court is guided by the stipulation among the parties. Except as to the May 1984 vignette, the stipulation does not indicate the specific statutes upon which the treatment facility relied anent Lawson's several nonvoluntary admissions. The court carefully reviewed the medical records for these commitments, and found them to be singularly unenlightening in this respect.
[3] While the court need not look to the circumstances of the plaintiffs' detentions at this juncture, the records submitted by the parties indicate that in all instances in which Donahue and Lawson were detained pursuant to § 40.1-4-11, they were released by the facility administrator within no less than two and no more than six days. Thus, the hope held out by § 40.1-4-11(5) does not appear to be an empty promise.
[4] A person deprived of freedom under the state statute also has recourse to the remedy of the writ of habeas corpus under R.I.Gen.Laws § 10-9-1 (1985). Some courts have found that the availability of such a writ can be a factor in determining the constitutionality of a commitment scheme. See Project Release, 722 F.2d at 975; Logan, 346 F.Supp. at 1269. But, it has been noted that the "protection [of habeas corpus proceedings] is illusory when a large segment of the protected class cannot realistically be expected to set the proceedings into motion in the first place." Doe, 657 F.2d at 1023. Notwithstanding the fact that the guaranty of legal advice built into § 40.1-4-11(6) increases the level of predictable expectations, this court tends to share the sentiments voiced in Doe. The habeas corpus factor has been discounted accordingly.
[5] A compromise of sorts, in the nature of a preliminary probable cause inquiry prior to the final commitment hearing, may loom as a feasible alternative. There is respectable authority for the view that "[d]ue process does not require that the preliminary hearing be as formal and comprehensive as subsequent proceedings for final adjudication." Bell, 384 F.Supp. at 1098. See also Lessard, 349 F. Supp. at 1092 ("The exigency of the situation, encompassing an emergency situation and lack of time to marshal all facts necessary to an ultimate determination ... precludes a requirement that a hearing at this time encompass all requirements which may be deemed essential at a subsequent hearing.") Courts therefore have permitted the introduction of reports, affidavits, and other materials that would not be admissible or sufficient in a full commitment hearing, see, e.g., Luna, 554 F.Supp. at 76; Kendall v. True, 391 F. Supp. 413, 419, and have not required that the determination be made by a judicial officer, see, e.g., Luna, 554 F.Supp. at 76; Doe, 486 F.Supp. at 994. But, the presence of an independent decisionmaker remains indispensable, see, e.g., Luna, 554 F.Supp. at 76; Doe, 486 F.Supp. at 994, as does the right to be represented by counsel, see, e.g., Luna, 554 F.Supp. at 76; Doremus, 407 F.Supp. at 515-16; Bell, 384 F.Supp. at 1098; Lessard, 349 F.Supp. at 1092, notice of the grounds for confinement, see e.g., Luna, 554 F.Supp. at 76; Doremus, 407 F.Supp. at 515; Bell, 384 F.Supp. at 1098, and an opportunity to rebut the state's allegations, see, e.g., Luna, 554 F.Supp. at 76; Bell, 384 F.Supp. at 1098. Even an abbreviated, less formulary hearing must have these (and other) minimum prerequisites, or it would be no hearing at all. Thus, the state would be required to expend significant resources if any antecedent hearing to determine probable cause for detention was mandated by this court. And, one wonders if the game would be worth the candle. There is no persuasive reason to believe that such a snapshot exercise would provide a measure of relief commensurate with its cost.
[6] There is no recorded legislative history in reference to this change. (Unfortunately, such a bare cupboard is par for the Rhode Island course.)
[7] The notes accompanying the emergency commitment provision of the Uniform Act indicate that Rhode Island is the only state which permits detention of an individual for more than five days under the U.L.A. prototype. See Uniform Act § 13(e), 9 U.L.A. at 86-88 (1971); id., 9 U.L.A. 21 (Supp.1985). This court's review of the statutory schemes of the ten other states which have enacted the Uniform Act confirms that this is so. See id. at Supp. 19 for a compendium of states that have enacted the Uniform Act and the respective statutory citations. There are, of course, state laws not patterned on the Uniform Act which go this far and farther.
[8] To be sure, the parens patriae underpinning for involuntary commitment has come under severe (and somewhat justifiable) attack in recent years. See, e.g., Doe, 486 F.Supp. at 994; Johnson v. Solomon, 484 F. Supp. 278, 286-87 (D.Md.1979); Bartley, 402 F.Supp. at 1046-47; Kendall, 391 F.Supp. at 417; Dixon v. Attorney General of Commonwealth of Pennsylvania, 325 F. Supp. 966, 972 (M.D.Pa.1971) (three-judge court). To mix family metaphors, there are limits within which the government can play "Big Brother." Though much of that criticism is meritorious, the parens patriae rationale is only peripherally involved in a reasoned evaluation of the RIAITA; more to the point, the Rhode Island law ably balances the governmental and individual interests at stake.
[9] Both the circuit court and district court opinions in Doe failed to take note of the Supreme Court's affirmance in French. See Doe, 657 F.2d at 1021-24; Doe, 486 F.Supp. at 992-94. The Luna court likewise ignored that development. See Luna, 554 F.Supp. at 73.
[10] As the plaintiffs point out, the ten day period fixed by the statute can effectively double in certain circumstances. That is, under § 40.1-4-11(5), quoted ante at 7, a further delay of up to ten additional days may occur if the petition for a hearing anent involuntary commitment was filed during the initial ten days, yet was not heard and determined within that span. This suit does not squarely confront the question of the constitutionality of such an extension, inasmuch as neither plaintiff nor any other person, insofar as the instant record reveals has ever been subjected to or threatened with a pre-hearing detention of such an incremental duration. See ante Part II (outlining circumstances of the plaintiffs' confinements). First Amendment cases aside, e.g., Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S. Ct. 736, 742, 84 L. Ed. 1093 (1940), courts must be careful to refrain from rendering advisory opinions in situations where particular questions are not legitimately raised by a zoetic controversy between litigants actually affected or imminently jeopardized by the operation of the interdicted law. "[F]ederal judicial power is to be exercised to strike down legislation ... only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action." Poe v. Ullman, 367 U.S. 497, 503-04, 81 S. Ct. 1752, 1755-56, 6 L. Ed. 2d 989 (1961). See also Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 1215, 39 L. Ed. 2d 505 (1974); Shell Oil Co. v. Noel, 608 F.2d 208, 213 (1st Cir.1979); Blue Cross of Rhode Island v. Cannon, 589 F. Supp. 1483, 1489-90 (D.R.I.1984). In that neither Donahue nor Lawson has been injured, or is currently imperilled, by any doubling of the detention period under § 40.1-4-11 (5), adjudication of the validity vel non of the extension mechanism must await the dawning of another day.
[11] T.S. Eliot, East Coker, II (1940).
[12] Although the vagueness doctrine is ordinarily applied to criminal statutes, it has also been used in the context of civil statutes which deprive an individual of liberty or property without due process. See Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 1566, 18 L. Ed. 2d 661 (1967); Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S. Ct. 518, 520, 15 L. Ed. 2d 447 (1966); A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239, 45 S. Ct. 295, 297, 69 L. Ed. 589 (1925); Healey v. Bendick, 628 F. Supp. 681, 691, 692 (D.R.I.1986). "[W]hether labeled `penal' or not, [a statute] must meet the challenge that it is unconstitutionally vague." Giaccio, 382 U.S. at 402, 86 S. Ct. at 520.
[13] Dangerousness to self, as that concept exists within § 40.1-4-11, embodies not only the potential for violence turned inward, but the threat of self-neglect at a level which, fairly viewed, would pose a clear and present risk of substantial harm to the actor's wellbeing. See Lynch, 386 F.Supp. at 391.
[14] The issues which these plaintiffs have raised concerning the constitutionality of the statute implicate "controlling question[s] of law as to which there is substantial ground for difference of opinion." 28 U.S.C. § 1292(b). In this court's estimation, they are fairly debatable. Here, as in Chang v. University of Rhode Island, 606 F. Supp. 1161, 1279 (D.R.I.1985), the case presents "an interleaved series of difficult and pivotal questions of law," the answers to which are less than wholly certain. An immediate appeal might well, in the long run, serve materially to advance the ultimate resolution of the litigation. Moreover, when one considers the critical importance of the statute, interlocutory review would surely redound to the benefit of not only the parties but also the citizenry. Thus, although the court is mindful that intermediate appeals are disfavored and should be employed only in extraordinary circumstances, McGillicuddy v. Clements, 746 F.2d 76, 76 n.1 (1st Cir.1984); Chang, 606 F.Supp. at 1279, this case fits neatly within that narrow integument. Therefore, should the plaintiffs wish to essay an interlocutory appeal in pursuance of 28 U.S.C. § 1292(b), the court stands disposed, upon timely presentment of a request to that effect, to issue a § 1292(b) certificate.
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https://www.courtlistener.com/api/rest/v3/opinions/2260390/
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549 A.2d 355 (1988)
STATE of Maine
v.
Stephen CANDAGE.
Supreme Judicial Court of Maine.
Argued May 11, 1988.
Decided August 31, 1988.
*356 James E. Tierney, Atty. Gen., Charles K. Leadbetter, Garry L. Greene (orally), Asst. Attys. Gen., Augusta, for plaintiff.
William N. Ferm (orally), Ferm & McSweeney, Ellsworth, David W. Kee, William J. Tymoczko, Fellows, Kee & Tymoczko, Bucksport, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, SCOLNIK[*] and CLIFFORD, JJ.
CLIFFORD, Justice.
The defendant, Stephen Candage, appeals from his conviction in Superior Court, Hancock County, of murder, 17-A M.R.S.A. § 201(1)(A) (1983), following a jury trial. Finding no reversible error, we affirm the judgment.
Viewed in the light most favorable to the prosecution, the jury rationally could have found the following facts. In October of 1986, Stephen Candage was living with his father, Roger,[1] in a small house off Gilbert Farm Road in Bar Harbor. Roger allowed a friend, James Whitney, to park his trailer in front of his house. Whitney lived in this trailer and frequently socialized with Roger and Stephen.
A few days after receiving a social security payment of several hundred dollars in late October 1986, Whitney obtained a $100 bill, exchanging five $20 bills with a friend who was having difficulty getting the $100 bill accepted in a local grocery market. On or about this same day Whitney mentioned to Roger and Stephen that Whitney believed he had lost his wallet.
On November 3, 1986, Angela Lynk of Seal Harbor, who was Stephen's former girlfriend, talked with Stephen on the telephone and was told that something would be happening in the next few days, and that the police would be in contact with her. He further said that the police would know that Stephen had done "it," but they would not be able to prove anything. He refused to elaborate any further, since, he said, there was a danger that Lynk would be considered to be an accomplice if he told her too much.
On Tuesday, November 4, 1986, Roger and Whitney spent much of the day drinking beer and driving around in Whitney's pickup truck. Later in the day, they returned to Roger's house. Stephen, who was at the house, wanted to buy beer and asked Whitney to drive him to a nearby store. Whitney agreed. When they returned, the three men sat in Whitney's *357 trailer and drank beer. In the early evening, Roger left Stephen and Whitney and went into his house to have supper and watch television. As Roger watched television during the evening, he noticed that Stephen entered and left the house several times. No other person was present. Roger went to bed sometime after 10:00 p.m.
Roger woke up at about 6:00 a.m. on November 5. Stephen was not in the house at this time. Roger noticed that his rifle and rifle clip that he kept in his overalls were both missing. Roger walked outside and saw that Whitney's pickup truck was not in its usual location in front of his house. Roger walked into Whitney's trailer and discovered Whitney's dead body. Whitney had been stabbed several times. Roger returned to his house to call an ambulance, but he found his phone had been disconnected, necessitating his going to a neighbor for assistance. An ambulance and several police officers subsequently arrived at Whitney's trailer. Whitney's wallet was missing, and it was not found during a search of the area.
After an initial investigation, a search was begun to locate Stephen and Whitney's missing pickup truck. Whitney's truck was found the same day along the roadside at the intersection of Route 1 and Washington Junction Road in Hancock, facing in the direction of Ellsworth. Roger's rifle and clip were found in the cab of the truck. The truck was sealed, impounded and brought to the Ellsworth Fire Station for processing.
In the meantime, Stephen had appeared at the Ellsworth Holiday Inn, where he registered as a guest under his own name at 5:21 a.m. on November 5. Later in the morning, at around 11:30 a.m., Stephen registered for the following day, and paid for his room with a $100 bill. Shortly thereafter, the desk clerk heard a radio bulletin describing Stephen as a suspect in Whitney's murder. The Holiday Inn manager alerted the police to Stephen's presence.
The police obtained from a District Court judge a search warrant for Stephen's motel room and his clothing, based on much of the information described above, set out in an affidavit of Matthew Stewart, detective with the Maine State Police. Four State Police officers executed the warrant by forcibly entering Stephen's room during the afternoon of November 5. Stephen was asked to accompany the officers to the Ellsworth Police Station for an interrogation. Stephen did go to the station and was interrogated. Throughout the interrogation, Stephen told inconsistent stories but insisted that he did not kill Whitney. Stephen was arrested for Whitney's murder approximately 10 minutes after the conclusion of the interrogation.
Subsequent to his indictment Stephen filed a variety of motions, including a motion to suppress evidence seized during the raid on Stephen's motel room and statements he made to the police during the interrogation at the Ellsworth Police Station. After a hearing in Superior Court the motion to suppress was denied. Stephen's trial was held in October 1987. Motions for a judgment of acquittal were made and denied at the conclusion of the State's case and after Stephen presented his evidence. After the jury returned its verdict of guilty, Stephen filed a motion for judgment of acquittal or a new trial. This motion was likewise denied. This appeal was thereafter filed in a timely fashion.
I.
Stephen's first argument in his appeal is that the evidence gathered from the search of his motel room and the seizure of his clothes should have been excluded from evidence because, contrary to the finding of the motion justice, the affidavit in support of the warrant failed to establish a substantial basis for the finding of probable cause for that search.
The standard of review for a magistrate's finding of probable cause with respect to a search warrant is a deferential one, the inquiry being limited to whether there was a substantial basis for the finding of probable cause, with the affidavit supporting the search warrant being read "`with all reasonable inferences that may be drawn to support the magistrate's determination.'" *358 State v. Gallant, 531 A.2d 1282, 1284 (Me.1987) (quoting State v. Knowlton, 489 A.2d 529, 532 (Me.1985)).
The affidavit in this case, relating most of the essential facts set forth previously,[2] provides a substantial basis to support the District Court's finding of probable cause for the search.
II.
Stephen's next argument is that the hearing justice committed reversible error at the suppression hearing by refusing to allow testimony concerning an alleged misrepresentation in Detective Stewart's affidavit. During the suppression hearing Stephen's counsel had read into the record the following testimony of Detective Stewart given at the previously held hearing on bail:
Q. If you had had enough evidence at the time you went to room 206 [Stephen's room at the Holiday Inn] ... that probably there was probable cause to arrest Mr. Candage for murder and he had tried to leave then, then you would have placed him under arrest, wouldn't you? A. [Stewart] Had I reached the conclusion I had probable cause to believe he committed the crime of murder, I certainly would have.
Stephen contends that Stewart's testimony at the bail hearing contradicted his statement in the affidavit that probable cause existed to search Stephen's Holiday Inn room. Stewart made the following assertion at the conclusion of his supporting affidavit:
WHEREFORE, I have probable cause to believe, and do believe, that there may be evidence found on or in the clothing of Stephen Candage, or in his personal belongings, or in his room at the Holiday Inn, consisting of blood, bloodstains, a knife or knives, and money, which may be evidence of the crime of homicide.
Stephen argues that if Stewart testified at the bail hearing that he (Stewart) felt there was not probable cause to arrest Stephen at the Holiday Inn, this indicates that Stewart was less than candid in asserting there was probable cause to search the motel room in the affidavit. At the suppression hearing, Stephen's counsel wished to examine Stewart about the alleged inconsistency between his affidavit statement and his later testimony at the bail hearing. Specifically, Stephen's counsel sought to elicit confirmation from Stewart that he did not believe there was probable cause to arrest Stephen. This request was denied by the hearing justice, who reasoned that, even assuming Stewart would expressly testify at the suppression hearing that he felt there was no probable cause to arrest Stephen at the Holiday Inn, there was no need to have had probable cause to arrest Stephen in order for there to have been probable cause to support the search warrant.
In State v. White, 391 A.2d 291 (Me. 1978), we addressed the issue of when a criminal defendant is entitled to an evidentiary hearing to explore the veracity of information in a supporting affidavit for a search warrant. In White, we held that:
`[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that [an evidentiary] hearing [on this issue] be held at the Defendant's request.'
391 A.2d at 293 (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676-77, 57 L. Ed. 2d 667 (1978)).
Stephen basically contends that (1) he made the substantial preliminary showing of a false statement required by White and (2) the concluding paragraph of the affidavit, wherein Stewart asserts his belief that probable cause exists to conduct a search, *359 was a necessary prerequisite for a finding of probable cause.
Neither of these arguments has merit. With respect to Stephen's burden to make a substantial preliminary showing of a false statement, we stated in White that such a showing should consist of "`allegations of deliberate falsehood or of reckless disregard for the truth, and these allegations must be accompanied by an offer of proof.'" White, 391 A.2d at 293 (quoting Franks, 438 U.S. at 171, 98 S. Ct. at 2684). All Stephen has offered in this case is an ambiguous excerpt from the bail hearing transcript and Stephen's conclusory assertion that Stewart did not believe he had probable cause to arrest Stephen at the Holiday Inn. Even if Stephen's allegation that Stewart did not believe probable cause to arrest existed at the Holiday Inn is accepted as true as to this issue, this does not undermine the validity of the affidavit, that purported to establish probable cause for a search, not an arrest.[3]
Moreover, Stewart's subjective conclusion as to probable cause was not necessary to the issuance of the warrant. A finding of probable cause to support the issuance of a warrant for a search is a legal conclusion made independently by a judge or complaint justice based on his or her analysis of the facts and law in a particular case. Thus, Stewart's subjective belief was irrelevant for purposes of the District Court judge's legal determination of probable cause. See Florida v. Royer, 460 U.S. 491, 507, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d 229 (1983); State v. Heald, 314 A.2d 820, 828 (Me.1973); accord State v. Parkinson, 389 A.2d 1, 8 (Me.1978). The motion justice correctly refused to allow Stephen to pursue that avenue of inquiry.
III.
Stephen next argues that his statements to the police during the interrogation at the Ellsworth Police Station should have been suppressed because they were not made voluntarily. The motion justice concluded that Miranda warnings were properly given and that Stephen's statements were voluntary beyond a reasonable doubt.
A statement, to be voluntary, must be the result of the defendant's exercise of his own free will and rational mind. State v. Franklin, 463 A.2d 749, 752 (Me.1983). At the suppression hearing, the State had the burden of proving the voluntariness of Stephen's statements beyond a reasonable doubt. State v. Collins, 297 A.2d 620, 627-30 (Me.1972). Our review of the motion justice's conclusion is a limited one: "A trial court's determination that the State has met its burden will not be disturbed on appeal if there is evidence in the record that rationally supports it." State v. Larrivee, 479 A.2d 347, 349 (Me.1984).
Stewart and Detective David Giroux, who both conducted the interrogation, testified at the suppression hearing. Stephen also testified. Stewart and Giroux testified that when the search of Stephen's motel room was conducted, Stephen was patted down for weapons and asked if he wished to accompany the officers to the police station for questioning. Stephen agreed and accompanied the officers to the station. Upon arriving at the station, Stephen was led into a police lieutenant's office, where the interrogation was conducted. Miranda warnings were read to Stephen at the beginning of the interrogation, and the record reflects that he understood those warnings and agreed to talk to his interrogators. Stephen was not physically restrained during the trip to the station or during the subsequent interrogation.
The transcript of the interrogation indicates that Stephen, in addition to denying any involvement in the murder, gave inconsistent explanations for his activities during the previous 24 hours. At no time during the interrogation did Stephen request that the proceedings be stopped. Although the transcript does reveal that Stewart conducted the interrogatories in a confrontational way, we cannot say that *360 the motion justice erred in finding Stephen's statement to be voluntary.
IV.
Stephen further argues that he was arrested without probable cause at the Holiday Inn and consequently the fruits of the allegedly illegal arrest should have been suppressed, including his statement given during the interrogation.
In his written decision denying the motion to suppress, the suppression justice found that Stephen was placed in a "custodial situation" at the motel, but that there was probable cause for that "detention" and "no illegality in the seizure."
The State contends that the motion justice's references to "custodial situation," "detention" and "seizure" do not necessarily indicate a finding that Stephen was, in effect, placed under arrest during the search of the motel room. Rather, the State argues, Stephen was brought to the police station to carry out the purposes of the search warrant, namely the search of his person and the seizure of his personal clothing and belongings, and if there was a seizure, it was within the scope of the search warrant. See People v. Sunday, 109 Ill.App.3d 960, 65 Ill. Dec. 461, 466, 441 N.E.2d 374, 379 (1982). However, custodial and custody are terms usually associated with arrest for purposes of triggering Miranda warning requirements. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); United States v. Streifel, 781 F.2d 953 (1st Cir. 1986); State v. Bridges, 530 A.2d 718 (Me. 1987). In addition, Stephen testified that he was detained to a degree associated with formal arrest. See Streifel, 781 F.2d at 961; Bridges, 530 A.2d at 720. We conclude that the motion justice found Stephen to have been arrested at the motel, and that the arresting officers had the necessary probable cause to make the arrest.
Stephen contends that Detective Stewart's lack of subjective belief that sufficient probable cause existed to arrest Stephen demonstrates that probable cause to arrest did not exist. This argument is without merit. Probable cause to arrest exists whenever facts and circumstances within the knowledge of the police and of which there was reasonably trustworthy information would warrant a prudent and cautious person to believe that the arrestee had committed the crime. State v. Anderson, 447 A.2d 827, 829 (Me.1982). The information determining the existence of probable cause is not limited to what Detective Stewart knew of his own personal knowledge, but includes all the information known to the police. In addition to information set out in the affidavit, the officers knew that Stephen had overheard an earlier discussion between Roger and Whitney concerning the amount of money ($200-$250) in the wallet Whitney believed he had lost. The totality of this information was sufficient for the officers to have had probable cause to arrest Stephen. As discussed in Part II supra, a determination of probable cause in this kind of case is made objectively, without regard to one officer's subjective belief. Therefore, any suggestion that at the time of the bail hearing Stewart may not have believed there was probable cause to arrest Stephen at the Holiday Inn does not invalidate the otherwise valid detention of Stephen.[4]
V.
Stephen's next argument is that the trial testimony of prosecution witnesses Nancy Oliver and Detective Stewart concerning a prior, out-of-court photographic identification of Stephen by Oliver was inadmissible hearsay, the admission of which constituted reversible error.
Oliver was working as a cashier at the Mobil Mart on High Street in Ellsworth. Between 4:00 and 5:00 a.m. on November 5, 1986, she recalled a man with uncombed hair and a beard coming into the store and buying a bag of chips and cigarettes.
*361 Oliver recognized Stephen's picture in the Bangor Daily News the day after the murder and contacted Stewart. Stewart then showed Oliver a photographic array of six individuals including Stephen. Oliver identified Stephen's picture as being similar in appearance to the man who had come into the store during the early morning hours of November 5.
At trial, Oliver testified about those early morning events. She could not make an in-court identification of Stephen due to his changed appearance; he had shaved off the beard he had in November, 1986, and cut his hair. Nothing of what Oliver said was excludable testimony since she was describing a past incident.
Stewart testified about Oliver's identification of the photograph and identified the photograph as being that of Stephen.[5] Stephen objected to Stewart's testimony because it was a photograph and not a person that was being identified. The trial justice overruled Stephen's objection and determined Stewart's testimony to be admissible non-hearsay under M.R.Evid. 801(d)(1)(B). M.R.Evid. 801(d)(1)(B) reads, in pertinent part: "A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him." Although we have not previously addressed the question, federal courts have interpreted Fed.R.Evid. 801(d)(1)(C), identical to M.R.Evid. 801(d)(1)(B), to cover photographic as well as corporeal identifications. See United States v. King, 590 F.2d 253, 257 (8th Cir.1978), cert. denied, 440 U.S. 973, 99 S. Ct. 1538, 59 L. Ed. 2d 790 (1979); United States v. Lewis, 565 F.2d 1248, 1250-53 (2d Cir.1977); United States v. Hudson, 564 F.2d 1377, 1379 (9th Cir.1977). We see no reason why M.R.Evid. 801(d)(1)(B) should be interpreted differently to exclude photographic identifications.
VI.
Stephen's final argument is that there was insufficient evidence to convict him. In addition to the evidence already described, including Stephen's inconsistent and incredible statements concerning his actions,[6] there was evidence that Stephen knew where Roger's rifle and ammunition clip were stored in Roger's home, and testimony that Stephen admitted he killed Whitney to a fellow prisoner in the Hancock County Jail. Moreover, Roger testified that his dog, Toby, would bark whenever any strangers came in the house. Roger did not hear Toby barking during the night of the murder, indicating that whoever entered the house to take Roger's rifle and ammunition clip that evening was not a stranger. Although the blood type could not be ascertained, blood was found on Stephen's pants. The circumstantial evidence against Stephen, viewed in the light most favorable to the State, was sufficient for a jury to have rationally found him guilty beyond a reasonable doubt. State v. Barry, 495 A.2d 825, 826 (Me.1985).
The entry is:
JUDGMENT AFFIRMED.
All concurring.
NOTES
[*] SCOLNIK, J., sat at oral argument and participated in the initial conference, but retired before this opinion was adopted.
[1] The Candages are referred to as "Roger" and "Stephen" throughout the remainder of this opinion so that they can be readily distinguished from each other.
[2] The affidavit did not set forth Stephen's use of the $100 bill to pay for his motel room, Stephen's conversation with Angela Lynk, the disconnection of the telephone line and Whitney's statement about losing his wallet.
[3] As discussed in Part IV infra, we conclude that there was probable cause to arrest Stephen at the Holiday Inn.
[4] Since we find that the police had probable cause to arrest Stephen at the time of the motel room search, we do not address Stephen's contention that M.R.Crim.P. 41(b)(4) allows seizure of a person only when there is probable cause to arrest.
[5] Stephen also contends that his picture in the photographic array used by Stewart was improperly admitted in evidence, due to the "inflammatory" nature of the picture. Stephen, who wore a beard at the time his picture was taken, is pictured in the array with five other bearded men. Our examination of the array leads us to conclude that it was not inflammatory for the jury to have seen Stephen as he appeared in the array.
[6] For example, Stephen said he discovered Whitney's dead body but did not report it, that he took Whitney's wallet, but later denied taking the wallet, saying he actually took a cigar or cigarette box.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260400/
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178 Cal. App. 4th 999 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
JAIME PEREZ ALVAREZ, Defendant and Appellant.
No. G040739.
Court of Appeals of California, Fourth District, Division Three.
October 28, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*1002 Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant Jaime Perez Alvarez here invokes People v. Schulz (1992) 2 Cal. App. 4th 999 [3 Cal. Rptr. 2d 799] to support his argument the crimes he committed were not accomplished by force. We reject the argument and add our voices to what we perceive to be a chorus of disapproval of the Schulz holding.
Appellant was convicted of six counts of forcible lewd conduct on a child under the age of 14 and two counts of aggravated sexual assault arising from such conduct. Upon finding he had suffered two prior strike convictions, the trial court sentenced him to an indeterminate life term, plus 10 years. Appellant contends there is insufficient evidence that, in sexually abusing the victim, he used force above and beyond that attendant to the abuse itself. He also contends the trial court erred in applying Penal Code section 654[1] to his sentence, and there is insufficient evidence that one of his prior convictions qualifies as a strike. We reject appellant's challenges to the sufficiency of the evidence, but modify his sentence to comport with section 654. In all other respects, we affirm the judgment.
FACTS
In December 2004, appellant moved in with his girlfriend and her nine-year-old daughter, Martha. The following month, Martha alleged appellant had molested her on multiple occasions after he moved in. Although Martha later recanted her allegations, she related the story that follows to investigators.
One day in December 2004, appellant approached her while they were alone in the house. He picked her up, carried her to the living room sofa and placed her on his lap. He then kissed her and tried to put his tongue in her mouth, but she resisted and attempted to push him away. Undeterred, he *1003 unzipped her pants and slid his hand underneath her underwear. Then, holding her "hard" and "tight," he inserted his finger into her vagina. The penetration was painful for Martha. She asked appellant to stop, but he refused, and she was unable to get away. Appellant stripped to his underwear and placed Martha's hands on his chest and erect penis. He made her grab his penis over his underwear and "pull on it." Martha generally did as told. Whenever she let go, he grabbed her hand and held it around his penis.
The second episode of molestation occurred on January 19, 2005. Once again, Martha and appellant were alone in the house when he pulled her onto his lap and began kissing her. She tried to fight him off, but he removed her pants and inserted his finger inside her vagina. Bleeding slightly, she begged him to relent. However, he took her hands and placed them on his penis over his clothes. Then he forced her to "pull on it." Although she tried to move her hands away from appellant's penis, he held them there and directed their movement.
Based on the December 2004 incident, appellant was charged with three counts of forcible lewd conduct on a child under the age of 14. (§ 288, subd. (b)(1).) Count 1 was premised on his kissing Martha, count 2 on the digital penetration, and count 3 on the forced fondling. The prosecution also alleged one countcount 7of aggravated sexual assault on a child under 14. (§ 269, subd. (a)(5).) The underlying act for this allegation was the same act of digital penetration alleged in count 2.
Appellant faced similar charges in connection with the second episode that occurred in January 2005. Counts 4 through 6 alleged forcible lewd conduct based on the kissing, digital penetration and forced fondling, and count 8 alleged aggravated sexual assault based on the digital penetration making up count 5. It was further alleged that appellant had served a prior prison term and suffered two prior serious felony convictions for purposes of the "Three Strikes" law and the five-year enhancement set forth in section 667, subdivision (a). The jury convicted on all counts, and following a court trial on the priors, the judge found all enhancement allegations true.
The court imposed consecutive terms of 25 years to life on counts 1 through 4 and consecutive terms of 15 years to life on counts 7 and 8. It then added 10 years for the two prior serious felony convictions, under section 667, subdivision (a). Pursuant to section 654, the court stayed counts 5 and 6. It also stayed punishment for the prior prison term, making appellant's total prison sentence 130 years to life, plus 10 years.
*1004 I
Appellant claims there is insufficient evidence to support his convictions because the prosecution failed to prove he used force above and beyond that which was necessary to perpetrate the alleged offenses. We disagree.
In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record in the light most favorable to the judgment "`to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Davis (2009) 46 Cal. 4th 539, 606 [94 Cal. Rptr. 3d 322, 208 P.3d 78].) We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal. 4th 1199, 1206 [26 Cal. Rptr. 2d 23, 864 P.2d 103].)
(1) By their terms, the offenses for which appellant was convicted required proof that, in committing the proscribed acts, he used force, violence, duress, menace, or fear of immediate and unlawful bodily injury against the victim. (§§ 288, subd. (b)(1) [forcible lewd conduct], 269, subd. (a)(5) [defining aggravated sexual assault to include forcible sexual penetration].) Force, in this context, means physical force that is "`substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'" (People v. Cochran (2002) 103 Cal. App. 4th 8, 13 [126 Cal. Rptr. 2d 416].)
Relying on People v. Schulz, supra, 2 Cal. App. 4th 999, appellant contends that although he used some force against Martha in molesting her, it did not rise to this level. The most direct response to this argument is that Schulz is wrong.
In Schulz, the court ruled, "Since ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive `force.'" (People v. Schulz, supra, 2 Cal.App.4th at p. 1004.) However, the court acknowledged this ruling was contrary to established precedent (ibid.), and since Schulz was decided, it has been criticized for attempting "to merge the lewd acts and the force by which they were accomplished as a matter of law" (People v. Babcock (1993) 14 Cal. App. 4th 383, 388 [17 Cal. Rptr. 2d 688]).
(2) More particularly, it has been noted the Schulz rule fails to recognize a "defendant may fondle a child's genitals without having to grab the child by the arm and hold the crying victim in order to accomplish the act. Likewise, an assailant may achieve oral copulation without having to grab the *1005 victim's head to prevent the victim from resisting." (People v. Neel (1993) 19 Cal. App. 4th 1784, 1790 [24 Cal. Rptr. 2d 293].) Lewd conduct of this sort is punishable in and of itself. (§ 288, subd. (a).) Therefore, it stands to reason that the force requirement will be deemed satisfied when the defendant uses any force that is "different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victim's consent." (People v. Neel, supra, 19 Cal.App.4th at p. 1790.)
According to the majority of courts, this includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves. (See, e.g., People v. Bolander (1994) 23 Cal. App. 4th 155, 160-161 [28 Cal. Rptr. 2d 365] ["defendant's acts of overcoming the victim's resistance to having his pants pulled down, bending the victim over, and pulling the victim's waist towards him" constituted forcible lewd conduct]; People v. Neel, supra, 19 Cal.App.4th at p. 1790 ["defendant's acts of forcing the victim's head down on his penis when she tried to pull away and grabbing her wrist, placing her hand on his penis, and then `making it go up and down'" constituted forcible lewd conduct]; People v. Babcock, supra, 14 Cal.App.4th at p. 388 [force element met where the defendant grabbed the victims' hands and made them touch his genital area].)
(3) We agree with these decisions and find sufficient evidence of force in this case. During the December 2004 incident, appellant carried Martha over to the couch and resisted her attempts to push him away while he was kissing her. Then, holding her "tight" and "hard," he digitally penetrated her against her will. After that, he grabbed her hand and made her hold his penis. Whenever she let go, he took her hand and brought it back to his genital area.
Likewise, during the January 2005 episode, appellant forcibly pulled Martha onto his lap and prevented her from leaving while he kissed her and inserted his finger in her vagina. He also took her hands and made her pull on his penis. She tried to move her hands away, but he held them there against her will. On this record, it is clear appellant applied physical force that was substantially different from that necessary to accomplish the lewd acts themselves. All that was necessary to commit this act was a lewd touching. The application of force here was substantially different, regardless of whether it was substantially greater. Accordingly, there is sufficient evidence to uphold his convictions for forcible lewd conduct and aggravated sexual assault.
II
Relying on section 654, appellant contends the court should have stayed punishment for at least one of the three lewd acts he committed against Martha in December 2004. Again, we disagree.
*1006 (4) Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The section "applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction." (People v. Saffle (1992) 4 Cal. App. 4th 434, 438 [5 Cal. Rptr. 2d 648].) Generally, whether a course of conduct is a divisible transaction depends on the intent and objective of the actor: "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal. 2d 11, 19 [9 Cal. Rptr. 607, 357 P.2d 839].)
However, the rule is different in sex crime cases. Even where the defendant has but one objectivesexual gratificationsection 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished. (People v. Perez (1979) 23 Cal. 3d 545, 553 [153 Cal. Rptr. 40, 591 P.2d 63]; e.g., People v. Siko (1988) 45 Cal. 3d 820, 826 [248 Cal. Rptr. 110, 755 P.2d 294] [separate punishment for lewd conduct impermissible where it was the very basis for his rape and sodomy convictions]; People v. Greer (1947) 30 Cal. 2d 589, 604 [184 P.2d 512] [removal of victim's underclothing was merely incidental to subsequent rape and did not warrant separate punishment]; People v. Madera (1991) 231 Cal. App. 3d 845, 855 [282 Cal. Rptr. 674] ["section 654 would bar separate punishment for applying lubricant to the area to be copulated"].)
But, section 654 does not apply to sexual misconduct that is "preparatory" in the general sense that it is designed to sexually arouse the perpetrator or the victim. (People v. Madera, supra, 231 Cal.App.3d at p. 855.) That makes section 654 of limited utility to defendants who commit multiple sex crimes against a single victim on a single occasion. As our Supreme Court has stated, "[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally `divisible' from one another under section 654, and separate punishment is usually allowed. [Citations.]" (People v. Scott (1994) 9 Cal. 4th 331, 344, fn. 6 [36 Cal. Rptr. 2d 627, 885 P.2d 1040].) If the rule were otherwise, "the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act." (Id. at p. 347.) Particularly with regard to underage victims, it is inconceivable the Legislature would have intended this result. (Ibid.)
When appellant sexually abused Martha in December 2004, he started out by kissing her and trying to put his tongue into her mouth. After that, he *1007 penetrated her with his finger, and then he forced her to fondle his penis. While appellant insists the kissing was merely designed to facilitate the subsequent acts of penetration and fondling, the trial court could reasonably have concluded otherwise. In fact, the record is entirely susceptible of the interpretation that appellant kissed Martha for the purpose of his own arousal and that in so doing, he was not facilitating any other form of sexual contact, although that is where things ultimately led. Each lewd act was separate and distinct, and none of the acts were necessary to accomplish the others. Therefore, with respect to counts 1 through 3, the forcible lewd acts appellant committed against Martha in December 2004, no violation of section 654 has been shown.
The same analysis applies to the three acts of forcible lewd conduct involved in the January 2005 incident, which were alleged in counts 4 through 6. Since each of the charged actsagain, kissing, penetration and forced fondlingwere separate and distinct, and none of the acts were necessary to accomplish the others, section 654 would not come into play on these counts, at least when considering them in relationship to one another.
III
(5) However, it is clear that section 654 does apply to counts 2 and 5 when considering them in the context of appellant's sentence as a whole. As the court recognized at the time of sentencing, those two counts of forcible lewd conduct were based on the very same acts of digital penetration which formed the basis for the two counts of aggravated sexual assault, which were alleged in counts 7 and 8, respectively. Since the acts in counts 2 and 5 were the very means by which counts 7 and 8 were accomplished, appellant cannot be punished twice for those particular acts. (People v. Siko, supra, 45 Cal.3d at p. 823 ["if a person rapes a 13-year-old, he can be convicted of both rape and lewd conduct with a child on the basis of that single act, but he cannot be punished for both offenses ..."].) Accordingly, we will modify appellant's sentence to stay counts 2 and 5, as opposed to counts 5 and 6. This will not affect the length of appellant's sentence.
IV[*]
*1008 DISPOSITION
Appellant's sentence is modified by lifting the section 654 stay as to count 6 and imposing the stay as to count 2, resulting in no change to appellant's total prison term. The clerk of the superior court shall modify the abstract of judgment accordingly and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Sills, P. J., and Aronson, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part IV.
[1] All further statutory references are to the Penal Code.
[*] See footnote, ante, page 999.
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https://www.courtlistener.com/api/rest/v3/opinions/2260409/
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178 Cal. App. 4th 44 (2009)
JOHN C. GORMAN et al., Plaintiffs and Appellants,
v.
TASSAJARA DEVELOPMENT CORPORATION et al., Defendants and Respondents.
No. H031196.
Court of Appeals of California, Sixth District.
October 6, 2009.
*52 Bowman & Brooke, Daniel J. Smith; Gorman & Miller, John C. Gorman and Charles J. Stiegler for Plaintiffs and Appellants.
Archer Norris, W. Eric Blumhardt, William H. Staples, William L. Coggshall; Selman Breitman, Lincoln V. Horton and Elaine F. Harwell for Defendants and Respondents.
OPINION
RUSHING, P. J.
I. INTRODUCTION
In this appeal, plaintiffs assert that the trial court did not award them enough attorney fees and costs against their former general contractor and that the court should have explained its awards.
In November 1999, defendant Tassajara Development Corporation (usually contractor) promised by written contract to serve as general contractor for the construction of a residence for plaintiffs John C. Gorman and Jennifer Cheng (collectively plaintiffs), husband and wife. The contract provided in part: "In the event of litigation between the parties, or if a party becomes involved in litigation because of wrongful acts of the other party, the prevailing party will be entitled to recover reasonable attorneys' fees."
Gorman is an attorney who is the chief executive officer, chief financial officer, president, and secretary of the law firm of Gorman & Miller, PC, a professional corporation (usually the Gorman firm). In December 2003, Gorman initiated this lawsuit by filing a complaint on behalf of plaintiffs against numerous defendants, including contractor, alleging the defective construction of the residence. In May 2006, plaintiffs entered into a global settlement with a number of defendants, including contractor. Part of that settlement provided, "it is agreed that Plaintiffs shall be deemed to be the *53 `prevailing parties' in the Action solely for the purpose of invoking plaintiffs' rights to recover attorneys' fees and costs pursuant to the terms of the Construction Contract and that plaintiffs are entitled to recover costs as authorized by law as if they were prevailing parties in the Action."
Plaintiffs ultimately requested attorney fees of $1,350,538.83[1] and costs in excess of $266,561.96, including the fees and costs for filing their motion. Almost half these fees were billed by Gorman personally. After a contested hearing on their motion, in a 27-word order the trial court awarded plaintiffs "reasonable attorneys' fees of $416,581.37 and reasonable costs of $142,432.46." The trial court subsequently denied plaintiffs' request for a statement of decision and their motions for a new trial and for reconsideration of its order. Plaintiffs have appealed from the resulting judgment. As we will explain below, despite close study of the record, including the motion and opposition, we are unable to surmise a reasonable explanation for either of the amounts awarded. Given the apparent arbitrariness of the awards, we will reverse the judgment and remand for further proceedings.
II. PROCEDURAL HISTORY
A. The Litigation and Settlement
On November 17, 1999, plaintiffs entered into a contract signed by James Simmons on behalf of contractor whereby contractor would serve as a general contractor and construct a residence for plaintiffs in Los Altos Hills at a cost of $1,501,520, subject to increases or decreases specified in written change orders.
During the construction, plaintiffs expressed their concerns to contractor about the lack of progress and the materials used. After they took occupancy of the house on December 27, 2002, they discovered a number of problems with the construction. On December 13, 2003, Gorman and the Gorman firm filed a complaint in the Santa Clara County Superior Court on behalf of himself and his wife alleging defective construction, naming as defendants contractor and 23 other businesses and individuals who allegedly served as general contractors, subcontractors, and suppliers of material for the construction of the residence.
*54 On March 2, 2004, contractor filed a cross-complaint seeking indemnity from the other defendants in the case. It also alleged that plaintiffs had breached the construction contract by not paying what they owed.
A first amended complaint was filed on May 19, 2004, by Gorman. This complaint expanded plaintiffs' claims to include professional malpractice by David Takamoto, the architect plaintiffs hired on February 2, 1999, and by Shawn Massihpour and A.S.E. Consulting, structural engineers employed by Takamoto.
In July 2004, the Gorman firm associated the law firm of Bowman and Brooke LLP (the Bowman firm), with Daniel Smith doing much of the subsequent work of that firm.
A stipulation filed July 26, 2004, agreed to a special master to coordinate discovery and conduct settlement conferences. Upon the death of the special master, the parties agreed to a new special master by stipulation filed September 22, 2004. The special masters eventually issued 14 pretrial orders, each approved by Judge Elfving. The first order, filed July 26, 2004, provided, among other things, that all defendants were deemed to have filed cross-complaints for indemnity and contribution against each other. It also provided for creation of a document depository, and "[c]opying services will be at each party's expense."
In July 2005, at Smith's recommendation, plaintiffs retained Attorney Semha Alwaya to render opinions about insurance coverage.
A 50-page second amended complaint was filed on November 29, 2005, by Gorman and Smith, naming the original 24 defendants and about 26 more.
In May 2006, Attorney Bruce Janke appeared at several depositions on behalf of plaintiffs.
After four settlement conferences, on October 15, 2004, May 13, 2005, July 13, 2005, and July 27, 2005, and mediation on March 6, 2006, March 17, 2006, and May 15, 2006, plaintiffs reached a settlement with 36 of the defendants, including contractor, in a written agreement dated May 15, 2006. The agreement is 13 pages, not including signatures. Under the settlement, contractor agreed to make an initial payment to plaintiffs of $2,430,000 (not including discovery sanctions ordered against one defendant) by June 26, 2006, in exchange for a mutual release of all claims.
As stated in the introduction, the agreement provided that plaintiffs were deemed the prevailing parties for purposes of recovering attorney fees under *55 the construction contract and costs.[2] The agreement also provided that it "does not include or constitute an admission of any fact, or of liability or fault by any Party regarding any fact, claim, allegation, issue of law or violation of law. . . . This agreement may not be used as evidence of any wrongdoing, misconduct or liability by any Party or anyone else."
An exhibit attached to the settlement agreement and incorporated into it by reference reflected that contractor's contribution to the settlement is $994,000 (41 percent of the total), with 17 other sets of defendants paying to contractor the balance to be paid plaintiffs.[3]
*56 B. The Motion for Attorney Fees and Costs
To avoid repetition, we will summarize the procedural history in this part and will summarize their arguments later. On July 31, 2006, plaintiffs filed a "Motion for Attorneys' Fees and Costs" from contractor. The notice of motion and accompanying memorandum of points and authorities sought recovery of attorney fees and costs of $1,729,391.35, without breaking down this total. The motion was accompanied by a memorandum of costs (signed by Craig Hansen, an associate attorney in the Gorman firm) that itemized costs of $266,561.96, while an attached declaration, the first by Hansen, explained that plaintiffs were seeking total costs of $343,516.72.[4] The declaration further explained that this total included costs of $342,319.23 incurred prior to settling the case in May 2006, and an additional $1,197.49 in postsettlement costs in preparing its motion for fees and costs and in resisting contractor's motion for discovery regarding legal fees. The components of the presettlement costs were $68.74 for Attorney Alwaya, $6,283.76 for the Bowman firm, and $335,966.73 for the Gorman firm.
The hearing, initially set for August 24, 2006, was continued on August 10, 2006, at contractor's request by Judge Elfving to October 3, 2006, with its opposition due by September 19, 2006. Judge Elfving was unavailable on October 3, 2006, so Judge Ward granted the request of the parties to continue the hearing until Judge Elfving could hear it on October 19, 2006.
On September 19, 2009, contractor filed a document entitled "Tassajara Development Corporation's opposition to plaintiff's [sic] motion for attorney's fees and costs; or in the alternative motion to tax fees and costs."[5] (Capitalization omitted.) Plaintiffs filed a response to this opposition.
At the hearing on October 19, 2006, which lasted less than an hour, the court took the motion under submission without asking any questions of the parties or expressing any agreement or disagreement with any of the points *57 made in the motion or opposition.[6] The following day it issued the 27-word order awarding fees and costs described in the introduction above (see ante, at p. 53).[7] The trial court did not expressly disapprove of any particular components of plaintiffs' claims as unreasonable or unnecessary.
On October 30, 2006, plaintiffs submitted a written request for a statement of decision asking the court to answer 29 questions, which was opposed by contractor. On November 6, 2006, without a hearing on plaintiffs' request, the court issued an order denying the request without stating any reasons.
Meanwhile, on November 3, 2006, plaintiffs filed a notice of intention to move for a new trial on the attorney fee award and a motion to reconsider, modify, or clarify the court's award. Contractor filed opposition. After a hearing on November 30, 2006, the following day the court filed an order denying plaintiffs' motions without stating any reasons. The court thereafter entered a judgment for attorney fees and costs in favor of plaintiffs as awarded by its earlier order.
III. PLAINTIFFS' PROCEDURAL OBJECTIONS
Before reaching the merits of the trial court's awards, we consider whether the trial court was required by statute or case law to provide a statement or some other explanation of its decision, whether plaintiffs timely requested a statement of decision, whether the trial court erred in not expressly ruling on evidentiary objections, and whether contractor was required to file a formal motion to tax costs.
A. The Need for a Statement of Decision
Plaintiffs claim the trial court erred by not providing a statement of decision in response to their request. Plaintiffs did not file a written request for a statement of decision before the October 19, 2006 hearing on their motion for attorney fees and costs. They did not orally request a statement of decision at the hearing. They filed a written request 10 days after the court issued its order on their motion.
Code of Civil Procedure section 632[8] provides in part: "In superior courts, upon the trial of a question of fact by the court, written findings of fact and *58 conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision."
(1) Is a Statement of Decision Required on a Motion for Attorney Fees?
(1) Plaintiffs assert that the hearing on their motion for attorney fees in this case qualifies as a "trial" under section 632. The California Supreme Court has indicated otherwise in two cases. In Maria P. v. Riles (1987) 43 Cal. 3d 1281 [240 Cal. Rptr. 872, 743 P.2d 932] (Maria P.), the defendants-appellants challenged attorney fees awarded under the private attorney general theory codified in section 1021.5. Among other things, the appellants in Maria P. complained that the trial court had erred by failing to issue a statement of decision under section 632. The high court observed: "Cases decided under section 632 generally have held that a statement of decision is not required upon decision of a motion. (See, Lavine v. Hospital of the Good Samaritan (1985) 169 Cal. App. 3d 1019, 1026 [215 Cal. Rptr. 708]; In re Marriage of Simmons (1975) 49 Cal. App. 3d 833, 836 [123 Cal. Rptr. 213] [findings of fact are only required on issues joined by the pleadings where the decision of the court following the findings is a judgment]; 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 371, pp. 377-378.) Courts have created an exception for proceedings involving custody of children (Michael U. v. Jamie B. (1985) 39 Cal. 3d 787, 792 [218 Cal. Rptr. 39, 705 P.2d 362]; In re Rose G. (1976) 57 Cal. App. 3d 406, 418 [129 Cal. Rptr. 338]). However, we have discovered no case requiring a statement of decision for an order on a motion for attorney fees." (Maria P., at p. 1294.)
The court's analysis, however, did not stop at this point. The court went on to observe that its prior decisions "require the trial court first to determine a touchstone (or lodestar) figure based on the time spent and reasonable hourly compensation for each attorney involved in the case" (Maria P., supra, 43 Cal.3d at p. 1294), though the trial court has discretion to make upward or downward adjustments. The court noted, "The court's failure to specify in its written order the basis of its calculation of the award, and the absence in the appellate record of a transcript of the fee hearing or a settled statement of that proceeding (Cal. Rules of Court, rule 4(e)) make it impossible for us to determine whether the trial court based its award on the lodestar adjustment *59 method." (Id. at p. 1295.) However, the court concluded that reversal was not warranted because the appellants had failed to carry their burden of providing a record adequate for review by way of settled statement. (Id. at pp. 1295-1296.)
The California Supreme Court returned to this topic 14 years later in Ketchum v. Moses (2001) 24 Cal. 4th 1122 [104 Cal. Rptr. 2d 377, 17 P.3d 735] (Ketchum). At issue on appeal was whether the trial court had properly calculated the attorney fees due after it granted a special motion to strike a complaint under section 425.16. The trial court had doubled the lodestar amount in making its award. In the course of considering the propriety of this award, the high court stated: "Ketchum also contends that the superior court erred by failing to provide a `reasoned explanation' for denying his objections to specific items in the billing records. The superior court was not required to issue a statement of decision with regard to the fee award. (See Maria P. v. Riles, supra, 43 Cal.3d at p. 1294.)" (Ketchum, at p. 1140.)
As in Maria P., the court's analysis did not stop there. The court continued as follows. "Moreover, although Ketchum opposed the motion for attorney fees, he did not request a statement of decision with specific findings. `"All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown."' (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564 [86 Cal. Rptr. 65, 468 P.2d 193].)" (Ketchum, supra, 24 Cal.4th at p. 1140.) As in Maria P., the court concluded that the appellant had failed to provide an adequate record on appeal to review the fee award. (Ketchum, supra, 24 Cal.4th at pp. 1140-1141.) The award in Ketchum was reversed on other grounds, but not due to the lack of a statement of reasons.[9]
Plaintiffs rely on footnote 6 in Mandel v. Lackner (1979) 92 Cal. App. 3d 747 at page 759 [155 Cal. Rptr. 269] (Mandel), disapproved on another ground in Serrano v. Unruh (1982) 32 Cal. 3d 621, 630, footnote 12 [186 Cal. Rptr. 754, 652 P.2d 985] (Serrano IV), a case predating Maria P., as establishing that an attorney fee determination is a "trial." Mandel did not go this far, however. The court observed that formal findings would be mandatory on the issues of the time and unit-value factors of attorney fees if requested by a party upon the trial of a question of fact. The court stated in this footnote, "Such `trial' was conducted on respondent's motion for attorneys' fees, and formal *60 findings were requested, but they are not ordinarily required in proceedings upon a motion. (In re Marriage of Simmons[, supra,] 49 Cal. App. 3d 833, 836 . . . .)" (Mandel, supra, 92 Cal.App.3d at p. 758, fn. 6.) The Mandel court declined in this footnote to reach the issue of whether findings were required, as noted by Rebney v. Wells Fargo Bank (1991) 232 Cal. App. 3d 1344, 1348 [284 Cal. Rptr. 113] (Rebney).
Rebney, decided before Ketchum, concluded that no statement of decision under section 632 was required by Maria P. or Mandel, though the trial court had issued one. "The record need only show that the attorney fees were awarded according to the `lodestar' or `touchstone' approach. [¶] The court's statement of decision satisfied this minimal requirement, as it expressly stated that the court had awarded fees based on lodestar amounts, with further consideration of counsel's contributions to the litigation. Nothing more was necessary. The court was not required to explain which of counsel's hours were disallowed, or how or whether any hours were apportioned. On appeal, we must infer all findings on these points in favor of the prevailing parties. (In re Marriage of Arceneaux (1990) 51 Cal. 3d 1130, 1133 [275 Cal. Rptr. 797, 800 P.2d 1227].)" (Rebney, supra, 232 Cal.App.3d at p. 1349.)[10]Rebney went on to conclude in the alternative that if section 632 applied, the appellant "waived any error by failing to bring the claimed defects to the attention of the trial court after issuance of the statement of decision." (232 Cal.App.3d at pp. 1349-1350.)
Some later opinions (all involving attorney fees awarded after a special motion to strike under § 425.16, subd. (c)) have interpreted Maria P. and Ketchum as holding that no statement of decision is needed after a hearing on a motion for attorney fees. (Compare Maughan v. Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1252 [49 Cal. Rptr. 3d 861] ["A statement of decision is not required regarding an award of attorney fees pursuant to a motion."] and Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th 1315, 1323 [81 Cal. Rptr. 3d 866] ["There is no requirement, however, that the trial court provide a statement of decision . . ."] with Mann v. Quality Old Time Service, Inc. (2006) 139 Cal. App. 4th 328, 342, fn. 6 [42 Cal. Rptr. 3d 607] ["Although a more detailed explanation would certainly have been helpful, a *61 trial court is not required to issue a statement of decision with regard to a fee award, unless a party timely requests one."].)[11]
As indicated above, the California Supreme Court's statements in Maria P. and Ketchum that an attorney fee award need not be explained in a statement of decision are, at best, alternative holdings, with those decisions resting equally on other grounds. It is notable that in neither case did the California Supreme Court reverse the attorney fee award due to lack of a statement of decision.
Plaintiffs seek to distinguish Maria P. as involving attorney fee rulings that are not intended, unlike the ruling here, to be entered as a judgment. We doubt the significance of this factual distinction, but we need not ponder this issue further in light of the timing of plaintiffs' request for a statement of decision.
(2) Was Plaintiffs' Request for a Statement of Decision Timely
(2) If we assume for the sake of discussion that the hearing in this case amounted to a trial within the meaning of section 632, it was a trial that was "concluded within one calendar day or in less than eight hours over more than one day." In such cases, according to the statute, "the request [for a statement of decision] must be made prior to the submission of the matter for decision." (Ibid.) A party's entitlement to a statement of decision depends on the party making a timely request. (In re Marriage of Ananeh-Firempong (1990) 219 Cal. App. 3d 272, 280 [268 Cal. Rptr. 83]; In re Marriage of Gray (2002) 103 Cal. App. 4th 974, 980 [127 Cal. Rptr. 2d 271].)
Plaintiffs assert that the trial on this motion lasted longer than a day. They argue, relying on Gordon v. Wolfe (1986) 179 Cal. App. 3d 162 [224 Cal. Rptr. 481], that the trial included all judicial consideration of their motion, which involved 520 pages of briefing and evidence, from the time the motion was filed on July 31, 2006, through its continuances on August 10 and October 3 to the ruling on October 20, 2006, whether that consideration took place on or off the bench, and apparently during or after regular working hours. They suggest there was a three-month trial of this issue.
(3) The same contention was rejected in In re Marriage of Gray, supra, 103 Cal. App. 4th 974 at pages 978-979, a case cited by neither side, in the *62 following thorough discussion. "Appellant argues that `when, as in the case at bar, the court is presented with volumes of evidence and documentation, and asked to consider a [31-]year marriage, and divide a community estate in excess of $3 [million] in a process that took more than a year to complete, it is inconceivable that trial lasted less than one day irrespective of the actual number of hours spent arguing the case.' However, in setting the time for a request for a statement of decision, section 632 does not speak to the complexity of issues in the case. Rather, it speaks to the time consumed in the trial of the matter. As we have said, appellant has failed to show that the trial court erred in making an express finding that the trial of this case lasted less than eight hours.
"Appellant relies on Gordon v. Wolfe[, supra,] 179 Cal. App. 3d 162, 166 . . . where the court remarked, `Courts may have to count days, but they are not required to count hours and minutes under . . . section 632.' However, when the Gordon court made this remark, section 632 contained no reference to a trial lasting less than eight hours over more than one day. Rather, the statute referred only to a trial lasting less than one day. (Stats. 1981, ch. 900, § 1, p. 3425.)
"The status of section 632 when Gordon was decided, in 1986, and its subsequent amendment, were described by the court in Palm v. Schilling (1988) 199 Cal. App. 3d 63 [244 Cal. Rptr. 600], as follows: `At the time of trial, . . . section 632 obligated the court to issue a statement of decision, if one was requested, after "the trial of a question of fact by the court . . . ." In trials lasting more than one day, the request was required to be made within 10 days after the court's tentative decision. If the trial was concluded in less than a day, however, the request had to be made before the matter was submitted.
"`Problems arose when trials were conducted over a period of several days but actually consumed fewer than eight hours of court time. (See, e.g., R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal. App. 3d 50 [236 Cal. Rptr. 202]; Gordon v. Wolfe[, supra,] 179 Cal. App. 3d 162 . . ., Mitchell v. County of Orange (1985) 165 Cal. App. 3d 1185 [211 Cal. Rptr. 563], and Architects & Contractors Estimating Service, Inc. v. Smith (1985) 164 Cal. App. 3d 1001 [211 Cal. Rptr. 45].) The Legislature has hopefully put an end to this semantic tempest by amending section 632, effective January 1, 1988, to provide that a request for statement of decision must be made before the matter is submitted where "the trial is concluded within one calendar day or in less than eight hours over more than one day . . . ." (Stats. 1987, ch. 207, § 1.)' (Palm v. Schilling, supra, 199 Cal. App. 3d 63, 66-67, fn. 2.)
*63 "In light of the 1987 amendment of section 632, Gordon's remark no longer states good law on this point. Rather, in light of the 1987 amendment to section 632, trial courts must keep track of the time of short cause matters. Although, at the time of trial in this case, no legal authority required the courtroom clerk to keep track of the time of trial in the minutes, in the future the courtroom clerk should keep track in the minutes so that the court, counsel, and the parties will know when a request for a statement of decision must be made."
In our case, the trial court rejected plaintiffs' request for a statement of decision without expressly adopting contractor's opposition that the hearing had lasted less than a half-hour.
(4) The 1987 amendment of section 632 equates a one-day trial with a trial taking eight hours over more than one calendar day. The clear implication is that an eight-hour trial is considered a one-day trial. The reality is that trial judges spend additional time off the bench preparing for hearings, researching the law, and reading motions and briefs, but the statute indicates an intent not to count that time as trial time. Otherwise the trial judge would have to submit timesheets to the parties in a case so they would know when to request a statement of decision. The parties may be expected to know and add up the time they have spent in court hearings on a case, but not how long the judge has considered the case outside of the courtroom. We reject plaintiffs' argument that judicial time off the bench should count in determining when to request a statement of decision. We conclude that their request, filed 10 days after the court had issued its order on their motion, was untimely and that they were not entitled to a statement of decision, even assuming for the sake of discussion that it would otherwise be necessary to prepare one for a hearing on a motion requesting attorney fees.[12]
(3) Case Law Regarding Awards of Attorney Fees
Plaintiffs appear to contend that case law, apart from section 632, requires trial courts to provide some explanation of their rulings on requests for attorney fees.
(5) It is true that the California Supreme Court has provided ample guidance to trial courts for determining awards of attorney fees. For example, Ketchum, supra, 24 Cal. 4th 1122 explained its earlier decision in Serrano v. Priest (1977) 20 Cal. 3d 25 [141 Cal. Rptr. 315, 569 P.2d 1303] (Serrano III) *64 as follows at pages 1131-1132. "Under Serrano III, a court assessing attorney fees begins with a touchstone or lodestar figure, based on the `careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.' (Serrano III, supra, 20 Cal.3d at p. 48.) We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method `"is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts."' (Id. at p. 48, fn. 23.) In referring to `reasonable' compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; `padding' in the form of inefficient or duplicative efforts is not subject to compensation. (See id. at p. 48.)
"Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at p. 49.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The `"experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."' (Ibid.)" (Italics omitted.)
Ketchum proceeded to review how the Supreme Court, after Serrano III, has repeatedly emphasized the importance of using the lodestar calculation in its decisions in Serrano IV, supra, 32 Cal. 3d 621, 624, 639, Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 322 [193 Cal. Rptr. 900, 667 P.2d 704], Maria P., supra, 43 Cal. 3d 1281, 1294-1295, and PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095 [95 Cal. Rptr. 2d 198, 997 P.2d 511] (PLCM). (Ketchum, supra, 24 Cal.4th at pp. 1133-1134.)
PLCM, supra, 22 Cal. 4th 1084, concluded, among other things, as to fees awarded under Civil Code section 1717 pursuant to a contractual agreement, "that the lodestar method, as applied to the calculation of attorney fees for in-house counsel is presumably reasonable, although in exceptional circumstances, the trial court is not precluded from using other methodologies." (22 Cal.4th at p. 1097.)
*65 (6) Yet, as explained above, despite all this emphasis on trial courts beginning their attorney fees calculations with a lodestar amount, Ketchum also observed that the trial court in the case before it was not required to issue a statement of decision with respect to the fee award. (Ketchum, supra, 24 Cal.4th at p. 1140.)[13] None of these Supreme Court decisions required a trial court to provide an explanation of its decision on a motion for attorney fees. This precedent teaches trial courts how to think about claims for fees, not what to say in ruling on the claims.
None of the other cases cited by plaintiffs establishes as a general rule that trial courts must provide such an explanation. We have already distinguished Mandel, supra, 92 Cal. App. 3d 747 above (see ante, at p. 59). In re Marriage of Cueva (1978) 86 Cal. App. 3d 290 [149 Cal. Rptr. 918] said nothing about the trial court providing an explanation. The problem in that case was that "there was nothing before the trial court disclosing services of such a nature and extent as to justify an attorney fee of $21,000." (Id. at p. 301.)
In Tilem v. City of Los Angeles (1983) 142 Cal. App. 3d 694 [191 Cal. Rptr. 229], the appellate court stated: "we have no way of determining how the trial court arrived at the figure of $15,000 for attorney fees in the state actions as against a total undifferentiated claim of $70,000. [¶] Since we have concluded that the matter must be returned to the trial court to redetermine the issue of damages, we think it appropriate to also provide the trial court an opportunity to redetermine the amount of litigation costs and set forth the reasons therefor." (Id. at pp. 711-712.) This reversal was not predicated on the absence of an explanation for the attorney fee award nor did the decision purport to establish a general rule requiring an explanation of all awards of attorney fees.
State of California v. Meyer (1985) 174 Cal. App. 3d 1061 [220 Cal. Rptr. 884] involved landowners seeking mandatory attorney fees under sections 1268.610 and 1235.140 following the state's abandonment of a condemnation *66 action. While awarding some fees, the trial court declined to make any award for the fees involved in collecting attorney fees. (174 Cal.App.3d at p. 1074.) The appellate court concluded that they were entitled to reasonable fees for their collection efforts and stated, "Since we cannot determine how the trial court arrived at the figure of $30,000 and since landowners are entitled to reasonable attorneys' fees for at least part of their efforts in opposing the motion to tax costs, we remand the issue of attorneys' fees to the trial court for clarification or redetermination of litigation costs and advise it set forth the reasons therefor." (Id. at p. 1074.) The reversal was based on an error in denying any collection fees. The opinion merely advised the trial court in that case to provide reasons on reconsideration.
Similarly, the issue in Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal. App. 4th 156 [111 Cal. Rptr. 2d 636] was whether the trial court abused its discretion in declining to award attorney fees under Corporations Code section 8337 after finding that a corporation had wrongfully rejected a demand to produce its minutes for inspection. (92 Cal.App.4th at p. 158.) The appellate court noted an inconsistency between this finding and its ruling and stated: "the court also, without explaining its decision either on the record or in its order, denied Moran recovery of attorney fees and costs. Although Corporations Code section 8337 does not require a written order explaining the court's decision, without any explanation of its reasoning, we cannot conclude this aspect of the court's decision had any reasonable basis. Perhaps the court did have a sound rationale, but we simply cannot reach this conclusion based on the order and the reporter's transcript of the court's decision. The decision is therefore subject to reversal." (Id. at pp. 160-161.)[14] Noting that an attorney fee award under the statute is discretionary, the court continued, "We do, however, encourage the trial court to consider all of the facts of a particular case and articulate its reasons (either on the record in open court or in a written order) for granting or denying such an award." (92 Cal.App.4th at p. 161.) To the extent that the appellate court sought to generalize this last observation beyond this particular case, at most it applies to attorney fees sought under Corporations Code section 8337. It was not stated as a general rule for all decisions on requests for attorney fees.
Plaintiffs also assert that it is the federal rule that "district courts have a duty to explain their reasoning when ruling on a motion for attorneys' fees." *67 Assuming that there is such a rule, plaintiffs acknowledge that it is not binding in a California state court action alleging breach of contract and negligence.
We find no California case law analogue to section 632 requiring trial courts to explain their decisions on all motions for attorney fees and costs, or even requiring an express acknowledgment of the lodestar amount. The absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission. As reiterated in Ketchum, supra, 24 Cal. 4th 1122 at page 1140: "`"All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown."' (Denham v. Superior Court[, supra,] 2 Cal. 3d 557, 564 . . . .)" In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors. (Cf. Downey Cares v. Downey Community Development Com. (1987) 196 Cal. App. 3d 983, 998 [242 Cal. Rptr. 272] ["We are entitled to presume the trial court considered all the appropriate factors in choosing the multiplier and applying it to the whole lodestar."].) In awarding attorney fees in a lesser amount than requested, trial courts are not required to specify each and every claimed item found to be unsupported or unreasonable. (Cf. Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 625 [134 Cal. Rptr. 602] ["Nor is there any merit to defendant's contention that it was incumbent upon the trial court to specify each and every item in defendant's memorandum with which the court found fault. This would be inconsistent with the well-established rule discussed above that the trial court is entitled to take all of the circumstances into account and is not bound by the itemization claimed in the attorney's affidavit."].)
B. Express Ruling on Evidentiary Objections
Plaintiffs assert that they were prejudiced by the court's failure to expressly rule on some evidentiary objections.
In support of contractor's opposition to plaintiffs' motion for fees and costs, contractor submitted a declaration by Dennis Govan, a licensed architect. He offered the following opinions. The architectural plans prepared by defendant Takamoto and the structural plans prepared by defendants Shawn Massihpour and A.S.E. Consulting were deficient. Contractor did not fall below its own standard of care in relying on them. Many subcontractors worked directly for plaintiffs outside of contractor's control. Therefore, contractor was not liable for the negligence of these defendants.
Plaintiffs objected to Govan's opinions in writing in part as lacking foundation or personal knowledge and containing improper legal conclusions *68 and hearsay. They did not renew their objections at the October 19, 2006 hearing on their motion. The court's written order did not expressly rule on these objections.
By their motions for new trial and reconsideration, plaintiffs asked for a ruling on their objections. The order denying their motions did not expressly rule on their objections.
Plaintiffs assert that the applicable rule can be found in cases involving motions for summary judgment. The California Supreme Court is currently considering the issue"Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?"in a case arising from this court. (Reid v. Google, Inc. (2007) 155 Cal. App. 4th 1342 [66 Cal. Rptr. 3d 744], review granted January 30, 2008, S158965.) Until we receive guidance from the California Supreme Court, the prevailing view in the summary judgment context appears to be "that a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and it if does not, the objections are deemed waived and the objected-to evidence included in the record." (Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564, 578 [57 Cal. Rptr. 3d 204]; cf. Vineyard Springs Estates v. Superior Court (2004) 120 Cal. App. 4th 633, 642-643 [15 Cal. Rptr. 3d 587].)
Plaintiffs rely on Vineyard Springs Estates v. Superior Court, supra, 120 Cal. App. 4th 633, as requiring that a trial court must rule on evidentiary objections. In that case, the appellate court issued a writ of mandate commanding the court "to rule on all evidentiary objections proffered by defendant . . . ." (Id. at p. 643.) That writ decision does not establish that the failure to expressly rule on an evidentiary objection at a hearing on a motion for attorney fees and costs is prejudicial or reversible per se on appeal. At best, plaintiffs' repeated requests for a ruling on their objections may be regarded as preserving their objections on appeal. (Siam v. Kizilbash (2005) 130 Cal. App. 4th 1563, 1580 [31 Cal. Rptr. 3d 368].) Contractor asserts that the court's conclusions can be upheld without reliance on this declaration, so we will disregard it.
C. The Need for a Formal Motion to Tax Costs
On appeal, plaintiffs renew their contention that contractor has forfeited any objections to plaintiffs' claim for costs by failing to file a motion to tax costs. They appear to have overlooked that contractor's opposition to their motion was entitled "opposition . . . or in the alternative motion to tax fees and costs." (Capitalization omitted.)
In this case, the settlement agreement provided in part that "Plaintiffs' claim for attorneys' fee and costs (including `Stearman' costs) shall be *69 submitted to the court by appropriate motion . . . ." "Plaintiffs shall have 75 days from their receipt of a copy of this Agreement that has been fully and validly executed by all Settling Parties in which to file their motion for recovery of attorneys' fees and costs." While the agreement did not specify how contractor should oppose plaintiffs' claims, the agreement contemplated there would be some type of opposition which the trial court would resolve.
As noted above, plaintiffs filed a motion for attorney fees and costs that was accompanied by a cost memorandum. The motion requested recovery of costs totaling $343,516.72, greater than the amount itemized in the cost memo. The attached Hansen declaration stated, "The total amount of fees and costs recited in paragraph 3 of this declaration includes $266,561.96 in statutory costs that are itemized on the Memorandum of Costs that is being filed concurrently herewith."
(7) There is no statute requiring the filing of a motion to tax costs. Section 1034, subdivision (a) provides that "costs allowable under this chapter shall be claimed and contested in accordance" with the California Rules of Court. In 2006, when plaintiffs' motion for fees and costs was heard, California Rules of Court, former rule 870 (now rule 3.1700) provided that a "prevailing party who claims costs shall serve and file a memorandum of costs" and that any "notice of motion to strike or tax costs shall be" timely filed and served. Former rule 870(b)(2) provided (as does rule 3.1700(b)(2) now): "Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable."
While contractor's opposition to plaintiffs' motion was alternatively entitled a motion to tax costs, contractor did not specify objectionable line items in the cost memo, but then again, $76,954.76 of plaintiffs' claimed costs (22 percent) were not itemized in this memo, so no such objection could be made to them. We consider it clear enough from contractor's opposition what cost claims contractor objected to. We perceive no prejudice to plaintiffs, or even a claim of prejudice, from the absence of a more formal motion to tax costs. (Cf. California Recreation Industries v. Kierstead (1988) 199 Cal. App. 3d 203, 209 [244 Cal. Rptr. 632] [no prejudice because plaintiffs sought attorney fees by memorandum of costs instead of noticed motion when defendants successfully objected to plaintiffs' claims at ensuing hearing].)
(8) Contractor argues that the parties "agreed to forego the usual procedure for determining costs, and agreed to resolve the issue by way of a motion filed by" plaintiffs. Plaintiffs dispute that they had such an agreement, but they offer no other explanation for why they requested $76,954.76 in *70 costs that they did not itemize in their cost memo. Usually, the omission of an item from a cost memo may be regarded as a waiver of the prevailing party's claim to that item. (Hotchkiss v. Smith (1895) 108 Cal. 285, 286-287 [41 P. 304]; Sepulveda v. Apablasa (1938) 25 Cal. App. 2d 381, 389 [77 P.2d 526]; cf. Gerard v. Ross (1988) 204 Cal. App. 3d 968, 983-984 [251 Cal. Rptr. 604] [untimely memo].) Contractor here has not objected to any claimed costs on the procedural basis that they were not included in the cost memo.
Section 1032, subdivision (c) states in part: "Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs . . . ."[15] The wording of the settlement agreement and the subsequent conduct of the parties provided substantial evidence for the trial court to conclude that the parties had stipulated to an alternative procedure for awarding costs, dispensing with the usual formalities of a complete cost memo and a motion to tax costs. The trial court was justified in considering the merits of contractor's objections to plaintiffs' cost claims. We conclude there was neither error nor prejudice in the omission of a formal motion to tax costs.
IV. THE MERITS OF THE COURT'S AWARDS
A. The Claimed Costs
On appeal, plaintiffs challenge the court's award of costs of $142,432.46 as inadequate. In their briefs on appeal, plaintiffs asserted that they were only awarded 53 percent of their claimed costs of $266,561.96, the amount stated in their cost memo. This implied that plaintiffs were no longer seeking the additional $76,954.76 originally requested in their motion and supporting memorandum of points and authorities, though not in their cost memo. To better understand their contentions, by letter this court asked generally if plaintiffs were seeking costs not stated in their cost memo and specifically about certain costs. Plaintiffs have explained in a supplemental letter brief that they continue to seek costs not stated in their cost memo.
(1) Statutory Costs
After a brief overview of pertinent statutes, we will consider separately contractor's objections by categories of costs. We look to the statutes because, as already noted, the settlement in this case provided in part "that plaintiffs are entitled to recover costs as authorized by law as if they were prevailing parties in the Action."
*71 (9) In Davis v. KGO-T.V., Inc. (1998) 17 Cal. 4th 436 [71 Cal. Rptr. 2d 452, 950 P.2d 567] (Davis), the California Supreme Court explained: "The `costs' of a civil action consist of the expenses of litigation, usually excluding attorney fees. Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute. `It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party.'" (Id. at p. 439.)
Section 1032 provides in part: "(b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding."
Davis explained further: "Subsequent to the enactment of Government Code section 12965, the Legislature enacted Code of Civil Procedure section 1033.5, to expressly define the term `costs' as used in Code of Civil Procedure section 1032, the principal statute governing the right of a prevailing party to recover costs. Code of Civil Procedure section 1033.5 specifies which costs are `allowable' (id., subd. (a)), which are `not allowable . . ., except when expressly authorized by law' (id., subd. (b)), and which may be allowed or denied in the court's discretion (id., subd. (c))." (Davis, supra, 17 Cal.4th at p. 441.)
Section 1033.5, subdivision (c) provides in part that "(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. [¶] (3) Allowable costs shall be reasonable in amount."
(10) As this court explained in Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal. App. 4th 11, 29-30 [69 Cal. Rptr. 3d 678]: "In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. `If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.' (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131 [84 Cal. Rptr. 2d 753].) Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Id. at p. 132.) `Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.' (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774 [23 Cal. Rptr. 2d 810].)"
(A) Costs of Attending Depositions
Section 1033.5, subdivision (a) includes as allowable costs those involved in "(3) Taking, videotaping, and transcribing necessary depositions including *72 an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions."
(11) Section 1033.5, subdivision (a)(3) clearly contemplates recovery of travel costs incurred by counsel to attend depositions. (Foothill-De Anza Community College Dist. v. Emerich, supra, 158 Cal. App. 4th 11, 30.) By negative implication, this statute does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions (Ladas v. California State Auto. Assn, supra, 19 Cal.App.4th at pp. 775-776 (Ladas)) nor does it allow recovery for "meals eaten while attending local depositions." (Id. at p. 774.)
An attachment to plaintiffs' cost memo itemized a total of $68,288.36 for deposition costs under the headings of taking, transcribing, and travel. Contractor has objected to a small portion of those deposition costs. Contractor did not object to mileage travel costs of the Gorman firm identified in the firm's billings and in the cost memo. Contractor objected to 21 travel items totaling $572.65 listed in the billings of the Bowman firm. These objections were itemized in an attachment to a declaration by William Coggshall, an associate attorney in the Archer Norris firm, cocounsel for contractor.
As far as we can tell, some, but not all, of these Bowman attorney travel charges were catalogued in the cost memo as travel to depositions. For example, the cost memo listed four travel charges in December 2005 of $43.65, though the Bowman billings listed five charges of $43.65 for Daniel Smith traveling to four different depositions on five days that month. On the other hand, the cost memo listed five travel charges of $40.05, while the Bowman billings included only three charges in that amount. Contractor, presumably responding to the Bowman billings and not the cost memo, has challenged five charges of $43.65 and three of $40.05.
Contractor has challenged other travel charges that do not appear at all in the cost memo, though they were included in the Bowman firm's total costs of $6,283.76, and this total was included in the total costs for which recovery was sought in the motion and accompanying points and authorities. For example, charges of $31.11 for April 12, 2005, and $31.30 on July 27, 2005, were described as Smith going to meals with Gorman. There is also a travel expense of $35.64 for Attorney Parris Schmidt on August 8, 2005, though his billing for his time on that date reflects only that he attended a deposition by telephone. There are other travel expenses for Schmidt from August 18, 2005, totaling $44.45, when his billing reflects no work on this case between August 11 and 22, 2005. There are two travel charges of $4.85 attributed to W. Noori on September 20 and 26, 2005, when it does not appear any deposition was taken.
*73 On appeal, plaintiffs do not disavow an interest in recovering all these costs, whether or not identified accurately or at all in their cost memo. Instead, they renew the claim from their reply memo that "many of the items that [contractor] challenged are made `recoverable' under CCP § 1033.5 (such as deposition fees, travel and meals related to depositions, and deposition fees paid to an opposing litigant's expert)."
As to the costs related to attending depositions, it appears that plaintiffs made some attempt to segregate recoverable deposition costs, listed in their cost memo, from unrecoverable costs, such as meals and travel unrelated to attending depositions, but they have muddied the waters by also asking in their motion to recover unrecoverable costs. They continue on appeal to attempt to justify this broader request. Of the $572.65 challenged by contractor, it appears that $420.45 was recoverable under section 1033.5, subdivision (a)(3), while the remaining $152.20 was not.
(B) Expert Deposition Fees
The Bowman firm billings classified eight charges as expert deposition fees and one charge as simply a "deposition fee." Each charge was listed in the cost memo under the heading of the costs of taking depositions. Contractor objected to these nine charges totaling $3,414.06, though miscalculating their total.[16]
This court asked plaintiffs if they are seeking recovery of these amounts. Plaintiffs have responded as follows in a supplemental letter brief. "Despite the nomenclature used by the Bowman & Brooke accounting department in preparing billing statements, the `expert fees' referenced by that law firm's bills are not for `expert fees' within the meaning of the CCP and have not been claimed in the Memorandum of Costs as recoverable `expert fees.' *74 However, such amounts are claimed in the Memorandum of Costs as recoverable deposition costs." "These fees had to be paid as part of the deposition process and are statutorily recoverable costs related to the taking of the depositions under Cal. Civ. Proc. Code [sic] § 1033.5(a)(3)." Plaintiffs explained that these fees compensated defense experts for their time while being deposed.
(12) Regarding the recovery of expert witness fees as costs, the California Supreme Court has explained: "Allowable costs include ordinary witness fees and the fees of experts ordered by the court, so long as they are `reasonably necessary' to the conduct of the litigation and `reasonable' in amount. (Code Civ. Proc. 1033.5, subds. (a)(7) & (8), (c)(1), (2) & (3).) Nonallowable costs include fees of experts not ordered by the court, `except when expressly authorized by law.' (Id., 1033.5, subd. (b)(1).)" (Davis, supra, 17 Cal. 4th 436, 441.) Davis concluded generally "that the fees of experts not ordered by the court are not an allowable item of costs . . . ." (Id. at p. 446.) McGarity v. Department of Transportation (1992) 8 Cal. App. 4th 677 [10 Cal. Rptr. 2d 344] more specifically concluded that expert deposition fees are not recoverable under the costs statute. (Id. at p. 686; cf. Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App. 4th 592, 599-602 [3 Cal. Rptr. 3d 593] (Baker-Hoey) [costs incurred in deposing treating physicians are not recoverable].)
Absent evidence or even an argument that these defense experts were ordered by the court, plaintiffs were not entitled to recover their deposition fees.
(C) Postage, Photocopying, and Related Fees
Shifting its focus to the billings of the Gorman firm, contractor also objected to what it calculated to be $54,886.27 in nonrecoverable costs identified as for photocopying, postage, faxing, and Federal Express.[17]
(13) Section 1033.5, subdivision (b) provides that the following costs are not recoverable "except when expressly authorized by law: [¶] . . . [¶] *75 (3) Postage, telephone, and photocopying charges, except for exhibits." Interpreting this statute, Ladas, supra, 19 Cal. App. 4th 761 concluded that it also precludes recovery for faxing documents. (Id. at p. 775; cf. Ripley v. Pappadopoulos (1994) 23 Cal. App. 4th 1616, 1627 [28 Cal. Rptr. 2d 878] ["the expenses of copying documents, Federal Express and postage charges, and telecopy/fax charges" "are expressly disallowed as costs unless expressly permitted by law"].) On the other hand, overnight messenger fees may be recoverable if reasonable and necessary. (Foothill-De Anza Community College Dist. v. Emerich, supra, 158 Cal. App. 4th 11, 30.)
(14) In response to contractor's objection, plaintiffs argued in their opening brief, as they did in their reply memo, that "many" of the challenged items are recoverable and that these expenses were "necessarily incurred to comply with various pretrial orders, such as the cost of placing copies of documents, photos, and videos into a document depository. Costs incurred to comply with a court order can be recovered under CCP § 1033.5(c)(4). See, e.g., Gibson v. Bobroff, 49 Cal.App.4th [1202] [57 Cal. Rptr. 2d 235] (1996) (mediation fees); Winston Square Homeowners Association v. Centex West, Inc., 213 Cal. App. 3d 282 [261 Cal. Rptr. 605] (1989) (special master fees); Gardiana v. Small Claims Court, 59 Cal. App. 3d 412, 421-22 [130 Cal. Rptr. 675] (1975) (interpreter fees)." As we will soon explain, plaintiffs are seeking a discretionary award of these costs.
We asked plaintiffs essentially to quantify how many of these challenged items they seek to recover. By supplemental letter brief, they have directed us to a supplemental second declaration by Hansen in support of plaintiffs' motion for attorney fees and costs, which stated: "To clarify, $2,079.62 of the challenged cost items are for `photocopy' charges that were incurred to comply with the court's Pretrial Orders requiring that copies of documents [were] to be placed into a depository." The letter brief further explains, "Recovery of the remainder of the photocopy, postage, fax, and Federal Express charges and the like are sought to be recovered only under the `tort of another' doctrine."[18]
It helps to have a number like $2,079.62 to work with. Unfortunately, the declaration did not explain how Hansen calculated this number or how it relates to costs listed in plaintiffs' cost memo. An "Item 13(a)" attachment to the cost memo provided two lists of charges, entitled "Reproduction of documents/plans/photos to depository per PTO" and "Reproduction of docs. placed into depository by other parties/experts per PTO." The total of these lists, which they sought to recover, is $10,114.57, which is why we asked plaintiffs if they were seeking that amount or another amount. It is not clear *76 what parts of that total plaintiffs are now disavowing, or whether they consider some of those amounts on these lists not to include photocopy charges.[19]
The subdivision, (§ 1033.5, subd. (c)(4)), and two of the cases on which plaintiffs rely to recover these discretionary costs were discussed and distinguished in Baker-Hoey, supra, 111 Cal. App. 4th 592, a case cited by neither side, where a party challenged the denial of recovery of the fees of a discovery referee. The following thorough discussion is directly relevant to plaintiffs' claims for the costs of document reproduction pursuant to court order. "The parties each cite Winston Square Homeowner's Assn. v. Centex West, Inc., supra, 213 Cal. App. 3d 282. In that case, the trial court appointed a special master to control discovery and conduct settlement conferences. The prevailing party sought to recover the special master fees as costs under section 1033.5, subdivision (c)(4). That subdivision provides: `Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.'
"The Winston court said: `A special master having been appointed by the court, his or her fee is analogous to the award of "[f]ees of expert witnesses ordered by the court." (§ 1033.5, subd. (a)(8); [citation].) The expense of court-appointed experts is first apportioned and charged to the parties, and then the prevailing party's share is allowed as an item of costs. [Citation.] [¶] The trial court acted well within the broad discretion granted to it by section 1033.5, subdivision (c)(4), when it allowed the special master fees as an item of costs.' (Winston Square Homeowner's Assn. v. Centex West, Inc., supra, 213 Cal. App. 3d 282, 293.)" (Baker-Hoey, supra, 111 Cal.App.4th at pp. 602-603.)
Baker-Hoey continued on pages 603-604: "In addition to Winston, Lockheed Martin relied on Gibson v. Bobroff[, supra,] 49 Cal. App. 4th 1202 . . . and Applegate v. St. Francis Lutheran Church (1994) 23 Cal. App. 4th 361 [28 Cal. Rptr. 2d 436]. [¶] In Gibson, the court relied on section 1033.5, subdivision (c)(4) to hold that an award of mediation expenses as costs was *77 not an abuse of discretion. (Gibson v. Bobroff, supra, 49 Cal. App. 4th 1202, 1207-1210.) The court found that certain policy goals were furthered by such an award, and that the award of mediation expenses was reasonably necessary to the conduct of the litigation." (Baker-Hoey, supra, 111 Cal.App.4th at pp. 603-604.)
Baker-Hoey rejected claims that the costs of the discovery referee were recoverable as a matter of right under sections 1032 and 1033.5, subdivision (a), as they were neither expert witness fees ordered by the court, motion fees, nor deposition fees. (Baker-Hoey, supra, 111 Cal.App.4th at p. 604.)
(15) The court continued: "However, as the foregoing cases hold, the fees of a special master can properly be awarded as costs under the broad discretion given to the trial court under section 1033.5, subdivision (c)(4). (Winston Square Homeowner's Assn. v. Centex West, Inc., supra, 213 Cal. App. 3d 282, 293.) In such a case, the costs must be `reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation' and must be `reasonable in amount.' (§ 1033.5, subd. (c)(2) & (3).) While we agree with Lockheed Martin that the payment of the fees was, in view of the court's reference order, necessary to the conduct of the litigation, that does not end the matter.
"The real issue is whether the trial court abused its discretion in allocating such fees in accordance with the original reference order instead of allowing Lockheed Martin to recover its share of such fees as costs.
"We cannot find an abuse of discretion. As Winston notes, the trial court's discretion is broad." (Baker-Hoey, supra, 111 Cal.App.4th at pp. 604-605.) The appellate court reasoned that the trial court was well situated to determine whether the referee's fees to attend depositions were reasonably necessary. "The trial court may have found that the discovery referee's fees should be divided equally because they were not reasonably necessary to the conduct of the depositions, or because the parties were equally responsible for the conditions which led to the need for such close supervision of the deposition process. Or, as the trial court indicated at the beginning of its discussion, it may have applied an overriding reasonableness standard on a case-by-case and cost-by-cost basis under section 1033.5, subdivision (c)(3).
"The determination of reasonableness is peculiarly within the trial court's discretion. [Citation.] `Whether a cost is "reasonably necessary to the conduct of the litigation" is a question of fact for the trial court, whose decision will be reviewed for abuse of discretion. [Citations.]' (Gibson v. Bobroff, supra, 49 Cal. App. 4th 1202, 1209.)" (Baker-Hoey, supra, 111 Cal.App.4th at p. 605.)
In the trial court, when contractor objected that section 1033.5, subdivision (b)(3) precluded recovery of total costs of $54,886.27 identified *78 in the Gorman firm's billings as for photocopying, postage, faxing, and Federal Express, plaintiffs replied that $2,079.62 of that total was for photocopy charges incurred to comply with the court's pretrial orders providing for a document depository. Plaintiffs did not explain how this lesser amount related to the claim in their cost memo for a total of $10,114.57 in costs attributed to reproduction of depository documents per pretrial orders. In the trial court, plaintiffs acknowledged that awarding $2,079.62 was discretionary under section 1033.5, subdivision (c)(4).[20] In other words, plaintiffs virtually conceded that the remaining $52,806.65 was not recoverable as statutory costs.
As in Baker-Hoey, the real issue on appeal here is whether the trial court abused its discretion under section 1033.5, subdivision (c)(4) by denying plaintiffs' requests for photocopying expenses of $2,079.62 or the greater amount of $10,114.57, assuming it so ruled. Plaintiffs have cited cases that would have upheld such an award as within the trial court's discretion, but not cases requiring the trial court to exercise its discretion in their favor.
(2) Nonstatutory Costs
(A) The Tort of Another
While virtually conceding that $52,806.65 of their costs for photocopying, postage, faxing, and Federal Express are not recoverable as statutory costs, plaintiffs seek to recover them (presumably as well as all their other nonstatutory costs) as damages under the tort of another doctrine. The Restatement Second of Torts provides in section 914: "(1) The damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of the litigation. [¶] (2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action."
(16) California has adopted this exception to the general American rule that parties bear their own attorney fees and costs in tort actions. (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal. 2d 618, 620 [30 Cal. Rptr. 821, 381 P.2d 645] (Prentice); Gray v. Don Miller & Associates, Inc. (1984) 35 Cal. 3d 498, 505, 507-508 [198 Cal. Rptr. 551, 674 P.2d 253].) As stated in Prentice, "A person who through the tort of another has been required to act *79 in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice, supra, 59 Cal.2d at p. 620.) "In the usual case, the attorney's fees will have been incurred in connection with a prior action; but there is no reason why recovery of such fees should be denied simply because the two causes (the one against the third person and the one against the party whose breach of duty made it necessary for the plaintiff to sue the third person) are tried in the same court at the same time." (Id. at p. 621.)
Plaintiffs advanced this theory in their motion to justify recovering all their attorney fees and costs involved in litigating with the subcontractors. Contractor responded that the theory did not apply. Plaintiffs persisted in their reply memo in the trial court. Their opening brief does not appear to have renewed this contention. It was not stated as an argument under a separate heading as required by California Rules of Court, rule 8.204(a)(1)(B), but merely in a footnote and another passage reciting the procedural history. Not surprisingly, as plaintiffs' reply brief observed, contractor's "brief does not address the `tort of another' doctrine." Plaintiffs have belatedly argued in their reply brief and their supplemental letter brief that the doctrine could justify their recovery of fees and costs involved in litigating with subcontractors. Contractor has responded to this argument in its supplemental letter brief.
As noted above (see ante, fn. 11), a party seeking to recover attorney fees and costs as tort damages ordinarily should plead and prove them to the fact finder, and not in a posttrial or postsettlement cost memo. The California Supreme Court has stated in Hsu v. Abbara, supra, 9 Cal. 4th 863, in footnote 4 on page 869: "Unless the parties stipulate otherwise, a claim for attorney fees under the `tort of another' doctrine may not be asserted by post-trial motion but rather must be pleaded and proved to the trier of fact. (Brandt v. Superior Court (1985) 37 Cal. 3d 813, 819 [210 Cal. Rptr. 211, 693 P.2d 796]; Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal. App. 4th 34, 56 [6 Cal. Rptr. 2d 602].)"
Contractor has not asserted this procedural bar and has not questioned whether plaintiffs' 50-page second amended complaint contained any allegation that contractor's negligence has caused plaintiffs to incur attorney fees and costs in litigation with third parties such as subcontractors. In the trial court, contractor asserted a failure of proof, pointing to plaintiffs' failure to offer evidence either that contractor or its subcontractors were negligent or that any negligence by contractor caused plaintiffs to sue subcontractors "to protect their interest as a result of the breach." While contractor did agree to pay plaintiffs money in a settlement, the settlement also provides that it "does *80 not include or constitute an admission of any fact, or of liability or fault by any Party regarding any fact, claim, allegation, issue of law or violation of law. . . . This agreement may not be used as evidence of any wrongdoing, misconduct or liability by any Party or anyone else." The fact of contractor's settlement cannot be used as an admission of its negligence.
In the trial court, plaintiffs claimed that they proved the negligence of contractor and the subcontractors through the declarations of their experts. For example, John Holland, a principal of J. Holland Corporation and the Naftzger-Holland Group Inc., declared that he had been involved in destructive testing at the residence and he had discovered "multiple leaks resulting in extensive water damage; toxic mold; major structural and seismic deficiencies; excessive stucco cracking and installation problems; inadequate, inoperable, and in some cases nonexistent HVAC and plumbing systems; uneven and improperly installed floors and floor bowing; roofing and roof ventilation [sic]; misframed and out of plumb walls and rooms; damaged windows, damaged window frames, and improperly installed windows; the presence of standing water in the house's crawl space; missing insulation and sealing of penetrations; and overall shoddy workmanship. . . . In my professional opinion, Tassajara, as the general contractor, was responsible for the project as a whole and has or shares responsibility for the myriad of problems that exist."
(17) If the trial court accepted this declaration (and similar ones) as expert testimony, it provided evidence of negligent workmanship by contractor and its subcontractors. It did not prove or attempt to prove that contractor's negligence caused plaintiffs to litigate with the negligent subcontractors. Moreover, we see no attempt by plaintiffs to segregate their costs of litigating with subcontractors from their costs of litigating with contractor. The tort of another doctrine does not allow a party to recover the fees and costs involved in litigating directly with a negligent defendant. (Pederson v. Kennedy (1982) 128 Cal. App. 3d 976, 980 [180 Cal. Rptr. 740].)
(18) The biggest problem with this claim, however, as contractor asserts in its supplemental letter brief, is that the tort of another doctrine does not apply to the situation where a plaintiff has been damaged by the joint negligence of codefendants. Vacco Industries, Inc. v. Van Den Berg, supra, 5 Cal. App. 4th 34 stated at page 57: "The rule of Prentice was not intended to apply to one of several joint tortfeasors in order to justify additional attorney fee damages. If that were the rule there is no reason why it could not be applied in every multiple tortfeasor case with the plaintiff simply choosing the one with the deepest pocket as the `Prentice target.' Such a result would be a total emasculation of Code of Civil Procedure section 1021 in tort cases."
*81 We will assume for the sake of discussion that the initial contract entered by the parties or their settlement agreement authorized plaintiffs to plead and prove in a postsettlement motion that they were damaged as a result of contractor's negligence by incurring attorney fees and costs involved in litigating with subcontractors in this action.[21] Setting aside this procedural question, plaintiffs have made no attempt to prove what costs or fees were involved in litigating with subcontractors, as opposed to litigating with contractor. More importantly, to the extent they have supplied evidence of negligence, they have established that they were damaged by the combined negligence of contractor and its subcontractors. We see no evidence that plaintiffs named subcontractors as defendants in this action as a result of contractor's negligence, as opposed to subcontractors' own negligence. Even assuming that the parties have stipulated to litigate tort of another damages by way of a postsettlement motion, that doctrine does not reach so far as to allow plaintiffs to pick and choose which one of several joint tortfeasors should absorb the costs of the plaintiffs litigating with the other tortfeasors. We conclude that the tort of another theory does not apply to justify plaintiffs' recovery of costs as damages under these circumstances.
(B) "Stearman Costs"
Regarding the costs aspect of the trial court's award, the biggest number in dispute is plaintiffs' claim in an "Item 13(b) Attachment" to their cost memo of $165,683.09 for what the parties have chosen to characterize as "`Stearman['] costs." This item alone exceeds the costs awarded by $23,250.63.
The settlement agreement provided in part: "Tassajara agrees that Plaintiffs shall be permitted to recover as `costs' under this provision their expert, consultant, and other fees and costs that qualify as `Stearman' costs under the authority of Stearman v. Centex Homes, [supra,] 78 Cal. App. 4th 611 ..., in an amount to be determined by the court, and Tassajara agrees that it will not assert that Plaintiffs' `Stearman' costs were or should have been included as a portion of the Initial Payment."
(i) Reviewing the Stearman Decision
We review the opinion in Stearman v. Centex Homes, supra, 78 Cal. App. 4th 611 (Stearman) to better understand the parties' agreement. In that case, after a jury trial, the plaintiffs recovered in strict liability for the defective *82 construction of their residence against the defendant builder of mass-produced housing. On appeal, the plaintiffs contended "the trial court erred in denying them recovery of the costs and fees they incurred in employing `geotechnical and structural experts to obtain and analyze soils samples and perform the necessary design calculations' to enable plaintiffs to determine `an appropriate repair methodology to correct the defect.' They argue, `These "investigative" costs were completely distinct from the "litigation" costs due these experts,' and were properly recoverable as part of the cost of repair." (Stearman, supra, 78 Cal.App.4th at p. 623.) The experts in that case had differentiated their billings between investigation and litigation and the defendant did not dispute their calculations. (Ibid.)
As we have already explained (see ante, at p. 74), section 1033.5 precludes recovery of the fees of experts not ordered by the court. As the experts in Stearman were not ordered by the court, the appellate court concluded that their fees were not recoverable as costs under section 1033.5, subdivision (a)(8). (Stearman, supra, 78 Cal.App.4th at pp. 623-624.) The opinion continued, "Having eliminated any potential consideration of the expert witness fees as costs, plaintiffs contend they are entitled to recover the fees as damages." (Id. at p. 624, italics added.) The defendant in Stearman conceded that "the cost of repair is the proper measure of damages in a construction defect case." (Ibid.) The appellate court agreed that these expert fees were recoverable as damages under "Civil Code section 3333[, which] provides, `For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.'" (Id. at pp. 624-625; cf. El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal. App. 4th 1337, 1362 [64 Cal. Rptr. 3d 524].)
"The record is clear the court denied plaintiffs' motion, not because it doubted the credibility of the expert witnesses, but because it believed the law did not allow it to require defendant to pay the expert fees, even if they were incurred solely in relation to the costs of repair. The court was wrong. Plaintiffs were entitled to be made whole." (Stearman, supra, 78 Cal.App.4th at p. 625.) The appellate court found uncontradicted the testimony that the "plaintiffs were billed $37,500 by professionals who investigated the problems in order to formulate an appropriate repair plan ..." and it ordered the court to include that amount in the judgment. (Ibid.)
(19) We understand Stearman as extending established law. "[T]he general measure of damages where injury to property is capable of being repaired is the reasonable cost of repair together with the value of lost use during the period of injury." (Erlich v. Menezes (1999) 21 Cal. 4th 543, 555 [87 *83 Cal.Rptr.2d 886, 981 P.2d 978].) The cost of repair may include the cost of future repairs. (Rovetti v. City and County of San Francisco (1982) 131 Cal. App. 3d 973, 980 [183 Cal. Rptr. 1].) But "repair costs are allowed only if they are reasonable ...." (Orndorff v. Christiana Community Builders (1990) 217 Cal. App. 3d 683, 690 [266 Cal. Rptr. 193].) "The rule is established that the plaintiff has the burden of proving, with reasonable certainty, the damages actually sustained by him as a result of the defendant's wrongful act, and the extent of such damages must be proved as a fact." (Chaparkas v. Webb (1960) 178 Cal. App. 2d 257, 259 [2 Cal. Rptr. 879]; cf. Harris v. Los Angeles Transit Lines (1952) 111 Cal. App. 2d 593, 598 [245 P.2d 35] ["In personal injury actions, plaintiff may recover only for the necessary and reasonable expenditures attributable to the injury."].)
(20) Thus, just as the tort of another doctrine allows a party to recover as tort damages the attorney fees and costs involved in litigating with third parties as a result of the defendant's negligence, so Stearman authorizes the recovery of expert fees involved in repairing damaged property as tort damages, not costs, resulting from defective construction. We assume the parties in this case agreed to call these damages "`Stearman' costs" for convenience, and we discuss them as nonstatutory costs.[22]
We note that the plaintiffs in Stearman only sought their experts' "investigative" costs, not their "litigation" costs. That case contains no explanation for this distinction and provides no guidelines for distinguishing one from the other. We assume that this limitation arises from the general rule that the expenses of litigation are ordinarily not considered tort damages.[23]
(ii) Applying the Stearman Decision
Presumably because the distinction was made in Stearman, the experts in this case have likewise attempted to differentiate their costs of investigating *84 defects and formulating repair plans from preparing for litigation. In their supplemental letter brief, "[p]laintiffs recognize that time spent by experts such as John Holland and the Naftzger-Holland Group drafting actual expert reports, preparing for and attending depositions, assisting plaintiffs' counsel in formulating discovery, attending mediations, working on declarations, etc. are not a type of Stearman cost." They claim "[a]ll such time was separated out and has not been included in any request for reimbursement."
The attachment to plaintiffs' cost memo identified the following components of their total claim of $165,683.09 for "`Stearman' costs": $94,833.19 for plaintiffs' lead construction experts, John Holland and Jim Naftzger; $22,370.81[24] for Martin Morgan, a professional home inspector and the owner of All Bay Home Inspection, Inc., and All Bay Development Corporation; $22,094.21 for Richard Holm, a licensed structural engineer employed by Cecil H. Wells Jr. & Associates; $4,145.62 for Ed Brady, a licensed mechanical engineer who investigated HVAC (heating, ventilating, and air-conditioning) and water system problems; $3,217.50 for Kregg Karpowich, owner of Menlo-Atherton Plumbing; and $1,880.35 for Mark Hunter, who investigated plumbing and water system problems. Also included in the total was another $17,141.41, explained in the initial Hansen declaration as billed by a dozen other individuals and entities.
The claim for "`Stearman' costs" was supported by declarations by John Holland, Martin Morgan, Richard Holm, Ed Brady, Kregg Karpowich, Mark Hunter, and Attorney Hansen. In their declarations, Holland, Morgan, Holm, Brady, Karpowich, and Hunter each described what part of their total billings to plaintiffs represented their initial and ongoing investigation of construction problems and their formulating and revising possible repair plans. For example, the total billings of the J. Holland Corporation and the Naftzger-Holland Group Inc. were $114,545.69. John Holland declared that "the amount attributable to investigation and analysis of the defects in plaintiffs' residence, formulating and revising repair plans and costs, and performing ongoing investigative work is $94,833.19." To compute this total, Holland went through the billings and indicated what work related partly or completely to "litigation preparation...."
*85 Because the Gorman firm billings included virtually all of these experts' charges, including preparing for litigation,[25] we asked plaintiffs if they are seeking as "`Stearman' costs" more than the $165,683.09 claimed in their cost memo. Their supplemental letter brief has clarified that they are only seeking the total stated in the cost memo.
(a) Inclusion of Homeowners' Repair Costs
We now proceed to contractor's objections to these expert fees. The first contention is that large portions of some of these fees actually amounted to the cost of homeowners' repairs, for which plaintiffs were compensated by the initial payment of the settlement. For example, in answer to an interrogatory, plaintiffs prepared a list of "`Homeowner Repair Costs" as damages totaling $155,507.21 that included 10 bills from All Bay Development totaling $59,822.07. Four of these invoices, dated February 23 and 28, May 28, and June 20, 2004, were also included as "`Stearman' costs." A declaration by Martin Morgan, the owner of All Bay Development, explained that almost all of these four invoices, $22,370.81 out of a total of $25,610.25, reflected investigation and testing.[26]
As Hansen's second declaration (though not plaintiffs' briefs on appeal) pointed out, contractor has waived this contention in the settlement agreement. That agreement, not surprisingly, did not attempt to correlate defendants' initial payment of $2,430,000 with any particular damages claimed by plaintiffs during the litigation, but it does authorize plaintiffs to recover by way of motion their "`Stearman' costs" "in an amount to be determined by the court" and it further provides that contractor "agrees that it will not assert that Plaintiffs' `Stearman' costs were or should have been included as a portion of the Initial Payment." In other words, the settling parties clearly contemplated that the initial payment was not intended to cover plaintiffs' claims for "`Stearman' costs," but instead preserved those claims for litigation and judicial resolution upon an appropriate motion and proof. That plaintiffs may have initially claimed as damages what they later called *86 "`Stearman' costs" does not prove that their claims were covered by the initial payment of the settlement. In any event, contractor has waived this contention.
(b) Cutoff Dates for Planning Repairs
Contractor's second objection is that after an expert has submitted a "final repair plan," any subsequent work cannot be attributed to formulating a repair plan. Contractor relies on Hansen's initial declaration, which stated: "Plaintiffs' lead construction experts, John Holland and Jim Naftzger (working with other of plaintiffs' experts) generated a formal repair plan on August 2, 2005" with an estimated cost of repairs of over $2 million. John Holland declared that he was deposed for five days beginning on August 16, 2005, and Jim Naftzger was deposed for four days beginning on August 8, 2005. They began preparing for their depositions on August 4, 2005, and almost all the work done by their companies prior to that date (except for a defense walkthrough on Sept. 10, 2004) was related to investigation of defects and possible repair options and preparation of a repair plan. Contractor calculated that, as of that date, Holland and Naftzger had billed only $37,323.25 of their ultimate investigative charges of $94,833.19 for formulating a repair plan.[27]
Likewise, at his deposition on December 6, 2005, Richard Holm stated that he had generated a list of structural defects on August 16, 2004. Contractor calculated that, by that date, Holm had billed plaintiffs $7,136.53 of his ultimate investigative charges of $22,094.21.
Plaintiffs respond that the formulation of repair plans by their experts was ongoing until the parties settled the case on May 15, 2006. A second declaration by Hansen stated that contractor "was well aware that additional investigation had been done (and that additional expert investigation expenses had been incurred) when it entered the settlement agreement." This argument is supported by the billings of the experts. For example, an invoice from the Naftzger-Holland Group Inc. dated March 13, 2006, reflects that an associate consultant was involved in formulating an estimate of repairs on February 23, *87 24, and 28, 2006, and that an estimate of repairs was completed on March 2, 2006. It stands to reason that, in the course of litigation over defective construction, an expert would prepare a preliminary estimate of needed repairs and would continue to refine and update that estimate as the litigation proceeded through repeated attempts at mediation and settlement.
(c) Evidentiary Support for Plaintiffs' Claims
Contractor's third objection, targeting plaintiffs' claim for miscellaneous "`Stearman' costs" of $17,141.41, is the lack of evidentiary support by declarations. Plaintiffs have responded that these amounts were all accounted for by two paragraphs in Attorney Hansen's initial declaration and attached supporting exhibits. Hansen's declaration described exhibit G as a compilation of "[c]opies of bills for investigative work by experts and consultants that are listed on the [Gorman firm's] billing statement but not attached to the declaration of other declarants ...."
(21) Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. (1968) 69 Cal. 2d 33 [69 Cal. Rptr. 561, 442 P.2d 641] set out applicable rules. "Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or that the charges were reasonable. [Citations.] If, however, a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony [citations], and if the charges were paid, the testimony and documents are evidence that the charges were reasonable. [Citations.]" (Id. at pp. 42-43.)
None of the bills in exhibit G is referenced in the two declarations of John Gorman or the declaration of Jennifer Cheng, other than by a general statement that they have incurred $1,729,391.35 in attorney fees and costs "including expert and consultant expenses for investigation of problems with our residence."[28] Hansen specifically declared that the bills represented investigative work by experts and consultants.
Of this $17,141.41, perhaps the largest single component is billings by Forensic Analytical (each included on the Gorman firm's billings) totaling $4,360.86, including $650 on February 16, 2005, $1,530 on February 28, 2005, $203.06 on June 22, 2005, $75 on August 31, 2005, and $1,902.80 on May 30, 2006. Hansen's declaration attributed all these amounts to "mold testing and analysis," but almost all the charges in the final bill of $1,902.80 are itemized as being for Peter Kaminski reviewing the file, preparing for his *88 deposition, and traveling to his deposition. Thus, Hansen's statement under penalty of perjury is incorrect,[29] as is plaintiffs' claim that they have separated out all expert time spent preparing for litigation.
(3) Reviewing the Cost Award
We have reviewed in detail plaintiffs' claims for statutory and nonstatutory costs as authorized by the settlement agreement in this case and contractor's objections to their claims. Plaintiffs' motion sought a total cost award of $343,516.72, which included $266,561.96 itemized in a memorandum of costs that listed "`Stearman' costs" of $165,683.09.
We have found no explanation of what costs make up the $76,954.76 difference between the cost memo and the total requested, but it appears that a major part of that represents their costs of photocopying, postage, faxing, and Federal Express.[30] It is our understanding that plaintiffs seek all costs not itemized in the cost memo as tort of another damages. Having rejected the application of that doctrine to the facts of this case, we are left with plaintiffs' cost memo claim for $266,561.96, which represents the total of five different categories of costs.
Contractor has offered no objection to three of those categories, namely the amounts of $1,556.20 for filing and motion fees, $150 for jury fees, and $3,888.04 for service of process. As to plaintiffs' claims in the fourth category of deposition costs, out of a total request for $68,288.36, contractor has objected to expert deposition fees of $3,414.06 and attorney travel expenses of $576.65. We have concluded above that $420.45 of these travel expenses appears to be recoverable under section 1033.5, subdivision (a)(3), while the remaining objections are well taken.
In the "other" category of the cost memo, plaintiffs requested total costs of $192,679.36, which included the claim for "`Stearman' costs," as well as document reproduction costs of $10,114.57, special master fees of $15,694.54, mediation fees of $987.16, and a document depository fee of $200. Contractor did not object to a discretionary cost award of these other costs totaling $16,881.70, apart from the photocopying costs and parts of the "`Stearman' costs."
*89 As to the "`Stearman' costs," plaintiffs did not dispute the charges of $1,880.35 for Mark Hunter or $3,217.50 for Kregg Karpowich. Even with their objections, they agreed that plaintiffs were entitled to recover $37,323.35 for John Holland and Jim Naftzger and $7,136.53 for Richard Holm. Thus, contractor has made no objections to a "`Stearman' costs" award of $49,557.73 out of the $165,683.09 requested.
Contractor asked for sizable reductions in the fees of Holland and Naftzger ($94,833.19) and Holm ($22,094.21) on the basis that their repair plans were finalized at an early stage of the litigation. We have questioned the logic and evidentiary support for this objection. Contractor objected to almost all the fees of Martin Morgan for $22,370.81 and Ed Brady for $4,145.62 as already included in homeowners' repairs. We have concluded above that contractor waived this argument in the settlement agreement.
If the trial court had sustained every one of contractor's objections to the costs sought in the cost memo, even those we find invalid, it would have awarded $136,345.32. The difference between this amount and the amount awarded, $142,432.46, is $6,087.14. Thus, the trial court must have overruled at least some of contractor's objections. There is no indication in the record of what objections, if any, the trial court considered meritorious. Assuming that the trial court recognized the invalidity of the objection to $420.45 of the travel expenses, the award would have been $136,765.77, or $5,666.69 less than the actual award. Assuming the trial court recognized that contractor had waived its main objection to the fees of Morgan and Brady, the award would have been $163,282.20, or $20,849.74 more than the actual award. It is also conceivable that the trial court realized that, despite the lack of objection to them, the special master fees of $15,694.54, the mediation fees of $987.16, and the document depository fee of $200 were as discretionary as the document reproduction costs, which were initially totaled to be $10,114.57, later reduced to $2,079.62. Including a discretionary award of either $10,114.57 or $2,079.62 does not explain the difference between the unchallenged costs and the court's award.
We could prolong this opinion by adding and subtracting other numbers, but we believe our point is made. Despite long study of the motion and opposition, we have been unable to find a combination of numbers adding up to the precise cost award of $142,432.46. Since we are reversing the judgment on another ground, the trial court will have another opportunity to redetermine the cost award consistent with our above observations regarding the contentions of the parties.
*90 B. The Claim for Attorney Fees
We repeat, the settlement agreement provided in part: "In addition to the Initial Consideration set forth above, Tassajara and its insurers shall pay to Plaintiffs such amount as the court determines to be reasonable attorneys' fees and costs (including reasonable expert and consultant fees) as may be allowed pursuant to the Construction Contract or as otherwise permitted by law (`Second Payment'). Notwithstanding that this is a settlement and that the matter has not proceeded to final judgment, it is agreed that Plaintiffs shall be deemed to be the `prevailing parties' in the Action solely for the purpose of invoking plaintiffs' rights to recover attorneys' fees and costs pursuant to the terms of the Construction Contract and that plaintiffs are entitled to recover costs as authorized by law as if they were prevailing parties in the Action. Plaintiffs' claims for attorneys fees and costs under this provision shall extend up to but no later than the date that this Agreement becomes binding based upon plaintiffs' receipt of a copy of this Agreement that has been fully and validly executed by all Settling Parties. In addition, it is agreed that Plaintiffs shall be permitted to seek recovery of any and all reasonable attorneys' fees and costs related to judicial determination of the amount of fees and costs that they are entitled to recover."
Plaintiffs contend on appeal that the trial court's award of attorney fees of $416,581.37 is entirely inadequate.
(1) The Amount of Attorney Fees Sought
It will help to identify what amount plaintiffs are requesting for attorney fees. In the trial court, plaintiffs sought $1,350,538.83 for all attorney fees, including both fees arising prior to the settlement and the fees involved in bringing the motion for fees. Their original motion requested presettlement fees of $1,341,337.83, but this request was reduced by $65,000 to $1,276,337.83 after contractor's opposition pointed out an overstated billing item.[31] Plaintiffs also asked for fees of $43,337.50 for filing their initial motion for attorney fees and later requested another $30,827.50 for filing a reply to contractor's opposition. Of these motion fees, $2,208 represented work by the Bowman firm and the balance of $71,990 was for the Gorman firm's work.
Of the presettlement fees, $1,095,202.75 was charged by the Gorman firm. Contractor has calculated that those fees include $664,094.50 for 1,780 hours *91 of Gorman's time, at rates of $350 per hour in 2004, $375 per hour in 2005, and $400 per hour in 2006. The other presettlement fees sought by the Gorman firm were mostly for hours spent by associate Craig Hansen, whose rates increased from $250 per hour in 2004 to $260 per hour in 2005 and $280 per hour in 2006. Some paralegal work is also included in the total.
The other non-Gorman-firm presettlement fees sought, a total of $181,135.08, include $2,762.50 charged by Bruce Janke, $7,040.58 charged by Semha Alwaya,[32] and $171,332 charged by the Bowman firm. The attorneys at the Bowman firm who billed plaintiffs were Daniel Smith, who charged $250 an hour, and two associates, who charged $200 an hour. A declaration by Smith included the claim that their rates are reasonable for the kind of work they did within the Santa Clara County legal community. In a second declaration, Smith explained that his construction practice is primarily defense work, which charges lower rates than do plaintiffs' counsel. A supplemental declaration by Hansen explained that he used to work at the Bowman firm, and they primarily do defense work for large corporations and insurance companies who negotiate rates for handling cases in bulk. The Gorman firm's rates are what they usually charge other clients. The Gorman firm had handled a number of construction cases at those rates.
(2) Scope of the Trial Court's Discretion in Awarding Attorney Fees
We have already quoted above (see ante, pt. III.A.(3)) in some detail California Supreme Court authority pertaining to awarding attorney fees. We have also concluded that trial courts are not obliged in every case to expressly acknowledge the lodestar amount or to specifically itemize those fee claims they find to be unnecessary or unreasonable.
(22) EnPalm, LLC v. Teitler (2008) 162 Cal. App. 4th 770 [75 Cal. Rptr. 3d 902] provides a focused summary of the law on page 774. "Except as provided for by statute, compensation for attorney fees is left to the agreement of the parties. (Code Civ. Proc., § 1021.) (23) Civil Code section *92 1717 (section 1717) provides that reasonable attorney fees authorized by contract shall be awarded to the prevailing party as `fixed by the court.' The trial court has broad discretion to determine the amount of a reasonable fee, and the award of such fees is governed by equitable principles. (PLCM Group, Inc. v. Drexler[, supra,] 22 Cal. 4th 1084, 1094-1095 ... (PLCM).) The first step involves the lodestar figurea calculation based on the number of hours reasonably expended multiplied by the lawyer's hourly rate. `The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.' (Id. at p. 1095.) In short, after determining the lodestar amount, the court shall then `"consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure."' (Id. at pp. 1095-1096, quoting Sternwest Corp. v. Ash (1986) 183 Cal. App. 3d 74, 77 [227 Cal. Rptr. 804] ....) The factors to be considered include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (PCLM, at p. 1096.) The `necessity for and the nature of the litigation' are also factors to consider. (Kanner v. Globe Bottling Co. (1969) 273 Cal. App. 2d 559, 569 [78 Cal. Rptr. 25] [appellate court affirmed award of fees reduced by trial court].) We will reverse a fee award only if there has been a manifest abuse of discretion. (PLCM, supra, at p. 1095.)"
(24) Some courts have approved including paralegal fees as attorney fees. (Cf. Guinn v. Dotson (1994) 23 Cal. App. 4th 262, 268 [28 Cal. Rptr. 2d 409]; see Sundance v. Municipal Court (1987) 192 Cal. App. 3d 268, 274 [237 Cal. Rptr. 269].)
"At the same time, discretion must not be exercised whimsically, and reversal is appropriate where there is no reasonable basis for the ruling or the trial court has applied `the wrong test' or standard in reaching its result." (Nichols v. City of Taft (2007) 155 Cal. App. 4th 1233, 1239 [66 Cal. Rptr. 3d 680].) In Press v. Lucky Stores, Inc., supra, 34 Cal. 3d 311, the California Supreme Court found "a palpable abuse of discretion" in a trial court's attorney fees calculation. (Id. at p. 324.) The trial court began with the proposed lodestar amount and multiplied it by the requested 1.5 enhancement, but then divided that total by 185, because the success of the lawsuit had generated 3,000 signatures out of the 556,000 needed to qualify an initiative for the ballot. (Id. at p. 323.) The Supreme Court concluded there was "no reasonable connection between the lodestar figure and the fee ultimately awarded...." (Id. at p. 324.)
*93 (3) An Attorney's Ability to Recover Fees for Representing Himself
Of the total of $1,350,538.83 fees sought in this case, $1,167,192.75, about 86 percent, is sought by the Gorman firm. Of that subtotal, $664,094.50, about 57 percent, represents the legal work of plaintiff John Gorman, while the balance was for work done by associate Craig Hansen and paralegals. Whether Gorman and his wife are entitled to recover attorney fees for legal work by his law firm is a major issue in this case.
(25) It is settled that Gorman, the client, would not be able to recover contractual attorney fees had he been represented by Gorman, a sole practitioner. In Trope v. Katz (1995) 11 Cal. 4th 274 [45 Cal. Rptr. 2d 241, 902 P.2d 259] (Trope), the California Supreme Court considered "whether an attorney who chooses to litigate in propria persona rather than retain another attorney to represent him in an action to enforce a contract containing an attorney fee provision can nevertheless recover `reasonable attorney's fees' under Civil Code section 1717 ... as compensation for the time and effort expended and the professional business opportunities lost as a result." (Id. at p. 277.) The court's answer was "no" for the following reasons. "[T]he usual and ordinary meaning of the words `attorney's fees,' both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. An attorney litigating in propria persona pays no such compensation." (Id. at p. 280.)[33]
Also, Civil Code section 1717 provides for recovery of fees "incurred" to enforce a contract. "[A]n attorney litigating in propria persona cannot be said to `incur' compensation for his time and his lost business opportunities." (Trope, supra, 11 Cal.4th at p. 280.) The outcome of that case was dictated by the Supreme Court's interpretation of the statute. (Id. at pp. 279, 284, 288.) The court pointed out it would frustrate the intent of the statute to reward attorney-litigants, but no other type of litigants, for representing themselves. The statute "was designed to establish mutuality of remedy ...." (Id. at p. 285.) "If an attorney who is the prevailing party in an action to enforce a contract with an attorney fee provision can recover compensation for the time he expends litigating his case in propria persona, but a nonattorney pro se litigant cannot do so regardless of the personal and economic value of such time simply because he has chosen to pursue a different occupation, every such contract would be oppressive and one-sided." (Id. at pp. 285-286.)
This rule does not extend so far as to preclude an attorney who represents himself from recovering fees that he paid another attorney whom he retained *94 to assist him in representing himself, though the retained attorney was not the attorney of record. (Mix v. Tumanjan Dev. Corp. (2002) 102 Cal. App. 4th 1318, 1324-1325 [126 Cal. Rptr. 2d 267].)
The application of Trope became an issue in PLCM, supra, 22 Cal. 4th 1084, where the trial court awarded an insurance administrator contractual attorney fees for the work of its in-house counsel. The California Supreme Court noted that Trope itself had expressly declined to consider its application to in-house counsel. (Id. at p. 1093.) The court in PLCM concluded that none of the operative considerations in Trope applied "in the case of in-house counsel. There is no problem of disparate treatment; in-house attorneys, like private counsel but unlike pro se litigants, do not represent their own personal interests and are not seeking remuneration simply for lost opportunity costs that could not be recouped by a nonlawyer. A corporation represented by in-house counsel is in an agency relationship, i.e., it has hired an attorney to provide professional legal services on its behalf. Nor is there any impediment to the effective and successful prosecution of meritorious claims because of possible ethical conflict or emotional investment in the outcome. The fact that in-house counsel is employed by the corporation does not alter the fact of representation by an independent third party. Instead, the payment of a salary to in-house attorneys is analogous to hiring a private firm on a retainer." (Ibid., fn. omitted.) "We discern no basis for discriminating between counsel working for a corporation in-house and private counsel engaged with respect to a specific matter or on retainer." (Id. at p. 1094.)
Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal. App. 4th 510 [37 Cal. Rptr. 3d 381] upheld an award of attorney fees on a special motion to strike to an attorney who was a named defendant for her work in the case. The appellate court determined that all the defendants had retained a special counsel who represented them on the successful motion to strike, while the attorney-defendant assisted with legal representation of other defendants who were her clients. (Id. at pp. 524-525.)
Witte v. Kaufman (2006) 141 Cal. App. 4th 1201 [46 Cal. Rptr. 3d 845] reversed an award of attorney fees to a law firm whose attorneys represented the firm in a successful special motion to strike. The court reasoned: "Here, unlike PLCM Group and Gilbert, but like Trope, there is no attorney-client relationship between KLA and its individual attorneys. The individual KLA attorneys are not comparable to in-house counsel for a corporation, hired solely for the purpose of representing the corporation. The attorneys of KLA are the law firm's product. When they represent the law firm, they are representing their own interests. As such, they are comparable to a sole practitioner representing himself or herself. Where, as in Gilbert, an attorney is sued in his or her individual capacity and he obtains representation from *95 other members of his or her law firm, those other members have no personal stake in the matter and may, in fact, charge for their work. Not so with a law firm that is sued in its own right and appears through various members." (Id. at p. 1211.)
Plaintiffs seek to distinguish Trope on several grounds. They assert that since the Gorman firm is incorporated, it is a separate legal entity from the individual John Gorman. John Gorman declared that he entered into written retainer agreements with "the law firms of Bowman & Brooke, LLP, Gorman & Miller, PC in connection with this action."
(26) We recognize that the law allows for professional law corporations. (Corp. Code, § 13400 et seq.; Bus. & Prof. Code, § 6160 et seq.) In our opinion, the rationale of Trope applies to a lawyer who is representing himself in litigation, whether or not that lawyer has chosen to incorporate. Though his corporation may send the bill, the same person is the attorney and the client. When the client is also the chief executive officer, chief financial officer, and president of the corporation, there is the same lack of a true attorney-client relationship as with the members of the law firm representing the firm in Witte v. Kaufman, supra, 141 Cal. App. 4th 1201.
Plaintiffs assert that there is an attorney-client relationship between the Gorman firm and Jennifer Cheng, Gorman's wife. She also declared that she entered into written retainer agreements with "the law firms of Bowman & Brooke, LLP, Gorman & Miller, PC in connection with this action."
We can certainly imagine cases in which a true attorney-client relationship exists between spouses. However, in this case, husband and wife sued for and obtained recovery for the defective construction of their residence. There is no indication that Cheng suffered any damages apart from those suffered by her husband. Their interests in this matter appear to be joint and indivisible. There is no claim that Gorman spent extra time in this case representing his wife in addition to the time he spent representing himself. There is no claim that each of them owes half his fees. Their community estate is liable for their contracts. (Fam. Code, § 910, subd. (a).) Since Gorman's billable hours appear to be entirely attributable to representing his common interests with Cheng, we conclude that the rule of Trope applies to this situation.
In the trial court, contractor objected to the recovery of any fees by the Gorman firm, whether billed by Gorman personally or his associate Hansen and paralegals. Contractor attempted to distinguish Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212 [104 Cal. Rptr. 2d 461] (Gilbert) on several grounds. On appeal, plaintiffs assert that Gilbert is dispositive regarding the fees billed by Hansen and paralegals.
*96 In Gilbert, the issue arose whether an attorney may recover reasonable attorney fees when he is represented by other members of his firm. The underlying case was a landlord-tenant dispute. The tenant complained that the landlord's attorney, Gernsbacher, had interfered with its recovery of the property. The attorney prevailed against this complaint, but the trial court denied his request for attorney fees. "The trial court found Gernsbacher was not entitled to attorney fees because he was represented by his own law firm, Gernsbacher & McGarrigle, APC, and did not present evidence he was `obligated to pay' the legal fees incurred on his behalf by the attorneys representing him in this matter." (Gilbert, supra, 87 Cal.App.4th at p. 217.)
(27) The appellate court in Gilbert found Trope distinguishable. "[A] member of a law firm who is represented by other attorneys in the firm `incurs' fees within the meaning of Civil Code section 1717. Either the represented attorney will experience a reduced draw from the partnership (or a reduced salary from the professional corporation) to account for the amount of time his or her partners or colleagues have specifically devoted to his or her representation, or absorb a share of the reduction in other income the firm experiences because of the time spent on the case. This is different from the `opportunity costs' the attorney loses while he or she is personally involved in the same case, because the economic detriment is caused not by the expenditure of his or her own time, but by other attorneys working on his or her behalf." (Gilbert, supra, 87 Cal.App.4th at p. 221.) "There can be no question an attorney-client relationship is also present where an attorney litigant is represented by other attorneys in his or her own firm." (Id. at p. 222.) Finally, there is no unfairness in allowing an attorney to recover for work done by others in his or her firm. "[L]ike a corporation represented by in-house counsel, the represented attorney seeks to recover fees for work done by others on his behalf. Indeed, it would be inequitable in the extreme to permit Gernsbacher to recover fees incurred by outside counsel, but deny him such recovery merely because his counsel are members of the same law firm as he." (Id. at p. 223.)
We do not understand contractor on appeal to renew its efforts to distinguish Gilbert. It argues only that "nothing in the Gilbert case supports the view that appellants in this case are entitled to recover fees for the work performed personally by appellant Gorman." We do not understand Gilbert to be limited to cases where the client is not the chief executive officer, chief financial officer, and president of the firm. We believe that Trope does not preclude the recovery of fees for other attorneys and paralegals hired by Gorman to represent him, even if they work in his law firm. (Gilbert, supra, 87 Cal. App. 4th 212; Mix v. Tumanjan Development Corp., supra, 102 Cal. App. 4th 1318, 1324-1325.)
*97 It appears that the court's award of $416,581.37 for attorney fees included some of the fees claimed by the Gorman firm, as the total fees claimed for the Bowman firm, Janke, and Alwaya (accepting Hansen's miscalculation of her fees) was $183,346.08. To the extent the trial court disallowed recovery of any fees generated by Gorman personally, there was no error.
(4) Apportionment of Fees
The construction contract between plaintiffs and contractor provided in part: "In the event of litigation between the parties, or if a party becomes involved in litigation because of wrongful acts of the other party, the prevailing party will be entitled to recover reasonable attorneys' fees."
In the trial court, contractor asserted that "under the plain language of the contract, Plaintiffs may only seek attorneys fees for the prosecution of their case against Tassajara." On appeal, contractor has apparently retreated from this narrow construction, arguing only that "it is quite reasonable, and certainly well within the discretion of the trial court, to apportion a fee award when there is more than one defendant." Plaintiffs argue that "the requested fees are not subject to allocation." (Underscoring & capitalization omitted.)
Plaintiffs argue for a broader construction of the attorney fee clause in the contract. We agree that it was broadly written. The language is reminiscent of an early phrasing of the tort of another doctrine. "`"It is generally held that where the wrongful act of the defendant has involved the plaintiff in litigation with others or placed him in such relation with others as makes it necessary to incur expense to protect his interest, such costs and expenses, including attorneys' fees, should be treated as legal consequences of the original wrongful act and may be recovered as damages."'" (Beraksa v. Stardust Records, Inc. (1963) 215 Cal. App. 2d 708, 718 [30 Cal. Rptr. 504].) The agreement provided that, if contractor's wrongful act caused plaintiffs to become involved in litigation with third parties, contractor would be liable for plaintiffs' attorney fees in that litigation (and vice versa). The agreement essentially incorporated the tort of another doctrine as to the recovery of attorney fees.[34]
(28) California law has recognized, in different contexts, that trial courts have discretion not only in setting the amount of an award of attorney fees, but in allocating the award among various defendants based on their relative *98 culpability. (No Oil, Inc. v. Occidental Petroleum Corp. (1975) 50 Cal. App. 3d 8, 28-29 [123 Cal. Rptr. 589] [enforcing former California Coastal Zone Conservation Act of 1972]; see Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal. App. 3d 961, 986 [259 Cal. Rptr. 599] [fees under § 1021.5]; Sokolow v. County of San Mateo (1989) 213 Cal. App. 3d 231, 250-251 [261 Cal. Rptr. 520] [same].) Washburn v. City of Berkeley (1987) 195 Cal. App. 3d 578 [240 Cal. Rptr. 784] noted on page 592: "federal courts have adopted various methods of apportioning or allocating fees among defendants in cases involving fee awards pursuant to 42 United States Code section 1988, and this court may look to federal law in applying section 1021.5. In Grendel's Den, Inc. v. Larkin (1st Cir. 1984) 749 F.2d 945 the court instructed, `[A] number of theories for apportioning fees have been advanced .... Among them are the simplest approach of dividing the award equally among the defendants ..., and the more sophisticated approaches of apportionment by degree of each defendant's liability ..., and apportionment by relative time spent litigating against each defendant.... Each of these theories may be more or less valid in a given case.' (Id., at pp. 959-960.)"
Plaintiffs assert that the allocation of fees is a question that is reviewed de novo on appeal. They rely in part on Abdallah v. United Savings Bank (1996) 43 Cal. App. 4th 1101 [51 Cal. Rptr. 2d 286], which states: "Apportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court's discretion ...." (Id. at p. 1111.) They also rely on Korech v. Hornwood (1997) 58 Cal. App. 4th 1412 [68 Cal. Rptr. 2d 637], which concluded, "We find the trial court acted well within its discretion, and we will not overturn its ruling." (Id. at p. 1423.) Their contention is unsupported by the precedent they invoke.
Because the trial court did not explain its award, we cannot determine to what extent, if any, it adopted contractor's suggestion to apportion only 41 percent of the total fees to contractor, parallel to the percentage of the total initial payment for which contractor was responsible.
(5) Reasonableness of Fees
Contractor contends that "the trial court reduced the excessive amount of fees requested to a reasonable amount, within its sound discretion."
As this court noted in Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal. App. 4th 21 [37 Cal. Rptr. 3d 221], the burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. (Id. at p. 65.) It is also plaintiffs' burden on appeal to prove that the court abused its discretion in awarding fees.
*99 (29) We have quoted at length above in part III.A.(3) (see ante, beginning at p. 63) some of the California Supreme Court's guidance in awarding attorney fees. We emphasize the following. "Thus, applying the lodestar approach to the determination of an award under Civil Code section 1717, the Court of Appeal in Sternwest Corp. v. Ash[, supra,] 183 Cal. App. 3d 74, 77 ... explained: `Section 1717 provides for the payment of a "reasonable" fee. After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.'" (PLCM, supra, 22 Cal. 4th 1084, 1095-1096.) "A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether." (Serrano IV, supra, 32 Cal. 3d 621, 635, fn. omitted.)
(6) Conclusions About the Attorney Fee Award
In the trial court, plaintiffs ultimately requested attorney fees of $1,350,538.83, after reducing their claim by a $65,000 error in their favor. Eliminating $664,094.50 as contractor's calculation of the fees charged by Gorman to represent himself and his wife leaves a total of $686,444.33. As indicated above (see ante, fn. 32), these totals came out to an odd number because, unremarked by the parties, Hansen apparently misread Alwaya's bills and he calculated her fees as including some of her costs. Her actual fees totaled $4,600, which he overstated by $2,440.58. Adjusting for this error, the actual total fees or lodestar amount was $684,003.75.
The trial court's award of $416,581.37 is a little under 61 percent of this lodestar amount. What has intrigued us is that the award is so precise and down to the penny, not $416,581.38 or $416,581.50 or $416,600. This precision suggests that it is the product of some mathematical computations. We have tried in vain for days to recreate this result by means of various formulas. We share some of our calculations below.
Semha Alwaya billed $250 per hour and charged her time in 1/10 of an hour increments. One-tenth of an hour would be a charge of $25. No amount of adding or subtracting 10ths of hours would yield a charge ending in 37 cents.
The Bowman firm billings totaled $173,540, reflecting attorneys charging either $200 or $250 per hour and paralegals $95. Like Alwaya, the practice of that firm was to charge for time in 1/10 of an hour increments. One-tenth of their various charges would be $9.50, $20 or $25. Again, no amount of adding or subtracting 10ths of hours would yield a charge ending in 37 cents.
*100 Bruce Janke submitted one bill totaling $2,762.50 for 8.5 hours of work at $325 per hour. His billing increments appear to be by the half-hour, so one-half hour would be a charge of $162.50. No amount of adding or subtracting half-hours would yield a charge ending in 37 cents.
The Gorman firm billings, excluding Gorman's time, totaled $521,098.25 for Hansen's time at $250, $260, and $280 hourly and paralegal time at $95 and $110 per hour. The practice of that firm was to charge for time in quarter-hour increments. Quarter-hour increments at their varying rates would be $62.50, $65, $70, $23.75, and $27.50. Again, no adding or subtracting of quarter-hour increments would yield a charge ending in 37 cents.[35]
While it is apparent that the trial court's award represents a reduction from the lodestar amount, after a long study we are at a loss to rationalize the award of $416,581.37. If the court considered the case to have been overlitigated in light of factors such as the nature and difficulty of the litigation or the amount involved, the court might have subtracted some of the hours claimed, but there is no whole number of billable fractions of hours that could be subtracted from the lodestar amount to yield its result. Instead of calculating a total number of excessive hours, the trial court might have applied a negative multiplier. But the trial court's award represents no exact fraction of the lodestar amount. Alternatively, the court might have considered some of the hourly rates to be too high, and reduced the lodestar amount in that fashion. But using the billing practices of any of the attorneys involved, the only way to arrive at a 37 cent remainder is take 1/10 of $3.70, one-quarter of $1.48, or one-half of 74 cents. There is no evidence in the record that these would be reasonable hourly rates for attorneys or paralegals in the area.
Instead of reducing the lodestar amount for any of the above reasons, the trial court might, as suggested by contractor, have determined that some percentage of these fees should be attributed to defendants who did not participate in the settlement (although there was no evidence of how much time plaintiffs spent litigating with non-settling defendants) or that contractor should not bear the sole responsibility for the fees involved in litigating with other settling defendants (because it did not cause that litigation). The difficulty with this assumption is that the award represents no exact fraction of the lodestar amount, not 41 percent or any other percent.
*101 We might be able to conclude that the trial court was acting within its considerable discretion to award reasonable attorney fees if the court had given any one of these reasons or cited any other factor recognized in case law for reducing the lodestar amount. However, after much puzzlement and frustration, we have been unable to surmise any mathematical or logical explanation for the trial court's award of $416,581.37. Instead, the number appears to have been snatched whimsically from thin air. It is the essence of arbitrariness to make an award of attorney fees that cannot be justified by the plaintiffs' request, the supporting bills, or the defendant's opposition. We are unable to ascertain a reasonable basis for the trial court's reduction of the lodestar amount. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App. 4th 140, 155-156 [50 Cal. Rptr. 3d 273]; cf. Hadley v. Krepel (1985) 167 Cal. App. 3d 677, 686 [214 Cal. Rptr. 461].)
(30) We adhere to our earlier conclusion that there is no general rule requiring trial courts to explain their decisions on motions seeking attorney fees. In cases where the award corresponds to either the lodestar amount, some multiple of that amount, or some fraction requested by one of the parties, the court's rationale for its award may be apparent on the face of the record, without express acknowledgment by the court of the lodestar amount or method. When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary. The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.
(31) It is the constitutional obligation of the appellate court to "determine causes ... in writing with reasons stated." (Cal. Const., art. VI, § 14.) A trial court's award of attorney fees must be able to be rationalized to be affirmed on appeal. In the absence of any explanation or comments by the trial court, we have unsuccessfully scrutinized the documents submitted by the parties to find reasons justifying the awards in this case. When a trial court makes an award that is inscrutable to the parties involved in the case, and there is no apparent reasonable basis for the award in the record, the award itself is evidence that it resulted from an arbitrary determination. (32) It is not the absence of an explanation by the trial court that calls the award in this case into question, but its inability to be explained by anyone, either the parties or this appellate court. We are compelled to conclude that there is no reasonable connection between the lodestar amount and the trial court's award.[36]
*102 DISPOSITION
The judgment is reversed. The case is remanded for further proceedings consistent with this opinion, which may include further briefing and a hearing as deemed helpful by the trial court.
Premo, J., and Elia, J., concurred.
NOTES
[1] Plaintiffs' briefs on appeal repeatedly asserted that their total claimed fees were $1,428,656.90, but when we requested clarification of their claims, their supplemental letter brief apologized for this $78,118.07 miscalculation. As will appear, one theme in this case is that attorneys are not mathematicians. Footnotes 31 and 32, post, explain other fee calculation errors by plaintiffs in their favor of $65,000 and $2,440.58. Other footnotes (including fn. 16, post) explain difficulties that contractor's counsel has had with numbers.
[2] The entire agreement on these topics is set forth in this footnote. We will quote particular provisions later in the text when relevant to our analysis.
"In addition to the Initial Consideration set forth above, Tassajara and its insurers shall pay to Plaintiffs such amount as the court determines to be reasonable attorneys' fees and costs (including reasonable expert and consultant fees) as may be allowed pursuant to the Construction Contract or as otherwise permitted by law (`Second Payment'). Notwithstanding that this is a settlement and that the matter has not proceeded to final judgment, it is agreed that Plaintiffs shall be deemed to be the `prevailing parties' in the Action solely for the purpose of invoking plaintiffs' rights to recover attorneys' fees and costs pursuant to the terms of the Construction Contract and that plaintiffs are entitled to recover costs as authorized by law as if they were prevailing parties in the Action. Plaintiffs' claims for attorneys fees and costs under this provision shall extend up to but no later than the date that this Agreement becomes binding based upon plaintiffs' receipt of a copy of this Agreement that has been fully and validly executed by all Settling Parties. In addition, it is agreed that Plaintiffs shall be permitted to seek recovery of any and all reasonable attorneys' fees and costs related to judicial determination of the amount of fees and costs that they are entitled to recover. Tassajara reserves all defenses to Plaintiffs' claims for recovery of attorneys fees and costs, including expert fees, with the exception that Tassajara agrees that Plaintiffs shall be permitted to recover as `costs' under this provision their expert, consultant, and other fees and costs that qualify as `Stearman' costs under the authority of Stearman v. Centex Homes, 78 Cal. App. 4th 611 [92 Cal. Rptr. 2d 761] (2000), in an amount to be determined by the court, and Tassajara agrees that it will not assert that Plaintiffs' `Stearman' costs were or should have been included as a portion of the Initial Payment. Plaintiffs' claim for attorneys' fee[s] and costs (including `Stearman' costs) shall be submitted to the court by appropriate motion and, upon its resolution, shall be reduced by the court to an immediately enforceable judgment against Tassajara, which judgment shall be deemed to be a `several' judgment under Cal. Civ. Proc. Code § 579. It is further understood and agreed that Plaintiffs and Tassajara shall each have the right to appeal the judgment rendered by the Superior Court. In the event of any appeal, Plaintiffs shall be entitled to post-judgment interest as authorized by law. Plaintiffs shall have 75 days from their receipt of a copy of this Agreement that has been fully and validly executed by all Settling Parties in which to file their motion for recovery of attorneys' fees and costs.
"Nothing in this section is intended to affect Plaintiffs' or Tassajara's right to recover attorneys' fees and costs against parties or persons, including but not limited to insurers of settling parties, who are not part of this settlement agreement. Tassajara represents and warrants that it has sufficient assets and/or insurance to cover the payment required to be made to Plaintiffs under this provision."
The agreement thus alternates between "attorneys fees" and "attorneys' fees."
[3] For example, J.D. Haaland Construction, Inc., and its alleged principal shareholder, Judd Haaland, allegedly involved in the framing, window and door installation, agreed to contribute $235,000. David Takamoto and Green 3 Studio, Inc., agreed to contribute $500,000. Davey Roofing, Inc., its alleged successors in interest, DRI Services, DRI Commercial, and DRI Residential, and their principals, Tim Davey, Alan Ruben, and Brian Flaherty, allegedly involved in the roofing, decking, and waterproofing, agreed to contribute $150,000.
[4] The Hansen declaration did not compute this total, but it is easy to derive from the costs components described in the declaration. The declaration does not explain which additional costs of $76,954.76 are requested outside of the cost memo, but the difference presumably could be derived by comparing the costs in the cost memo with the costs listed in the billings of Semha Alwaya and the Gorman and Bowman firms. For example, we do not see any of the $68.74 costs of Alwaya included in the cost memo.
[5] Although plaintiffs designated contractor's opposition as part of the clerk's transcript on appeal and declarations supporting the opposition were included in the record on appeal, this document was omitted from the record. We have granted their request to augment the record with this document.
[6] Plaintiffs did not designate the clerk's minutes of this hearing as part of the record on appeal. A reporter's transcript of the hearing appears in the record.
[7] After reciting the date and nature of the hearing, the order stated: "The matter having been submitted, the motion is granted in part and denied in part. Plaintiffs are awarded reasonable attorneys' fees of $416,581.37 and reasonable costs of $142,432.46."
[8] Unspecified section references are to the Code of Civil Procedure.
[9] Ketchum gave three reasons for remanding for a recalculation of fees. "[I]t was error for the superior court to apply an enhancement for contingent risk to the fees on fees accrued after the motion to strike was granted." (Ketchum, supra, 24 Cal. 4th 1122, 1142.) "By using counsel's qualifications and the submitted declarations to justify both the hourly rate and the multiplier, the court appears to have counted the same factor twice." (Ibid.) "[T]he superior court may improperly have permitted its disapproval of his litigation strategy to influence its selection of the enhancement amount." (Ibid.)
[10] In emphasizing that "[t]he record need only show" that the trial court employed the lodestar method, Rebney does not appear to require the trial court to expressly acknowledge the lodestar method or lodestar amount. (Rebney, supra, 232 Cal.App.3d at p. 1349.) While the record before the Rebney court included a statement of decision expressly acknowledging the lodestar method and fixing lodestar amounts (id. at p. 1347), the decision suggests that the trial court gave the parties more than the law required.
[11] We note that the motions in the cited cases essentially sought attorney fees as costs, not damages. As explained more fully below in part IV.A.(2)(A) (see post, at p. 78), when attorney fees are sought as tort damages, they "may not be asserted by post-trial motion but rather must be pleaded and proved to the trier of fact," unless "the parties stipulate otherwise." (Hsu v. Abbara (1995) 9 Cal. 4th 863, 869, fn. 4 [39 Cal. Rptr. 2d 824, 891 P.2d 804].) We do not intend to suggest that no statement of decision is required upon request after a court trial seeking attorney fees as tort damages.
[12] In light of this conclusion, we need not determine when and how the absence of a requested statement of decision may be prejudicial. (Compare Social Service Union v. County of Monterey (1989) 208 Cal. App. 3d 676, 681 [256 Cal. Rptr. 325], and cases there cited, with § 475 and Cal. Const., art. VI, § 13.)
[13] In In re Vitamin Cases (2003) 110 Cal. App. 4th 1041 [2 Cal. Rptr. 3d 358], a decision on which plaintiffs rely, the First District Court of Appeal (Div. Two) cited Ketchum as follows on page 1052. "When the record is unclear whether the trial court's award of attorney fees is consistent with the applicable legal principles, we may reverse the award and remand the case to the trial court for further consideration and amplification of its reasoning. (See, e.g., Ketchum v. Moses[, supra,] 24 Cal.4th at p. 1142 . . . .)"
We read this page of Ketchum differently. As explained above (see ante, fn. 9), Ketchum reversed due to apparent errors in the decision, not simple lack of clarity in the record. We do not believe that Ketchum ignored the principles that no judgment shall be reversed unless "the error complained of has resulted in a miscarriage of justice" (Cal. Const., art. VI, § 13) and that it appears that the party "complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown" (§ 475).
[14] Another appellate court made a similar complaint in a case not cited by the parties. "[O]ur task has been complicated by the terse nature of the trial court's ruling itself, which gives virtually no explanation for the basis of the substantially enhanced award of fees and costs here. Because it merely lists the enhancement factors used, without a more complete explanation of their applicability in this context, the order is subject to question regarding the factual basis of the exercise of discretion made." (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal. App. 4th 615, 624 [98 Cal. Rptr. 2d 388].)
[15] Similarly, section 1033.5, subdivision (c)(5) provides for different methods for fixing attorney fees recoverable pursuant to a contract, "either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties."
[16] The Coggshall declaration in support of contractor's opposition inexplicably totaled the Bowman firm's deposition fees and travel costs as $2,550.30, when their actual total is $3,986.71, which is $1,436.41 higher. This wrong total was added to another amount objected to ($54,886.27 as explained in the following part) to support Coggshall's assertion, repeated in contractor's opposition, that plaintiffs were seeking "$57,436.57" in unrecoverable costs, an amount also $1,436.41 too low, if contractor's other addition was accurate. To compound the confusion, the parties have adopted these miscalculated totals as premises for their further arguments, in Attorney Hansen's second declaration in the trial court, and in their supplemental letter briefs on appeal.
Contractor's challenge on this topic targeted the Bowman firm's billings. Contractor did not specifically object to another four charges, totaling $1,427.68, also listed in the cost memo under the heading of the costs of taking depositions, and characterized in the Gorman firm's billings as consisting of expert fees of $600 and $140.63, deposition fees of $337.05, and a deposition interpreter fee of $350. We note that what the Gorman billings also characterized as deposition fees were later described in the cost memo as the costs of transcribing the depositions.
[17] This amount was also calculated in an attachment to Attorney Coggshall's declaration. This was a component of the $57,436.57 total that we explained above (see ante, fn. 16) was miscalculated. Though Coggshall incorrectly added 30 items of deposition fees and travel expenses, we have not attempted to verify his addition of the approximately 140 items included in this total of $54,886.27.
For unknown reasons, contractor did not separately object to or total the much lesser copying charges included in the Bowman firm billings, and we will not undertake to calculate that total, though it was included in the Bowman firm's total costs for which plaintiffs sought recovery.
[18] We discuss plaintiffs' tort of another theory below (see post, at p. 78) under nonstatutory costs.
[19] The attachment listed under the costs of reproducing documents an "ALC (Initial Deposit)" on January 31, 2005, of $2,741.78, and six supplemental deposits, all totaling $3,313.43. We cannot find any of these deposits reflected in the billings of the Gorman firm. However, the Gorman firm's billing for January 31, 2005, listed three "Photocopying charges" totaling $3,029.33. Adding two of these three charges yields a total of $2,741.78. We see no explanation in the record for how the identical amounts were spent on the same day for a deposit and for photocopying charges. There are several other charges listed on this attachment that we have been unable to correlate with any amounts in the Gorman firm billings.
The attachment also listed a charge of $415.25 on April 30, 2004, for "SJ Blue Print (Plans)." We see no explanation in the record for how this charge was incurred pursuant to a court order creating a document depository filed 87 days later on July 26, 2004.
[20] Likewise, the other costs requested on the "Item 13(a)" attachment to the cost memo, to which contractor did not object, were also discretionary under section 1033.5, subdivision (c)(4), namely $15,694.54 for the fees of the special master, $987.16 for mediation fees, and $200 for a document depository administrative fee.
[21] We will explain below in part IV.B.(4) (see post, beginning at p. 97), that the attorney fee provision in the construction contract did authorize the recovery of attorney fees, but not costs, pursuant to the tort of another theory. The provision says nothing about the procedure (whether by way of motion or trial) for recovering such fees.
[22] As quoted above, Hansen's initial declaration stated that among the total fees and costs sought was "$266,561.96 in statutory costs that are itemized on the Memorandum of Costs ...." (Italics added.) This amount included the "`Stearman' costs." Even accepting that the parties agreed to call Stearman damages "costs." there is nothing "statutory" about this subtotal of $165,683.09.
[23] While these "`Stearman' costs" are really damages, we note that section 1033.5, subdivision (b)(2) provides that "Investigation expenses in preparing the case for trial" are not recoverable costs.
In contrast, when a plaintiff declines a defendant's offer of compromise and later fails to obtain a more favorable judgment or award, the court, "in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." (§ 998, subd. (c)(1).)
[24] Subsequent assertions by the parties have cast doubt on this subtotal. For reasons that do not readily appear, contractor's opposition to plaintiffs' motion asserted that plaintiffs were seeking $22,949.81 as "Stearman damages" paid to Morgan. Plaintiffs' reply in the trial court adopted this number. Plaintiffs' briefs on appeal do not specify an amount sought for Morgan. In contractor's brief on appeal, it attributes $22,094.21 as damages invoiced by Morgan, when that amount was sought for a different expert. We will adopt as the amount sought for Morgan the $22,370.81 stated in the memorandum of costs and in Morgan's declaration.
[25] We say "virtually all" because the initial Hansen declaration mentioned that there was $1,166.30 in "`Stearman' costs" in the cost memo that was not included on law firm invoices.
[26] Contractor has made a second objection to the four invoices from All Bay Development attached to Morgan's declaration. Contractor argues that plaintiffs should not be able to recover for Morgan's work because he is a friend of theirs who does not intend to charge them for his work as an expert. This argument is based on a deposition excerpt that appears to be limited, as plaintiffs assert, to Morgan's work in performing a home inspection. Morgan declared that he is the owner of both All Bay Home Inspection, Inc., and All Bay Development Corporation. The invoices in the record are from the latter company. Contractor falls short of establishing that plaintiffs have not actually incurred these charges. It is no defense that plaintiff has not yet paid a charge that has been incurred. (Smith v. Gates Rubber Co. (1965) 237 Cal. App. 2d 766, 769-770 [47 Cal. Rptr. 307].)
[27] While contractor has sought to limit "`Stearman' costs" by generally suggesting that all expert work after certain dates was for litigation, we do not understand contractor to be questioning the efforts of the experts to differentiate their own investigation and litigation costs. Nevertheless, we cannot help but notice that John Holland's declaration classified the following as investigative work: 21 hours of Naftzger's time at $225 per hour between August 2 and November 1, 2004, spent on researching allegations, analyzing allegations, reviewing claims and allegations with client and counsel, and revising the claims and allegations; nine hours each of Holland's time (at $185 per hour) and Naftzger's time (at $200 per hour) on May 13, 2005, for consulting in connection with a settlement conference; and three hours of Naftzger's time at $225 per hour on July 25, 2005, in preparation for mediation. In so noting, we do not pretend to have thoroughly reviewed the experts' efforts at segregating their charges.
[28] These declarations were not amended to reflect the Gorman firm's admitted $65,000 overcharge.
[29] We have not scrutinized all 30 pages of the invoices and summaries included in exhibit G for additional discrepancies.
[30] While contractor calculated that the Gorman firm billings included $54,886.27 for photocopying, postage, faxing, and Federal Express, plaintiffs had included in their cost memo only $10,114.57 for reproducing documents. This leaves $44,771.70 as not included in the cost memo. As noted above (see ante, fn. 19), there is no absolute correlation between these amounts, as we have been unable to find some of the listed costs of reproduction documented in the Gorman firm billings.
[31] The 275-page billings submitted by the Gorman firm included an apparent typographical error showing Associate Attorney Craig Hansen to have spent 260 hours on January 6, 2005, at $250 per hour reviewing a letter from opposing counsel at a total charge of $65,000. After contractor pointed this out, plaintiffs agreed to deduct this amount from their claim, and we will accordingly reduce their claimed totals.
[32] A table attached to Hansen's initial declaration as exhibit A listed Alwaya's fees as $7,040.58. Hansen's declaration stated that she billed $7,109.32. The difference between these two amounts is $68.74, which is the amount of costs listed in Alwaya's five attached invoices.
A close study of her invoices shows that her total fees were $4,600. Hansen's calculation of $7,109.32 included an unpaid balance of $1,525 from the first invoice included on her second invoice, and an unpaid balance of $915.58 included on her third invoice, while leaving off the unpaid balances listed on the fourth and fifth invoices. This calculation double-charges for some of her time and costs. Due to this error, plaintiffs' total of $1,350,535.83 is too high by $2,440.58. We will continue to use their total as the amount they claim.
In its supplemental letter brief, contractor calculates that plaintiffs are really seeking attorney fees of $1,350,044.55. They derive this lower result by counting Alwaya's fees as the higher amount of $7,109.32, but by leaving out the $560 representing two hours' time that Hansen estimated he had yet to spend on preparing for and attending the hearing on the motion.
[33] We could all be millionaires if it amounted to income to retain a dollar taken from our own pockets. An attorney could become a millionaire by charging himself a million dollars for one hour of representing himself and considering himself paid. We would not expect him to object if he set this hourly rate.
[34] This acknowledgment, that the contract provided for the recovery of attorney fees under the tort of another theory, casts no doubt on our conclusion above in part IV.A.(2)(A) that the tort of another doctrine does not apply in this case to authorize plaintiffs to recover the costs of litigating with third parties. The contract does not provide that the prevailing party "will be entitled to recover costs."
[35] We do realize that half of 75 cents would be 37.5, which could be rounded down to 37 cents. But half of $23.75 is $11.875, which would be rounded down to $11.87. Adding an increment of 50 cents to this amount, such as Janke's bill of $2,765.50 would yield $2,777.37. The trial court would have halved a charge of $23.75 only by concluding that a Gorman paralegal should have charged for an eighth of an hour instead of a quarter-hour. This illustrates the sheer speculation involved in attempting to recreate the trial court's reasoning process.
[36] In reaching this conclusion, we do not intend to suggest that the trial court was required to award the lodestar amount. We and contractor have identified a number of reasons that might support a reduced award. Our problem with the award here is that the award provides no evidence that trial court either adopted or rejected any particular arguments by the parties.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260412/
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178 Cal. App. 4th 619 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
DENIS KEITH ROTROFF, Defendant and Appellant.
No. H033527.
Court of Appeals of California, Sixth District.
October 22, 2009.
*626 Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Gregg Zywicke and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ELIA, J.
Appellant Denis Keith Rotroff appeals from an order of commitment for an indeterminate term that followed appellant's waiver of a jury trial and submission upon documentary reports and the trial court's finding, beyond a reasonable doubt, that appellant was a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6604.[1] On appeal, appellant challenges the constitutionality of the Sexually Violent Predator Act (SVPA) as amended by the passage of Proposition 83 in 2006.[2]
We affirm.
A. Single Subject Rule
Appellant maintains that Proposition 83[3] violated the single subject rule because it "combined too many disparate topics without a common purpose *627 under a broad and amorphous theme of dealing with sex offenders." The single subject rule is expressed in two constitutional provisions, one applicable to statutes and the other applicable to initiative measures. California Constitution, article II, section 8, subdivision (d), which applies to initiatives, provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."[4]
(1) The single subject rule is "a constitutional safeguard adopted to protect against multifaceted measures of undue scope" and "forbids joining disparate provisions which appear germane only to topics of excessive generality such as `government' or `public welfare.'" (Brosnahan v. Brown (1982) 32 Cal. 3d 236, 253 [186 Cal. Rptr. 30, 651 P.2d 274].) "The single subject rule as applied to the initiative has the dual purpose of avoiding logrolling and voter confusion. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal. 3d 208, 231 [149 Cal. Rptr. 239, 583 P.2d 1281].)" (Harbor v. Deukmejian (1987) 43 Cal. 3d 1078, 1098 [240 Cal. Rptr. 569, 742 P.2d 1290].) It is intended to avoid passage of a measure that combines "provisions which might not have commanded majority support if considered separately" and to "minimize the risk of voter confusion and deception. [Citation.]" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 231.)
(2) The California Supreme Court has "construed our two single subject provisions in an accommodating and lenient manner so as not to unduly restrict the Legislature's or the people's right to package provisions in a single bill or initiative. [Citations.]" (Californians for an Open Primary v. McPherson (2006) 38 Cal. 4th 735, 764 [43 Cal. Rptr. 3d 315, 134 P.3d 299].) It has "found the single subject rules to have been satisfied so long as challenged provisions meet the test of being reasonably germane to a common theme, purpose, or subject. [Citations.]" (Ibid., fn. omitted.)
In Brosnahan v. Brown, supra, 32 Cal. 3d 236, 248, it was argued that Proposition 8, commonly known as "The Victims' Bill of Rights," violated the single subject rule because it contained "disparate provisions covering a variety of `unrelated' matters such as school safety, restitution, bail, diminished capacity, and the like." The California Supreme Court concluded that the proposition met "the `reasonably germane' standard" because "[e]ach of its several facets bears a common concern, `general object' or `general subject,' promoting the rights of actual or potential crime victims." (Id. at p. 247.) The court stated: "As explained in the initiative's preamble, the 10 sections were designed to strengthen procedural and substantive safeguards *628 for victims in our criminal justice system. These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victims, namely school pupils and staff, and assuring restitution for the victims of criminal acts." (Ibid.) The "readily discernible common thread" uniting the initiative's provisions was the goal of protecting and enhancing the rights of crime victims. (Ibid.)
In Manduley v. Superior Court (2002) 27 Cal. 4th 537 [117 Cal. Rptr. 2d 168, 41 P.3d 3], the Supreme Court upheld Proposition 21 against various claims that it violated the single subject rule. (27 Cal.4th at pp. 573-581.) Its provisions related to the "Three Strikes" law, criminal gang activity, and the juvenile justice system. (27 Cal.4th at pp. 574-575.) The court determined that "[t]he general object of the initiative is to address the problem of violent crime committed by juveniles and gangs ...." (Id. at pp. 575-576.) It decided: "[T]he provisions of Proposition 21 that change laws regarding gang-related crime and the juvenile justice system are reasonably germane to each other and to the initiative's common purpose of addressing violent crime committed by juveniles and gangs." (Id. at p. 576.) It further determined that "[r]evising the list of violent and serious felonies to add crimes for which juveniles and gang members can receive increased penalties is reasonably germane to the initiative's general purpose of addressing juvenile and gang-related crime," "[e]ven if some of the crimes added to the list of violent and serious felonies are more likely to be committed by an adult who is not a gang member," because "the offenses nonetheless constitute crimes that commonly are committed by members of street gangs and/or juvenile offenders..." (id. at p. 578).
(3) In this case, the separate provisions of Proposition 83 are "reasonably germane to a common theme, purpose, or subject" of protecting the public against the commission of sex offenses. Appellant has not identified any provision that falls outside this common purpose. The fact that the measure affected both Welfare and Institutions Code and Penal Code sections is not determinative. (See Manduley v. Superior Court, supra, 27 Cal.4th at pp. 574-575.) While appellant complains that the proposition reflects a "scattered shotgun approach to diverse topics," he concedes that these topics "relate broadly to sex offenses." (4) The single subject rule does not require that each of the provisions of an initiative measure effectively interlock in a functional relationship. (Id. at p. 575.)
In addition, we must reject appellant's assertion that the public probably misunderstood that "SVP proceedings were civil in nature" since we assume the voters duly considered and comprehended the voter materials. *629 (Manduley v. Superior Court, supra, 27 Cal.4th at p. 580.) The proposition's official summary prepared by the Attorney General, which is contained in the Official Voter Information Guide, explicitly stated up front, underneath the official title: "Changes current two-year involuntary civil commitment for a sexually violent predator to an indeterminate commitment, subject to annual review by the Director of Mental Health and subsequent ability of sexually violent predator to petition court for sexually violent predator's conditional release or unconditional discharge." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) official title and summary of Prop. 83, p. 42, italics added.) One of the proposition's express findings supporting the changes in the SVPA stated in part: "California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, § 2, subd. (k), p. 127, italics added.)
(5) Proposition 83 does not violate the single subject requirement of article II, section 8, subdivision (d), of the California Constitution.
B. Due Process
Appellant maintains that the revised SVPA, by providing for an indeterminate term of commitment for persons determined to be SVP's, "creates an unacceptable risk that an SVP detainee who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process." He insists that due process requires "periodic and mandatory hearings in which the government bears the burden of proof."
(6) There is no dispute that persons committed under the SVPA are entitled to the protection of due process. "[F]or the ordinary citizen, commitment to a mental hospital produces `a massive curtailment of liberty,' [citation], and in consequence `requires due process protection.' [Citations.]" (Vitek v. Jones (1980) 445 U.S. 480, 491-492 [63 L. Ed. 2d 552, 100 S. Ct. 1254].) "It is clear that `commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.' Addington v. Texas, 441 U.S. 418, 425 [60 L. Ed. 2d 323, 99 S. Ct. 1804, 1809] (1979)." (Jones v. U.S. (1983) 463 U.S. 354, 361 [77 L. Ed. 2d 694, 103 S. Ct. 3043].)
(7) The existence of a recognized liberty interest requiring due process protection, however, does not tell us what procedures are required because "due process is flexible and calls for such procedural protections as the particular situation demands." (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [33 L. Ed. 2d 484, 92 S. Ct. 2593].) The United States Supreme Court has generally eschewed "rigid rules and instead ha[s] embraced a framework to *630 evaluate the sufficiency of particular procedures." (Wilkinson v. Austin (2005) 545 U.S. 209, 224 [162 L. Ed. 2d 174, 125 S. Ct. 2384].) "To determine what procedural protections the Constitution requires in a particular case, we weigh several factors: [¶] `First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Mathews v. Eldridge, 424 U.S. 319, 335 [47 L. Ed. 2d 18, 96 S. Ct. 893, 903] (1976)." (Zinermon v. Burch (1990) 494 U.S. 113, 127 [108 L. Ed. 2d 100, 110 S. Ct. 975].)
The significance of the private interest of an individual subjected to the SVPA cannot be overstated since it is "the most elemental of liberty interests" (Hamdi v. Rumsfeld (2004) 542 U.S. 507, 529 [159 L. Ed. 2d 578, 124 S. Ct. 2633]), the fundamental right of a citizen "to be free from involuntary confinement by his own government without due process of law." (id. at p. 531). "To the extent Proposition 83 has increased the burden upon liberty interests by requiring only one predicate offense and imposing an indeterminate term of commitment, it has increased the weight of the first factor," the private interest affected by official action. (People v. Allen (2008) 44 Cal. 4th 843, 863, fn. 15 [80 Cal. Rptr. 3d 183, 187 P.3d 1018].)
As this court previously observed in People v. Litmon (2008) 162 Cal. App. 4th 383, 401 [76 Cal. Rptr. 3d 122], "the state has no interest in the involuntary civil confinement of persons who have no mental disorder or who are not dangerous to themselves or others. (Addington v. Texas, supra, 441 U.S. at p. 426; cf. Foucha v. Louisiana [(1992)] 504 U.S. [71,] 80-82 [118 L. Ed. 2d 437, 112 S. Ct. 1780] [state had no legitimate interest in continued detention of `insanity acquittee' who was no longer mentally ill]; O'Connor v. Donaldson [(1975)] 422 U.S. [563,] 576 [45 L. Ed. 2d 396, 95 S. Ct. 2486] [`State cannot constitutionally confine without more a nondangerous [mentally ill] individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.'].)" In "O'Connor v. Donaldson, 422 U.S. 563 [45 L. Ed. 2d 396, 95 S. Ct. 2486] ..., [the United States Supreme Court] held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, `it could not constitutionally continue after that basis no longer existed.' Id., at 575." (Foucha v. Louisiana, supra, 504 U.S. at p. 77.)
(8) "The Due Process Clause `requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the *631 individual is committed.' Jackson v. Indiana, 406 U.S. 715, 738 [32 L. Ed. 2d 435, 92 S. Ct. 1845, 1858] (1972)." (Jones v. U.S., supra, 463 U.S. at p. 368.) (9) Since "it is impossible to predict how long it will take for any given individual to recoveror indeed whether he ever will recover ..." (ibid.), California has now provided for an indeterminate commitment term for persons determined to be SVP's and annual reevaluations by the DMH (State Department of Mental Health) and other procedural safeguards. (See §§ 6604, 6605, 6608.) The critical issue, which we closely examine, is "the risk of an erroneous deprivation" of a committed person's liberty interest "through the procedures used." (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L. Ed. 2d 18, 96 S. Ct. 893].)
The SVPA mandates: "A person found to be a sexually violent predator and committed to the custody of the State Department of Mental Health shall have a current examination of his or her mental condition made at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community. The Department of Mental Health shall file this periodic report with the court that committed the person under this article." (§ 6605, subd. (a).) A copy of the annual report must be served on the committed person. (Ibid.) Any qualified expert or professional person retained by the committed person to examine the person, or appointed by the court if the person is indigent, is entitled to "access to all records concerning the person." (Ibid.)
(10) If the DMH "determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community," the director must authorize the person committed as an SVP to "petition the court for conditional release to a less restrictive alternative or for an unconditional discharge." (§ 6605, subd. (b).) The director's authorization is not discretionary where the specified DMH determinations have been made and, contrary to appellant's assertion, the government cannot avoid making any further showing "simply by not filing a petition under section 6605."
Upon receiving such a petition, the trial court must "order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (§ 6605, subd. (b).) "If the court at the show cause hearing determines that probable cause exists to believe that the committed *632 person's diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged," then the court must "set a hearing on the issue." (§ 6605, subd. (c).)
(11) Although the term "probable cause" as used in section 6605 is not defined, "`the rule of law is well established that where the Legislature uses terms already judicially construed, the "presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts".' (City of Long Beach v. Marshall (1938) 11 Cal. 2d 609, 620 [82 P.2d 362].)" (Cooley v. Superior Court (2002) 29 Cal. 4th 228, 251 [127 Cal. Rptr. 2d 177, 57 P.3d 654].) (12) "Probable cause" as used in section 6602 "entails a decision whether a reasonable person could entertain a strong suspicion that the offender is an SVP." (29 Cal.4th at p. 252, italics omitted; see id. at p. 236 ["the section 6602 hearing requires the superior court to determine whether a reasonable person could entertain a strong suspicion that the petitioner has satisfied all the elements required for a civil commitment as an SVP ..."].) We can safely assume that the Legislature, by subsequently using the same "probable cause" term in section 6605, intended the superior court to determine at the show cause hearing whether a reasonable person could entertain a strong suspicion that the committed person is no longer an SVP. (See § 6605, subd. (c).)
Further, it is reasonable to expect that section 6605's "probable cause" standard will ordinarily be satisfied if the annual report produced by the DMH finds that the committed person does not currently meet the definition of an SVP since the agency presumably has the expertise and access to current information necessary to make such a finding.[5] The DMH is charged with providing an SVP committed to its custody with appropriate treatment for his or her diagnosed mental disorder (§§ 6604, 6606, subd. (a)) and the DMH must use professionals for its annual evaluation (§ 6605, subd. (a) ["The [annual] report shall be in the form of a declaration and shall be prepared by a professionally qualified person."]).
(13) Once the trial court determines there is probable cause, the committed person has the right to demand a jury trial and to have his own experts evaluate him. (§ 6605, subd. (d).) A committed person who is indigent is entitled to an appointed expert upon request. (Ibid.) "At the hearing, the committed person shall have the right to be present and shall be entitled to the benefit of all constitutional protections that were afforded to him or her at *633 the initial commitment proceeding." (Ibid.) Importantly, as with the initial commitment trial, the state has the burden of proof. It must prove "beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (Ibid.) If the burden of proof is not met, the committed person must be "unconditionally released and unconditionally discharged." (§ 6605, subd. (e).) Thus, appellant's claim that a person committed as an SVP has "no right to a hearing at which the government must prove the need for continued detention" is not completely correct.
(14) In addition to the rights of petition and hearing established by section 6605, the DMH must "seek judicial review of the person's commitment pursuant to the procedures set forth in Section 7250 [writ of habeas corpus] in the superior court from which the commitment was made" if it has reason to believe that a person committed to it as an SVP is no longer an SVP.[6] (§ 6605, subd. (f).) "If the superior court determines that the person is no longer a sexually violent predator, [the person must] be unconditionally released and unconditionally discharged." (Ibid.) Thus, whether or not the committed person files an authorized section 6605 petition, it appears that DMH must generally seek habeas corpus relief for the committed person following an annual report concluding that the person no longer meets the definition of an SVP. Moreover, habeas corpus proceedings can be, if necessary, speedily resolved. (See People v. Standish (2006) 38 Cal. 4th 858, 887 [43 Cal. Rptr. 3d 785, 135 P.3d 32]; People v. Romero (1994) 8 Cal. 4th 728, 744 [35 Cal. Rptr. 2d 270, 883 P.2d 388].)
(15) Other statutory provisions help ensure that the nature and duration of commitment are reasonably related to the purpose of the commitment. The Director of Mental Health is required to file a report and recommendation for conditional release whenever the director determines that a committed person's "diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community." (§ 6607, subd. (a).) This triggers a judicial conditional release hearing "in accordance with the procedures set forth in Section 6608." (§ 6607, subd. (b).)
Under section 6608, committed persons continue to have the right to bring a petition for unconditional discharge or conditional release without authorization: "Nothing in this article shall prohibit the person who has been *634 committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health." (§ 6608, subd. (a).) A person petitioning for conditional release or unconditional discharge under section 6608 is entitled to assistance of counsel. (Ibid.)
(16) Section 6608 does, however, erect a number of procedural hurdles. "If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted." (§ 6608, subd. (a).) Section 6608 directs the court to "endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds" and, if frivolous, to "deny the petition without a hearing." (Ibid.) Also, in a hearing under section 6608, the petitioner has "the burden of proof by a preponderance of the evidence." (§ 6608, subd. (i).) Further, a section 6608 petitioner is not entitled to a hearing until the person "has been under commitment for confinement and care in a facility designated by the Director of Mental Health for not less than one year from the date of the order of commitment." (§ 6608, subd. (c).) "If the court denies the petition to place the person in an appropriate forensic conditional release program or if the petition for unconditional discharge is denied, the person may not file a new application until one year has elapsed from the date of the denial." (§ 6608, subd. (h).)
The burdens and requirements imposed upon a petitioner by section 6608 are an "apparent attempt to deter multiple unsubstantiated requests and to reduce the administrative burden that might otherwise occur ...." (Hubbart v. Superior Court (1999) 19 Cal. 4th 1138, 1148, fn. 14 [81 Cal. Rptr. 2d 492, 969 P.2d 584].) Even assuming arguendo that a due process concern might exist if section 6608 were the only avenue for obtaining release, multiple statutory provisions ensure that the duration of SVP commitment bears a reasonable relation to the committed person's continuing qualification as an SVP.
(17) Even with the provision of an indeterminate term, the SVPA as a whole continues to ensure that the duration of actual commitment under an order of commitment for an indeterminate term is consistent with constitutional due process limits.
*635 C. Equal Protection
Appellant asserts that he has been denied equal protection under the Fourteenth Amendment of the United States Constitution. He compares the indeterminate term of commitment under the SVPA to the one-year commitment term provided by the Mentally Disordered Offender (MDO) Act (Pen. Code, § 2960 et seq.). He also points to the statutory right of insanity acquittees to be heard on application for release under Penal Code section 1026.2 after 180 days of confinement, an option not available to persons committed under the SVPA. He maintains that these differences are not justified by any compelling state interest as required under a strict scrutiny standard of review and, therefore, the SVPA violates his constitutional right of equal protection.
(18) "`"The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment."' (In re Gary W. (1971) 5 Cal. 3d 296, 303 [96 Cal. Rptr. 1, 486 P.2d 1201].) `The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but `whether they are similarly situated for purposes of the law challenged.' [Citation.]" (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253, italics omitted; see Lawrence v. Texas (2003) 539 U.S. 558, 579 [156 L. Ed. 2d 508, 123 S. Ct. 2472] ["The Equal Protection Clause of the Fourteenth Amendment `is essentially a direction that all persons similarly situated should be treated alike.'"].)
As appellant indicates, the MDO act provides for a maximum one-year commitment, which may be extended for additional one-year terms. (Pen. Code, §§ 2970, 2972, subd. (c); see People v. Allen (2007) 42 Cal. 4th 91, 103 [64 Cal. Rptr. 3d 124, 164 P.3d 557].) The People have the burden of proof beyond a reasonable doubt on a petition for continued treatment. (Pen. Code, § 2972, subd. (a); see Pen. Code, § 2970.) While both SVP's and MDO's have been convicted of crimes related to mental disorders that render them dangerous, these groups are not similarly situated with regard to the specified length of the commitment term. The MDO law targets prisoners who have a "treatable, severe mental disorder," which "was one of the causes of, or was an aggravating factor in the commission of the crime for which they were incarcerated" but which can be kept in remission with mental health treatment. (Pen. Code, § 2960; see Pen. Code, § 2962.) The one-year MDO commitment term is consistent with the treatable nature of the mental disorders suffered by MDO's. As previously indicated, "[a]menability to treatment is not required for a finding" that a person is an SVP. (§ 6606, *636 subd. (b).) As we have also noted, Proposition 83's express findings indicate "sex offenders are the least likely to be cured ..." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, § 2, subd. (b), p. 127; cf. Hubbart v. Superior Court, supra, 19 Cal. 4th 1138, 1165 ["legislative findings accompanying the [Kansas Sexually Violent Predator Act at issue in Kansas v. Hendricks (1997) 521 U.S. 346 [138 L. Ed. 2d 501, 117 S. Ct. 2072]] suggested that sexually violent predators were `"unamenable to existing mental illness treatment modalities,"' and would likely require care and commitment on a `"long term"' basis"].) Because SVP's are not necessarily amenable to effective treatment and as a group of offenders have poorer prospects for being cured, SVP's are not similarly situated to MDO's with respect to imposition of an indeterminate term. Nevertheless, as discussed with regard to due process, the actual duration of an indeterminate term under the SVPA depends upon whether any particular committed person continues to meet the definition of an SVP. Thus, the actual commitment time for both groups of committed persons is linked to their continued qualification for commitment.
As to committed insanity acquittees, appellant focuses on their right to apply for release under Penal Code section 1026.2[7] (Pen. Code, § 1026.2, subd. (a)) and to be heard on that application in as little as 180 days after the date of the order of commitment (Pen. Code, § 1026.2, subd. (d)). He asserts that SVP's have no similar "right to compel a hearing on the merits regarding their committed status ...." A committed insanity acquittee's application for release on the ground that sanity has been restored triggers a two-step hearing process (see Pen. Code, § 1026.2, subds. (e), (h); People v. Soiu (2003) 106 Cal. App. 4th 1191, 1196 [131 Cal. Rptr. 2d 421]) but "[n]o hearing upon the application" is "allowed until the person committed has been confined or placed on outpatient status for a period of not less than 180 days from the date of the order of commitment." (Pen. Code, § 1026.2, subd. (d).)
At the first hearing, the outpatient placement hearing, the insanity acquittee has the burden of proving "the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community ...." (Pen. Code, § 1026.2, subd. (e).) If the court determines that burden of proof has been satisfied, then it must "order the applicant placed with an appropriate forensic conditional release program for one year." (Ibid.) The second step is a trial on restoration of sanity. (Pen. Code, § 1026.2, subds. (e), (f), (h); see People v. Soiu, supra, *637 106 Cal.App.4th at p. 1196.) In both steps, the applicant has "the burden of proof by a preponderance of the evidence." (Pen. Code, § 1026.2, subd. (k).)
In People v. Soiu, supra, 106 Cal. App. 4th 1191, 1197-1198, an appellate court determined that a trial court cannot deny a release application brought under Penal Code section 1026.2 without holding an outpatient placement hearing. Under Penal Code section 1026.2, if a trial court "denies the application to place the person in an appropriate forensic conditional release program or if restoration of sanity is denied, no new application may be filed by the person until one year has elapsed from the date of the denial." (Pen. Code, § 1026.2, subd. (j).)
Section 6608 also involves a two-step hearing process. If the court at the first hearing "determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community," the court must "order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (§ 6608, subd. (d).) An unconditional release hearing must be held at the end of that year. (Ibid.) In both steps, the SVP petitioner has "the burden of proof by a preponderance of the evidence." (§ 6608, subd. (i).) Thus, like insanity acquittees, SVP's may annually seek release through a hearing process in which they have the burden of proof by a preponderance of the evidence. (See § 6608, subds. (c) [must have been committed for at least one year before hearing on § 6608 petition], (h) ["If the court denies the petition to place the person in an appropriate forensic conditional release program or if the petition for unconditional discharge is denied, the person may not file a new application until one year has elapsed from the date of the denial."], (i) [petitioner has burden of proof by a preponderance of the evidence].)
(19) Although, unlike insanity acquittees, a person committed as an SVP cannot be heard on a section 6608 petition until at least one year from the date of the order of commitment (§ 6608, subd. (c)), this difference does not establish an equal protection violation. SVP's and insanity acquittees are not similarly situated with respect to the possibility of seeking release during the initial year of commitment. The involuntary commitment of an insanity acquittee is based upon a jury finding following trial that a defendant "was insane at the time the offense was committed." (Pen. Code, § 1026, subd. (a).) Thus, the insanity finding, upon which the initial commitment is based, concerns some point in time prior to the filing of an accusatory pleading and the subsequent criminal trial. In contrast, a commitment under SVPA is based upon a jury finding, beyond a reasonable doubt, that a person has a current mental disorder "that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent *638 criminal behavior." (§ 6600, subd. (a)(1), (3); see § 6604; People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 902 [119 Cal. Rptr. 2d 1, 44 P.3d 949].) Given these differences, section 6608's provision requiring at least one year of commitment before a section 6608 hearing does not contravene the equal protection guarantee.
(20) In addition, we conclude that section 6608's express authorization of summary denial does not constitute an equal protection violation. That section allows a trial court to deny any frivolous petition or any petition, subsequent to a frivolous or unsuccessful section 6608 petition, that fails to allege "facts upon which a court could find that the condition of the committed person had so changed that a hearing [is] warranted." (§ 6608, subd. (a).) In the absence of any facts possibly showing a meaningful change in the condition of a person found to be an SVP beyond a reasonable doubt, a petition for release would be devoid of merit. The definition of "frivolous" has been understood as meaning "indisputably" or "totally and completely" without merit. (See People v. Collins (2003) 110 Cal. App. 4th 340, 349-352 [1 Cal. Rptr. 3d 641] [reversal of order denying § 6608 petition for conditional release without a hearing because petition was not completely without merit], 350 ["if the defendant's position has some merit on the issue of whether he or she may qualify for conditional release, the statute requires that the court provide the defendant a hearing on the matter"]; see also In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650 [183 Cal. Rptr. 508, 646 P.2d 179] [appeal is frivolous "when it is prosecuted for an improper motiveto harass the respondent or delay the effect of an adverse judgmentor when it indisputably has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit"].)
(21) Although Penal Code section 1026.2 contains no provision authorizing summary denial of applications for release, courts have inherent power to summarily deny any action that is predicated upon sham or wholly frivolous grounds. (See Lyons v. Wickhorst (1986) 42 Cal. 3d 911, 915 [231 Cal. Rptr. 738, 727 P.2d 1019] [recognizing trial court may invoke limited, inherent discretionary power to dismiss where pleading a sham]; Ferguson v. Keays (1971) 4 Cal. 3d 649, 658 [94 Cal. Rptr. 398, 484 P.2d 70] [appellate courts possess inherent power to summarily dismiss any action or appeal "based upon wholly sham or frivolous grounds"].) People v. Soiu, supra, 106 Cal. App. 4th 1191, which is relied upon by appellant in arguing that trial courts have no discretion to summarily deny an insanity acquittee's application for release without a hearing, did not concern a sham or a patently frivolous application for release. Moreover, we do not believe that indisputably baseless claims enjoy constitutional protection. Both insanity acquittees and SVP's are entitled to be heard on their applications or petitions for release that have arguable merit. (See People v. Collins, supra, 110 Cal. App. 4th 340; cf. In re Marriage of Flaherty, supra, 31 Cal. 3d 637, 650 *639 ["Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal" and "[a]n appeal that is simply without merit is not by definition frivolous ..."].)
We discern no equal protection violation as argued by appellant.
D. Ex Post Facto and Double Jeopardy Prohibitions
(22) Appellant contends that his indeterminate commitment under the SVPA is punitive and, therefore, violates the federal constitutional prohibitions against ex post facto laws and double jeopardy. The double jeopardy clause of "[t]he Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 793-796 [23 L. Ed. 2d 707, 89 S. Ct. 2056, 2061-2064]), protects defendants from repeated prosecution for the same offense [citations], by providing that no person shall `be subject for the same offense to be twice put in jeopardy of life or limb....'" (People v. Batts (2003) 30 Cal. 4th 660, 678 [134 Cal. Rptr. 2d 67, 68 P.3d 357].) It "protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399 [82 L. Ed. 917, 58 S. Ct. 630, 633] (1938); see also [U. S. ex rel. Marcus v. Hess (1943) 317 U.S. 537,] 548-549 [87 L. Ed. 443, 63 S. Ct. 379, 386-387] (`Only' `criminal punishment' `subject[s] the defendant to "jeopardy" within the constitutional meaning'); Breed v. Jones, 421 U.S. 519, 528 [44 L. Ed. 2d 346, 95 S. Ct. 1779, 1785] (1975) (`In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution')...." (Hudson v. United States (1997) 522 U.S. 93, 99 [139 L. Ed. 2d 450, 118 S. Ct. 488].) (23) "The Ex Post Facto Clause, which `"forbids the application of any new punitive measure to a crime already consummated,"' has been interpreted to pertain exclusively to penal statutes. [Citation.]" (Kansas v. Hendricks, supra, 521 U.S. 346, 370, italics omitted.) (24) A judicial determination that a law is not punitive "removes an essential prerequisite" for both double jeopardy and ex post facto claims. (Id. at p. 369.)
Appellant maintains that the revised SVPA was intended to impose criminal punishment and also is punitive in effect. He points to Proposition 83's "Intent Clause." That provision states that the intent of the people of California in enacting the measure was to "strengthen and improve the laws that punish and control sexual offenders" and requires any conflicting provision of law "that provides for a greater penalty or longer period of imprisonment" to supersede the provisions contained in Proposition 83. (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, § 31, p. 138.) He maintains that "[t]he intent to punish is also evident from the scope of the reforms," which include increased criminal penalties, imposition of lengthier *640 parole periods, a more inclusive definition of "sexually violent predator," and more restrictions upon registered sex offenders. Appellant insists that an indeterminate term of commitment under the SVPA is similar to a life prison term with the possibility of parole and is punitive in effect because "mental illness is not necessarily a permanent condition" and the SVPA now permits a person committed as an SVP to be "retained in custody long past the duration of his mental illness without the government ever having to justify the need for the ongoing commitment." We are not persuaded.
(25) In determining whether a law imposes criminal punishment, we first determine whether the intent was to impose criminal punishment and, if there was no such intent, we next consider the effect of the law. (See Smith v. Doe (2003) 538 U.S. 84, 92 [155 L. Ed. 2d 164, 123 S. Ct. 1140] [retroactive application of sex offender registration statute was not ex post facto violation]; Hudson v. United States, supra, 522 U.S. at p. 99 [civil sanctions imposed for violation of federal banking law not criminal punishment and did not bar subsequent criminal prosecution].) Generally, the government "may take measures to restrict the freedom of the dangerously mentally ill." (Kansas v. Hendricks, supra, 521 U.S. 346, 363.) "This is a legitimate nonpunitive governmental objective and has been historically so regarded. [Citation.]" (Ibid.) "[C]onfinement of `mentally unstable individuals who present a danger to the public' [is] one classic example of nonpunitive detention. [Citation.]" (Ibid.)
In enacting the SVPA in 1995, the Legislature expressly stated its intent that persons determined to be SVP's "be confined and treated until such time that it can be determined that they no longer present a threat to society" and "be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats. 1995, ch. 763, § 1, pp. 5921-5922.) Section 6250 continues to provide that persons subject to judicial commitment as SVP's "be treated, not as criminals, but as sick persons."
Prior to the SVPA's 2006 amendment, the California Supreme Court had upheld it against ex post facto claims. (See Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1170-1179.) It concluded that "the SVPA does not impose liability or punishment for criminal conduct...." (Id. at p. 1175.) The court has determined that "SVPA proceedings are civil in nature [citations] ...." (Cooley v. Superior Court, supra, 29 Cal.4th at p. 250; see People v. Allen, supra, 44 Cal.4th at p. 860 ["Proceedings to commit an individual as a sexually violent predator in order to protect the public are civil in nature."].) This court has also previously rejected as meritless both ex post facto and double jeopardy claims against the SVPA. (See, e.g., People v. Carlin (2007) 150 Cal. App. 4th 322, 348 [58 Cal. Rptr. 3d 495]; People v. Hubbart (2001) 88 Cal. App. 4th 1202, 1226 [106 Cal. Rptr. 2d 490].)
*641 As the California Supreme Court recently noted: "Proposition 83 amended the Penal Code as well as the Welfare and Institutions Code. The intent to punish sexually violent predators through Penal Code provisions that apply to criminal prosecutions does not establish an intent to punish sexually violent predators through Welfare and Institutions Code provisions that apply to civil commitment proceedings. Although Proposition 83 made amendments to both the criminal and the civil schemes, it recognized the different purposes of these two schemes, stating in the preamble: `Existing laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.' (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (h), p. 127, italics added.)" (People v. Allen, supra, 44 Cal.4th at pp. 861-862.)
Proposition 83's express findings and declarations specific to the SVPA state a desire to avoid "unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, § 2, subd. (k), p. 127.) The express statements that "California is the only state" among states providing for involuntary commitment of SVP's that "does not provide for indeterminate commitments" and that "California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator" (ibid.) reflect an intent to eliminate a needless burden on the state, rather than an intent to punish committed persons.
Further, we do not agree that the indeterminate term of commitment renders the SVPA punitive in effect. In Kansas v. Hendricks, supra, 521 U.S. 346, "Hendricks focuse[d] on his confinement's potentially indefinite duration as evidence of the State's punitive intent." (Id. at p. 363.) The United States Supreme Court in Hendricks concluded that, "[f]ar from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. Cf. Jones, 463 U.S., at 368 (noting with approval that `because it is impossible to predict how long it will take for any given individual to recover [from insanity] or indeed whether he will ever recoverCongress has chosen ... to leave the length of commitment indeterminate, subject to periodic review of the patient's suitability for release')." (Id. at pp. 363-364.) The court found it significant that a committed person was "statutorily entitled to immediate release" whenever he was adjudged safe to be at large. (Id. at p. 364.)
While the limited duration of any single commitment term was a consideration in the prior determinations by the United States Supreme Court and the *642 California Supreme Court that the potentially indefinite commitment of an SVP did not constitute criminal punishment (see Kansas v. Hendricks, supra, 521 U.S. at p. 364 [one-year term under Kansas's Sexually Violent Predator Act]; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177 [two-year term under California's SVPA]), neither court suggested that an indeterminate term of civil commitment would necessarily constitute criminal punishment. The California Supreme Court noted in Hubbart, "nothing in Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined ...." (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1176.)
(26) As our due process discussion indicates, the actual length of an indeterminate term of commitment under the current SVPA depends upon whether the committed person continues to qualify as an SVP. The present law contains procedural safeguards directly linking the duration of any commitment to the existence of an ongoing qualifying mental disorder resulting in dangerousness. (See §§ 6600, subd. (a)(1), 6604, 6605, 6607, 6608.) Viewed as a whole, the SVPA continues to be "designed to ensure that the committed person does not `remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' (Hendricks, supra, 521 U.S. 346, 364 [117 S. Ct. 2072, 2083].)" (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177.) Appellant has demonstrated neither a punitive intent nor a punitive effect. (Cf. Kansas v. Hendricks, supra, 521 U.S. at pp. 368-369.)
E. First Amendment Right of Petition
Appellant claims that the SVPA violates the federal first amendment right to petition the court for redress of grievances by limiting access to the court and not providing "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." He points to the statutory requirement that a committed person's section 6605 petition for conditional release or unconditional discharge be authorized by the Director of Mental Health (§ 6605, subd. (b)) and maintains that this limitation is "analogous to the regulation in Ex Parte Hull" requiring administrative screening and approval of documents before transmittal to a reviewing court, which was held unconstitutional. Appellant further argues that "[t]he combined effect of section[s] 6605 and 6608 will be to deny SVP detainees the opportunity to [be heard] on the merits in court" since section 6605 requires preauthorization and section 6608, although it has no authorization prerequisite, places the burden of proof on the committed person but does not provide for appointment of a medical expert who would provide the necessary proof and permits summary denial of frivolous petitions filed under that section.
*643 (27) "[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." (Bill Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 741 [76 L. Ed. 2d 277, 103 S. Ct. 2161]; see California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510 [30 L. Ed. 2d 642, 92 S. Ct. 609].) The right of access to the courts is also "founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights." (Wolff v. McDonnell (1974) 418 U.S. 539, 579 [41 L. Ed. 2d 935, 94 S. Ct. 2963] [state's duty to provide legal assistance to prison inmates extends to civil rights cases as well as to habeas corpus proceedings and, adequacy of legal assistance had to be assessed where prison regulation prohibited fellow inmates, other than the offender appointed by the warden, from providing legal assistance].) "[P]ersons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes `access of prisoners to the courts for the purpose of presenting their complaints.' [Citations.]" (Cruz v. Beto (1972) 405 U.S. 319, 321 [31 L. Ed. 2d 263, 92 S. Ct. 1079] (per curiam) [cause of action under 42 U.S.C. § 1983]; see Johnson v. Avery (1969) 393 U.S. 483, 485 [21 L. Ed. 2d 718, 89 S. Ct. 747] ["Since the basic purpose of the writ [of habeas corpus] is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed."], 490 [invalidating regulation prohibiting inmates from assisting or advising other prisoners with preparation of habeas corpus petitions "unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief"].) Persons committed as SVP's also enjoy the constitutional right of petition, which encompasses the right of court access.
(28) Sections 6605 and 6608, whether considered individually or together, do not, however, impair the constitutional right of committed persons to petition the government for redress of grievances. Section 6605's preauthorization requirement is not equivalent to the administrative regulation held unconstitutional in Ex parte Hull. The petitioner in Ex parte Hull (1941) 312 U.S. 546 [85 L. Ed. 1034, 61 S. Ct. 640] was a state prisoner. A prison official had refused to notarize Hull's petition for writ of habeas corpus and accept it for mailing and prison guards had confiscated the petition after Hull had delivered the papers to his father for mailing outside the prison. (Id. at pp. 547-548.) Hull was eventually able to pass a document to the Supreme Court through his father. (Id. at p. 548.) In response to the Supreme Court's order to show cause why leave to file a petition for writ of habeas corpus should not be granted, the state prison warden invoked a regulation that provided: "`All legal documents, briefs, petitions, motions, habeas corpus proceedings and appeals will first have to be submitted to the institutional *644 welfare office and if favorably acted upon be then referred to Perry A. Maynard, legal investigator to the Parole Board, Lansing, Michigan. Documents submitted to Perry A. Maynard, if in his opinion are properly drawn, will be directed to the court designated or will be referred back to the inmate.'" (Id. at pp. 548-549.)
The Supreme Court in Hull held that the prison regulation was invalid because "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus." (Ex parte Hull, supra, 312 U.S. at p. 549.) The court stated: "Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine. [Citations.]" (Ibid.) In the present case, no administrative regulation limits a committed person's right to apply for habeas corpus relief in federal or state court. (See § 7250 [any person who has been committed to a state hospital for the mentally disordered is entitled to a writ of habeas corpus upon proper application].)
Section 6605 creates a conditional statutory right for committed persons to petition the court for conditional release or an unconditional discharge based upon the outcome of their mandatory annual mental health examination. A petition under section 6605 must be authorized by the Director of Mental Health following a determination by the DMH that "either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community ...." (§ 6605, subd. (b).) Section 6605 is not an administrative rule or regulation and it does not interfere with access to habeas corpus relief.
Section 6608 similarly creates a conditional statutory right for persons committed as an SVP to petition the court for conditional release or an unconditional discharge, but without the recommendation or concurrence of the Director of Mental Health. It likewise does not impede petitions for writ of habeas corpus.
Prisoner cases involving the right of petition and court access have focused on case preparation and filing of legal documents. The Supreme Court held in Bounds v. Smith (1977) 430 U.S. 817, 828 [52 L. Ed. 2d 72, 97 S. Ct. 1491] that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." (Lewis v. Casey (1996) 518 U.S. 343, 354 [135 L. Ed. 2d 606, 116 S. Ct. 2174].) "The right that Bounds *645 acknowledged was the (already well-established) right of access to the courts. E.g., Bounds, 430 U.S., at 817, 821, 828 [97 S.Ct. at pp. 1492-1493, 1494, 1498]. In the cases to which Bounds traced its roots, [the Supreme Court] had protected that right by prohibiting state prison officials from actively interfering with inmates' attempts to prepare legal documents, e.g., Johnson v. Avery, 393 U.S. 483, 484, 489-490 [21 L. Ed. 2d 718, 89 S. Ct. 747, 748, 750-751] (1969), or file them, e.g., Ex parte Hull, 312 U.S. 546, 547-549 [85 L. Ed. 1034, 61 S. Ct. 640, 640-642] (1941) . . . ." (Id. at p. 350.) "It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief. [Citation.]" (Johnson v. Avery, supra, 393 U.S. at p. 488; see Lewis v. Casey, supra, 518 U.S. at p. 354 [federal Constitution does not require the "permanent provision of counsel" to the prisoner population]; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [95 L. Ed. 2d 539, 107 S. Ct. 1990] [declining to hold "that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions"].)
In Lewis v. Casey, the Supreme Court disclaimed statements in Bounds that "appear[ed] to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court." (Lewis v. Casey, supra, 518 U.S. at p. 354.) Appellant has failed to cite any authority indicating that the constitutional right of an involuntarily committed person to petition the government includes a right to present a wholly frivolous claim (id. at p. 353, fn. 3 ["Depriving someone of a frivolous claim ... deprives him of nothing at all ...."]) or a right to receive the assistance or an appointment of a medical expert in order to petition effectively.[8] In addition, appellant has made no showing of actual injury. (Lewis v. Casey, supra, 518 U.S. at pp. 349 ["requirement that an inmate alleging a violation of Bounds must show actual injury derives ultimately from the doctrine of standing ..."], 351 [to establish a denial of meaningful access to the courts, an inmate must show actual injury, such as by demonstrating that "alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim"].)
(29) As Justice Powell observed in his concurring opinion in Bounds, the majority opinion "recognize[d] that a prison inmate has a constitutional right of access to the courts to assert such procedural and substantive rights as may be available to him under state and federal law" but it "does not purport to pass on the kinds of claims that the Constitution requires state or federal courts to hear." (Bounds v. Smith, supra, 430 U.S. at p. 833; see Christopher v. *646 Harbury (2002) 536 U.S. 403, 415 [153 L. Ed. 2d 413, 122 S. Ct. 2179] [The constitutional right of access to courts is "ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court"].) The constitutional right to petition does not dictate what statutory rights must be provided to involuntarily committed persons wishing to obtain judicial review of their commitments.
The order of commitment filed October 22, 2008, is affirmed.
Rushing P. J., and Premo, J., concurred.
NOTES
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] A number of issues with respect to the constitutionality of the SVPA are presently pending before the Supreme Court. (See People v. McKee, review granted July 9, 2008, S162823 [lead case includes due process, equal protection, and ex post facto issues]; People v. Johnson, review granted Aug. 13, 2008, S164388; People v. Riffey, review granted Aug. 20, 2008, S164711; People v. Boyle, review granted Oct. 1, 2008, S166167; People v. Garcia, review granted Oct. 16, 2008, S166682; People v. Force, review granted Apr. 15, 2009, S170831.)
[3] We take judicial notice of the Voter Information Guide prepared by the Secretary of State for the November 7, 2006 General Election insofar as it concerns Proposition 83. (Evid. Code, §§ 452, 459.)
[4] With respect to statutes, article IV, section 9 of the California Constitution provides in pertinent part: "A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void."
[5] Any future judicial interpretation of the amended SVPA will presumably be informed by the rule of statutory construction requiring courts to avoid interpretations raising constitutional doubts. (See People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 509 [53 Cal. Rptr. 2d 789, 917 P.2d 628].)
[6] Section 7250 provides in part: "Any person who has been committed is entitled to a writ of habeas corpus, upon a proper application made by the State Department of Mental Health or the State Department of Developmental Services, by that person, or by a relative or friend in his or her behalf to the judge of the superior court of the county in which the hospital is located ...."
[7] Penal Code section 1026.1 provides: "A person committed to a state hospital or other treatment facility under the provisions of Section 1026 shall be released from the state hospital or other treatment facility only under one or more of the following circumstances: [¶] (a) Pursuant to the provisions of Section 1026.2. [¶] (b) Upon expiration of the maximum term of commitment as provided in subdivision (a) of Section 1026.5, except as such term may be extended under the provisions of subdivision (b) of Section 1026.5. [¶] (c) As otherwise expressly provided in Title 15 (commencing with Section 1600) of Part 2."
[8] Nevertheless, a committed person has a statutory right to an expert in connection with a hearing on a section 6605 petition: "The committed person also shall have the right ... to have experts evaluate him or her on his or her behalf. The court shall appoint an expert if the person is indigent and requests an appointment." (§ 6605, subd. (d).)
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260415/
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178 Cal. App. 4th 1051 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
RAUL ANTHONY LEAL, Defendant and Appellant.
No. H031174.
Court of Appeals of California, Sixth District.
October 29, 2009.
*1055 Law Offices of Jonathan E. Berger, Jonathan E. Berger; Law Offices of George L. Schraer and George L. Schraer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan and Aileen Bunney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DUFFY, J.
Following denial of his motion to suppress evidence (Pen. Code, § 1538.5),[1] defendant Raul Anthony Leal pleaded no contest to obliterating the identification of a firearm (§ 12090). The trial court placed defendant on probation for three years subject to various conditions. On appeal, defendant contended that the trial court erred by denying his motion to suppress. He argued that the search conducted incident to his arrest was beyond the scope of the arm's reach rule of Chimel v. California (1969) 395 U.S. 752 [23 L. Ed. 2d 685, 89 S. Ct. 2034]. He also challenged the imposition of a probation condition that he may not be present at any court proceeding or in any courthouse building unless he is scheduled for a court hearing or has the *1056 permission of his probation officer. He contended that the condition was unreasonable and violated his constitutional rights to travel and to attend court proceedings.
This court reversed the judgment on the basis of defendant's first claim. The California Supreme Court granted the People's petition for review and deferred action pending the United States Supreme Court's disposition of Arizona v. Gant (2009) 556 U.S. ___ [173 L. Ed. 2d 485, 129 S. Ct. 1710]. On June 10, 2009, after the United States Supreme Court handed down its decision in Gant, the California Supreme Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Gant. We have received supplemental letter briefs from the parties addressing Gant's applicability to this case. We will rely on our prior reasoning and, for the reasons stated in our prior opinion, reverse the judgment. Essentially, we will reiterate much of our prior opinion but will discuss Gant and the parties' supplemental letter briefs in a new section.
In sum, because we find that the search conducted following defendant's arrest violated the Fourth Amendment to the United States Constitution, a violation of sufficient gravity to entitle him to the remedy of suppression of the evidence, we will reverse the judgment.
BACKGROUND
By a complaint filed August 11, 2005, defendant was charged with obliterating the identification of a firearm (§ 12090) and actively participating in a criminal street gang (§ 186.22, subd. (a)), both felonies. The complaint further alleged that the section 12090 offense was committed for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) On December 21, 2005, defendant filed a motion to suppress evidencea handgunseized from his house on the day of his arrest. On February 9, 2006, the trial court heard the motion in conjunction with the preliminary examination. The testimony at that hearing was as follows.
Salinas Police Sergeant David Shaw went to defendant's house around 4:48 p.m. on August 1, 2005, with four other officers in order to serve two outstanding misdemeanor arrest warrants on defendant. Two officers went to the back of the house while Shaw and two other officers went to the front. When Officer Schwaner knocked on the front door, they heard a male utter from inside the house, words similar to "who's there?" Officer Schwaner identified himself as a Salinas police officer. No further response came from inside the house for quite some time, but one of the officers covering the back of the house heard a male voice coming from inside the back of the house shortly after the officers knocked on the front door.
*1057 The officers continued to knock on the front door and windows and called for defendant to emerge. They were aware that defendant's grandmother had reported that defendant might be armed with a gun and using drugs. Also, the police had heard that defendant "was upset with his daughter, who had told the grandmother that he was a gang member."
After almost 45 minutes, defendant opened the door and stood in the threshold. Officer Schwaner told him to turn around, handcuffed him, and led him away, explaining that there were warrants for his arrest. As Officer Schwaner was securing defendant in a patrol car about 30 to 38 feet away, the other officers entered the house to make sure nobody else was inside it.
After finding nobody else inside the house, Sergeant Shaw searched the area immediately adjacent to where defendant was standing when he was taken into custody. A small rocking recliner sat about a foot from where defendant had been standing at the front door. A sweatshirt was on the chair. Sergeant Shaw lifted the sweatshirt and found a semiautomatic pistol tucked between the arm and the cushion of the recliner. The pistol, which was loaded and had had its serial numbers removed, was found about two or three minutes after defendant was arrested. No weapons were found on defendant.
After the trial court denied defendant's motion to suppress, he waived further hearing on the substantive charges and the court held him to answer. An information was filed February 14, 2006, alleging the same charges as had the complaint. On April 11, 2006, defendant renewed his motion to suppress and the court considered it at a hearing on April 21, 2006.
The trial court recognized that the search was problematic under the Fourth Amendment to the United States Constitution, but ultimately found it valid. In so doing, it relied in part on federal circuit court decisions. The court stated, as relevant here: "I agree . . . that there was no actual danger for the officers at the time that this search of the chair actually took place. [¶] . . . [¶] [But the prosecutor] is exactly correct that what the federal courts are trying to do is set out a rule that the officers comprehend . . . . It has to be within the grabbing area of the arrestee and take place reasonably contemporaneous with the arrest. . . . [¶] . . . [W]as it reasonable at that point for the detective to lift up the shirt and discover the gun[?] I think, under the circumstances here, where it is a very brief period of time where it's in conjunction with a protective sweep where they had information that the defendant may well have been in possession of a weapon and/or drugs that it was unreasonable [sic] to infer [sic] the detective to pick up the shirt. [¶] Seems to me what's really happening here . . . was a second basis besides officer safety, [and] that is preservation of the evidence. Seems to me the federal courts are now moving to extend the preservation aspect of this. For instance, the gun is not *1058 only a safety issue, it is also contraband and also the drugs, if they were there, would have been contraband. I think they're giving the officers more latitude to seize contraband where it's right there where they arrest the person.[¶] . . . [¶] It sounds from the description that they did a protective sweep to make sure no one else was around, then, [lo] and behold, there is a gun which they had reason to believe might be there."
An amended information was filed October 11, 2006, adding a felony charge of possession of a firearm with identification numbers removed (§ 12094, subd. (a)), with an allegation that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (d)). On November 30, 2006, defendant pleaded no contest to the section 12090 charge on condition that the remaining counts and gang allegations be dismissed, and that he be placed on probation.
DISCUSSION
Because it violated the Fourth Amendment to the United States Constitution to search defendant's premises without a warrant after he had been removed to a police car and the police had ascertained that the premises were secure, and because the conduct of the police in searching defendant's residence was sufficiently at odds with established Fourth Amendment principles to entitle defendant to the suppression of the evidence thereby obtained, we must reverse the judgment.
I. Facts
The facts relevant to our disposition of defendant's Fourth Amendment claim are these:
The police officers, bearing an arrest warrant for two misdemeanors[2] but no search warrant, demanded that defendant emerge from his house so they could arrest him.
Defendant opened his front door and an officer handcuffed him and further secured him by leading him away from the premises and confining him in a police car in the house's driveway. The officer escorted defendant some 30 to 38 feet from his place of arrest to his place of confinement.
Several police officers searched defendant's "very small residence" and found no one else in it.
*1059 Two or three minutes later, with the scene secure, officers' safety assured, and defendant unable to reach or destroy any evidence in the house, a police officer searched the area near the front doorthe site of defendant's arrest and found the handgun under a sweatshirt. The police still lacked a search warrant.
II. Analysis
A. Standard of Review
(1) "In ruling on a motion to suppress [§ 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Hoyos (2007) 41 Cal. 4th 872, 891 [63 Cal. Rptr. 3d 1, 162 P.3d 528].) On independent review of the ultimate question, i.e., the validity of the state's action under the Fourth Amendment to the United States Constitution, i.e., we conclude that it was invalid.[3]
B. Substantive Law
1. The Law Prior to Arizona v. Gant
(2) In our prior opinion, which we rendered before the United States Supreme Court's decision in Arizona v. Gant, supra, 556 U.S. ___ [129 S. Ct. 1710], we analyzed the case in these terms: "The Fourth Amendment provides that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' `At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' [Citation.] With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." (Kyllo v. United States (2001) 533 U.S. 27, 31 [150 L. Ed. 2d 94, 121 S. Ct. 2038].)
(3) The limited scope of one of the "few exceptions" (Kyllo v. United States, supra, 533 U.S. at p. 31) to the warrant requirement is set forth in Chimel v. California, supra, 395 U.S. 752, which outlines the "proper extent" *1060 of "the `search incident to arrest' principle" (id. at p. 762). First, to effect the arrest in a safe manner, "it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." (Id. at p. 763.) Second, the police may conduct a "search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." (Ibid.) For the foregoing purposes only, "the area into which an arrestee might reach in order to grab a weapon or evidentiary items"i.e., "the area `within his immediate control'"is "governed by a like rule." (Ibid.)
The handgun found in defendant's home was found in the area that was under his immediate control when he was arrested. The question, though, is whether it was under his immediate control when he was confined in a police car in handcuffs at some distance from the premises. The answer, plainly, is no, and thus the warrantless search was unreasonable under the Fourth Amendment. "`Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.'" (Chambers v. Maroney (1970) 399 U.S. 42, 47 [26 L. Ed. 2d 419, 90 S. Ct. 1975].) "[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house" (ibid.)nor when the suspect is safely lodged in a police car outside the home.
(4) A different rule of reasonableness applies when the police have a degree of control over a suspect but do not have control of the entire situation. In such circumstancese.g., in which third parties known to be nearby are unaccounted for, or in which a suspect has not yet been fully secured and retains a degree of ability to overpower the police or destroy evidencethe Fourth Amendment does not bar the police from searching the immediate area of the suspect's arrest as a search incident to an arrest. (See Arizona v. Gant, supra, 556 U.S. at p. ___, fn. 2 [129 S.Ct. at p. 1731, fn. 2] (dis. opn. of Alito, J.).)
People v. Summers (1999) 73 Cal. App. 4th 288, 289-291 [86 Cal. Rptr. 2d 388], illustrates the point. The suspect was only in the process of being removed (id. at p. 290), "there was a female present who was not previously known to the officers," and there was "another male roommate somewhere nearby" (ibid.).
(5) This case is different. In contrast to Summers, in which the suspect "was still being removed" (People v. Summers, supra, 73 Cal.App.4th at p. 291), "one roommate was present and free of police control," and "another was unaccounted for" (ibid.), the police here had determined that defendant was the only one on the premises during his arrest and they had safely *1061 confined him outside his house and fully secured the scene. Neither he nor anyone else was in a position to jeopardize the officers' safety or destroy evidence. Summers properly stated the general rule, namely that when "there is no threat to the officers because the suspect has been immobilized [and] removed, and no one else is present, it makes no [constitutional] sense that the place he was removed from remains subject to search merely because he was previously there." (Id. at pp. 290-291.) Summers departed from that rule only because the circumstances the case presented were fluid, unstable, and dangerous.
The People rely on U.S. v. Hudson (9th Cir. 1996) 100 F.3d 1409, 1412-1413, 1418-1419, U.S. v. Nohara (9th Cir. 1993) 3 F.3d 1239, 1243, U.S. v. Turner (9th Cir. 1991) 926 F.2d 883, 888, and People v. Rege (2005) 130 Cal. App. 4th 1584 [30 Cal. Rptr. 3d 922]. All of these cases honor Chimel in the breach, paying homage to Chimel while going beyond what the Fourth Amendment permits under Chimel. (E.g., Hudson, at p. 1419 [stating that a "search may be conducted shortly after the arrestee has been removed from the area" and announcing another constitutionally questionable rule, namely that a warrantless search of the entire room in which the person was arrested is valid]; Nohara, at p. 1243 [tautologically stating that "events between the time of the arrest and search must not render the search unreasonable" and questionably holding that a search is permissible two to three minutes after the arrest with the suspect removed from the room].) Similarly, Turner, at pages 886-888, approved a warrantless search of part of a room after the suspect had been handcuffed and removed, partly on the ground that the Constitution should not be "`entirely at odds with safe and sensible police procedures'" (id. at p. 888), but showed unease, stating that "[t]his holding is limited to the narrow facts of a short time span and the arrestee's close proximity" (id. at fn. 2).
(6) The reasoning of U.S. v. Turner, supra, 926 F.2d 883, is flawed for reasons set forth in Justice Scalia's concurring opinion in Thornton v. United States (2004) 541 U.S. 615 [158 L. Ed. 2d 905, 124 S. Ct. 2127]. "If `sensible police procedures' require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search." (Id. at p. 627 (cone. opn. of Scalia, J.).) Justice Scalia's opinion also disposes of the view in People v. Rege, supra, 130 Cal. App. 4th 1584, that police must be "`remove[d] . . . from the horns of a dilemma which would require them either to [forgo] search incident to arrest, or to keep the suspect at least figuratively within arm's reach while conducting such a search, thereby assuring the very danger it was meant to prevent.'" (Id. at p. 1590.) And we are not the first court to decline to rely on U.S. v. Hudson, supra, 100 F.3d 1409. (State v. LaMay (2004) 140 Idaho 835, 840 [103 P.3d 448, 453].)
*1062 The fundamental flaw in the analysis contained in the cases we have criticized "is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government's right; it is an exceptionjustified by necessityto a rule that would otherwise render the search unlawful." (Thornton v. United States, supra, 541 U.S. at p. 627 (conc. opn. of Scalia, J.).) Agreeing with Justice Scalia, U.S. v. Yanez (S.D.Tex. 2007) 490 F. Supp. 2d 765, stated: "The twin rationales of Chimel make clear that this doctrine is an exception to the warrant requirement borne of necessity for the preservation of probative evidence and officer safety." (Id. at p. 776.)
The People further rely on U.S. v. Fleming (7th Cir. 1982) 677 F.2d 602, 605-608. Like U.S. v. Turner, supra, 926 F.2d at page 888 (which relied on Fleming), Fleming held that it "does not make sense to prescribe a constitutional test that is entirely at odds with safe and sensible police procedures. Thus handcuffing [one of two suspects] and having reinforcements enter [the other suspect's] house should not be determinative, unless we intend to use the Fourth Amendment to impose on police a requirement that the search be absolutely contemporaneous with the arrest, no matter what the peril to themselves or to bystanders." (Fleming, at p. 607, fn. omitted.)
Fleming's reasoning must be understood in the context of the circumstances that case presented. One suspect had been handcuffed and taken out to the street but not far away from the arrest scene. (U.S. v. Fleming, supra, 677 F.2d at p. 605.) The arrest of both suspects had involved a pursuit and a "scuffle." (Ibid.) Events had unfolded rapidly and the scene was still not entirely secure despite the handcuffing of one suspect and the arrest of the other, whose continued ability to resist Fleming does not discuss (see id. at pp. 605-607). "`Handcuffs are a temporary restraining device; they limit but do not eliminate a person's ability to perform various acts. They obviously do not impair a person's ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person's ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person's size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself.'" (U.S. v. Yanez, supra, 490 F.Supp.2d at p. 776.) We agree with Fleming but believe the decision is limited to its facts.
*1063 (7) It has been said that the equal protection clause of the Fourteenth Amendment, "lest we lose sight of the forest for the trees, does not require what it barely permits." (Coalition for Economic Equity v. Wilson (9th Cir. 1997) 122 F.3d 692, 709.) Similarly, the Fourth Amendment does not force the police to do what it barely allows them to do. The police are required to arrest suspects within the limits legally permitted, and they must do all they can to ensure their safety and the preservation of potential evidence during a lawful arrest. Thereafter, if the police persuade an impartial judge to issue a search warrant, they may search the scene. Only if the situation remains unstable, i.e., police officers must arrest someone but by doing so unavoidably place themselves in personal peril or incur the risk of losing evidence, may the police conduct a warrantless search in the suspect's immediate vicinity during the arrest. (Chambers v. Maroney, supra, 399 U.S. at p. 47; Chimel v. California, supra, 395 U.S. at p. 763.) In other words, the law does not invite the police to imperil themselves or risk the loss of evidence simply to avoid the warrant requirement; rather, it tolerates, despite the Fourth Amendment's guarantee against warrantless searches, forgoing the warrant requirement when, during a lawful arrest, circumstances beyond the control of the police urgently require a protective search.
Accordingly, we do not agree with the analysis found in People v. Rege, supra, 130 Cal. App. 4th 1584; rather, we agree with People v. Summers, supra, 73 Cal. App. 4th 288. As for the federal circuit decisions we have criticized, we need not follow them (People v. Mejia (2007) 155 Cal. App. 4th 86, 99 [65 Cal. Rptr. 3d 776]) and will not do so.
(8) "The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search." (Franks v. Delaware (1978) 438 U.S. 154, 164 [57 L. Ed. 2d 667, 98 S. Ct. 2674].) Because the search of defendant's house did not fall within the scope of the exception delineated in Chimel v. California, supra, 395 U.S. 752, the search violated the Fourth Amendment.
2. Effect of Arizona v. Gant; Remedy
As noted, the California Supreme Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Arizona v. Gant, supra, 556 U.S. ___ [129 S. Ct. 1710].
Defendant argues that nothing in Gant undermines the reasoning of our prior opinion, in which we found the search unlawful. In substance, he urges that we adhere to our prior reasoning.
*1064 For their part, the People acknowledge that the search in this case would have violated the Fourth Amendment if it had taken place after the decision in Gant. They argue, however, that because the search preceded Gant, it was valid under the "broad authority" the law conferred on police actions in these circumstances prior to Gant. They further argue that, under Herring v. United States (2009) 555 U.S. ___ [172 L. Ed. 2d 496, 129 S. Ct. 695], the exclusionary rule should not be applied to suppress the evidence of the altered firearm even if we adhere to our prior reasoning that there was a Fourth Amendment violation.
(9) Nothing in Gant derogates from our prior reasoning; rather, it reinforces it. In the main, Gant deals with an obliquely different area of Fourth Amendment law than does this case. Gant clarified the scope of the permissibility of police searches of vehicles following an arrest and the safe confining of the arrestee to a nearby police car. The case has little bearing on this one, except that Gant's reaffirmation of Chimel v. California, supra, 395 U.S. 752, is congruent with our interpretation of Chimel. "In Chimel, we held that a search incident to arrest may only include `the arrestee's person and the area "within his immediate control"construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' [Citation.] That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. . . . If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." (Arizona v. Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1716].)
Bearing in mind that Gant, to the extent it is relevant here, only adds new weight to our conclusion that the police violated defendant's Fourth Amendment rights, we turn to the People's argument that even if that is so, defendant is not entitled to the remedy of suppression of the firearm evidence.
(10) "The exclusionary rule allows `[t]he criminal . . . to go free because the constable has blundered.' [Citation.] . . . `[T]he purpose of the exclusionary rule "is to deterto compel respect for the constitutional guaranty in the only effectively available wayby removing the incentive to disregard it." [Citation.]'" (Wiley v. County of San Diego (1998) 19 Cal. 4th 532, 541 [79 Cal. Rptr. 2d 672, 966 P.2d 983].)
*1065 Nevertheless, because the cost to society of freeing a known criminal is high, availability of the ultimate remedy, i.e., suppressing the use of the evidence obtained through a Fourth Amendment violation, is constrained. (See generally Herring v. United States, supra, 555 U.S. ___ [129 S. Ct. 695].)
The Fourth Amendment does not contain a right to have otherwise admissible evidence excluded from use against oneself. Instead there is a "judicially created rule" (Herring v. United States, supra, 555 U.S. at p. ___ [129 S.Ct. at p. 699]) mandating such exclusion as necessary "`to safeguard Fourth Amendment rights generally through its deterrent effect'" (ibid.). It is applied when the cost of doing so is justified by a sufficient likelihood that the remedy will deter future particularly undesirable conduct by the state, but only then. (See id. at pp. ___ - ___ [129 S.Ct. at pp. 700-702].) In other words, whether an individual is entitled to have unlawfully seized evidence excluded in trial proceedings "turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct." (Id. at p. ___ [129 S.Ct. at p. 698].) "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." (Id. at p. ___ [129 S.Ct. at p. 702].)
(11) Under Herring v. United States, supra, 555 U.S. ___ [129 S. Ct. 695], evidence seized in violation of the Fourth Amendment is to be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer (555 U.S. at p. ___ [129 S.Ct. at p. 703]), a court finds that the police have engaged in "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence" (id. at p. ___ [129 S.Ct. at p. 702]; see also id. at p. ___ [129 S.Ct. at p. 703]; cf. id. at p. ___ [129 S.Ct. at p. 704] [concluding paragraph contrasting systemic error and recklessness with negligence but not mentioning gross negligence]).
Recurring or systemic negligence is not at issue here, so whether defendant is entitled to the remedy of suppressing evidence turns on whether the action of the police in searching his residence after confining him securely in a police car was otherwise sufficiently unsupportable under the Fourth Amendment.
The People state that under the current state of the law, i.e., the decision in Arizona v. Gant, supra, 556 U.S. ___ [129 S. Ct. 1710], defendant would be entitled to have the firearm evidence suppressed. They argue, however, that police conduct here cannot be said to be grossly negligent or worse when the state of the law prior to Gant was, in their view, muddled. (See id. at p. ___, *1066 fn. 11 [129 S.Ct. at p. 1723, fn. 11] [because a mistakenly liberal reading of police authority to search automobiles following an arrest was "widely accepted" prior to Gant, "the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding"].)[4]
(12) Contrary to the People's view, however, the law was not sufficiently muddled at the time of the search for us to support their view about the police search of defendant's residence without a warrant. As we have explained, various federal Court of Appeals decisions departed from Chimel v. California, supra, 395 U.S. 752, but Chimel, which is binding on California police officers, itself was clear. The search of defendant's residence was entirely at odds with Chimel and with basic Fourth Amendment principles. It is bedrock Fourth Amendment law that the police may not rummage through a person's home without a warrant. As stated, "`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" (Kyllo v. United States, supra, 533 U.S. at p. 31.)
(13) The violation was serious enough to warrant giving substance to the Fourth Amendment's promise of protection from state intrusion by suppressing the firearm evidence against defendant. The need "`"to compel respect for the constitutional guaranty in the only effectively available way"'" (Wiley v. County of San Diego, supra, 19 Cal.4th at p. 541) is at its acme when a police search of one's home is involved.
Accordingly, we will direct the trial court to enter a new order granting defendant's motion to suppress the firearm evidence.
*1067 3. Validity of Probation Condition
Because we reverse the judgment on the foregoing grounds, we need not address, and do not address, defendant's claim that a probation condition was invalid.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court with directions to permit defendant to withdraw his no-contest plea, to vacate its order denying the motion to suppress, to enter a new order granting the motion to suppress, and to undertake any other necessary proceedings in accordance with applicable law.
McAdams, J., concurred.
BAMATTRE-MANOUKIAN, Acting P. J., Concurring.
I concur in the judgment only. When this court's decision was originally filed in February 2008, I wrote a dissent in which I stated: "The officers acted reasonably and out of concern for their safety when they handcuffed and moved defendant and then delayed the search for two to three minutes in order to do a protective sweep of the residence. The officers were aware that defendant was reportedly possibly armed with a firearm and using drugs, they did not take defendant far away, and they did not unreasonably delay before conducting the search. [Citations.] The loaded pistol was found in the recliner about two or three minutes after defendant was arrested and while defendant was still at the scene of the arrest. [Citations.] The officers were not required `either to forego search incident to arrest, or to keep [defendant] at least figuratively within arm's reach [of the recliner] while conducting . . . a search' of it. [Citations.] To keep defendant at the exact location of the arrest while conducting an absolutely contemporaneous Chimel search would assure the very danger the search was meant to prevent."
In Arizona v. Gant (2009) 556 U.S. ___, ___ [173 L. Ed. 2d 485, 129 S. Ct. 1710], the United States Supreme Court held that, although "officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle's recent occupant justify a search" (556 U.S. at p. ___ [129 S.Ct. at p. 1721]), "the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee *1068 is unsecured and within reaching distance of the passenger compartment at the time of the search." (556 U.S. at p. ___ [129 S.Ct. at p. 1719], fn. omitted.) In light of the decision in Gant and our Supreme Court's direction to reconsider this cause in light of Gant, I conclude that defendant's motion to suppress must now be granted.
NOTES
[1] All further statutory references are to the Penal Code.
[2] The parties do not describe the misdemeanors on which the arrest warrants were based, and we have not seen the offenses described in the record. There is no reason to believe that the misdemeanors were gun related.
[3] California law follows Fourth Amendment standards. (People v. Robles (2000) 23 Cal. 4th 789, 794 [97 Cal. Rptr. 2d 914, 3 P.3d 311].)
[4] In turn, defendant brings to our attention two recent decisions that have held that evidence obtained under searches and seizures unlawful under Gant must be excluded notwithstanding Herring. (U.S. v. Gonzalez (9th Cir. 2009) 578 F.3d 1130; U.S. v. Buford (M.D.Tenn. 2009) 623 F. Supp. 2d 923.) However, those cases are, as defendant notes, automobile cases whose resolution is squarely governed by Arizona v. Gant, supra, 556 U.S. ___ [129 S. Ct. 1710]. The searches and seizures in those cases were proper under pre-Gant law but were rendered invalid following Gant, and the courts had to decide, in the words of Gonzalez, whether to "appl[y] the good faith exception to the scenario we face: a search [validly] conducted under a then-prevailing interpretation of a Supreme Court ruling, but rendered unconstitutional by a subsequent Supreme Court ruling announced while the defendant's conviction was on direct review." (Gonzalez, supra, at p. 1132; see Buford, supra, at pp. 925-926.) The search of defendant's residence, by contrast was never valid, either before or after Gant. We agree with defendant that his case is governed by Chimel v. California, supra, 395 U.S. 752, and reiterate that Gant only reinforced the reasoning and holding of Chimel. Accordingly, we need not further consider Gonzalez or Buford.
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632 F. Supp. 858 (1985)
Andrew ADAMS, By his parent, Susan ADAMS, and Susan Adams, Plaintiffs,
v.
Robert A. HANSEN, Superintendent of the Napa Valley Unified School District; Napa Valley Unified School District; Austin Kelly, Director of Special Education, Napa Valley Unified School District; Jana Jack, Lynne Vaughan, Craig Templeton, Allan Knudsen, John Wagenknecht, Linda Mallett, Dorothy Searcy, Jay Goetting, individually and as members of the Board of Education of the Napa Valley Unified School District; The State of California Department of Education, Defendants.
No. C-85-3089 RFP.
United States District Court, N.D. California.
October 21, 1985.
*859 *860 Kathryn D. Dobel, Berkeley, Cal., for plaintiffs.
Diana K. Smith and Mark G. Intrieri, Breon, Galgani, Godino & O'Donnell, San Francisco, Cal., for defendant Napa Valley Unified School Dist.
John Klee, Deputy Atty. Gen., San Francisco, Cal., for defendant State of Cal. Dept. of Educ.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PECKHAM, Chief Judge.
BACKGROUND
This action involves a dispute about the appropriate education for Andrew Adams. Andy is a fifth-grade student who resides within the geographical boundaries of the Napa Valley Unified School District ("NVUSD" or "District"). He is nearly twelve years old, and was enrolled in District schools for six years. During that time, he repeated Kindergarten and third grade. He was identified at the end of the second grade as an individual with exceptional needs entitled to special education and related services under federal and state law. Andy is of average intelligence, but has a learning disability, specifically identified as "specific language disability," but more commonly referred to as dyslexia.
During his two years in the third grade, Andy was enrolled in a regular class, and had an "individualized education program" ("IEP") that called for daily contact with a resource specialist. From September 1982 through March 1984, he was pulled out of his regular class for up to sixty minutes a day to work with the resource specialist or an aide. In March 1984, pursuant to his mother's request for more intense services, he began to work with the resource specialist *861 or aide for up to ninety minutes each day.
In Spring 1984, the parties met to discuss Andy's placement for the 1984-85 school year. In response to Susan Adam's request that her son be offered a non-public placement, the District suggested that she visit some of the special day classes within the district. The District also agreed to send district personnel to the Charles Armstrong School, a school that Mrs. Adams believed would provide her son with an appropriate education. Plaintiff visited Alta Heights School and later visited El Centro School. District personnel visited the Charles Armstrong School. By June 12, 1984, the parties had not resolved the issue of Andy's placement.
On June 20, 1985, Susan Adams unilaterally enrolled Andy in the Charles Armstrong School. She did not attend a meeting scheduled with district personnel on that day. On September 18, 1985, Mrs. Adams filed for a due process hearing, and mediation between the parties began.
During the mediation process, the parties reached agreement on all issues within the IEP, except the issue of when the plan would begini.e., when Andy would return to the District. A due process hearing was held, and the state hearing officer found that the District's proposed placement was appropriate. Plaintiffs seek review of that decision pursuant to section 615(e) of the Education of the Handicapped Act, 20 U.S.C. § 1415(e).
FINDINGS OF FACT
The crux of the controversy is whether the District has an appropriate placement for Andy. There are several collateral issues that are important if the District has such a placement. The court will consider those first.
A. Mrs. Adams Unilateral Decision to Place Andy at the Charles Armstrong School
Defendants contend that the Susan Adams was not justified in removing her son from the District and unilaterally placing him in the Charles Armstrong School. They assert that, although Andy was progressing in the Resource Specialist (RS) Program, he was offered a special-day-class ("SDC") placement in the Spring of 1984. Defendants also assert that the IEP process was prematurely aborted by Susan Adams, depriving them of an opportunity to place Andy in a class where he could get an appropriate education.
Mrs. Adams, on the other hand, contends that the District had only recommended that Andy continue in the RS Program. Since she believed that the RS Program had not been productive for Andy, Mrs. Adams felt that it was necessary for her to place him elsewhere. She states that Andy was not offered an SDC placement until mediation in November 1985. Her testimony is corroborated by that of Ernest Wing, her advocate at the IEP meetings.
Upon a review of the testimony at the due process hearing and at trial, the court finds that the testimony of District witnesses is inconsistent, contradictory, and plagued by lapses in memory. It therefore resolves these disputed factual issues in favor of the more consistent and credible testimony of Susan Adams and Ernest Wing. Based on this testimony, and on consideration of assessment materials offered by both sides, the court finds: (1) that Andy did not make sufficient academic progress in the two years that he was in the RS Program; (2) that in spite of Andy's lack of progress in the RS program, it was the program recommended by the District on June 12, 1985; and (3) that the District did not recommend an SDC placement until after Andy had been enrolled in the Charles Armstrong School.
1. Ineffectiveness of Resource Specialist Program
The ineffectiveness of the Resource Specialist Program is illustrated by Andy's lack of progress during the two years that he was in third grade. As measured by the Woodcock-Johnson battery of tests, Andy's academic growth over a period of 20 months was only 4 months in total reading, *862 and 8 months in math. When the same test was administered at the beginning of Andy's second year at the Charles Armstrong School, it indicated that Andy's growth in reading was more than 2 years for a similar period of time. This dramatic increase in Andy's academic rate of growth makes it clear that his prior lack of growth was due to the ineffectiveness of the RS Program.
The District offers Stanford Achievement Test ("SAT") scores as evidence that Andy made tremendous growth during the two years in third grade. Those scores suggest that Andy's growth in the first year of third grade was more than a year in reading and more than 2 years in both math and listening. His growth in the second year of third grade is shown to be almost 2 years in reading, more than a year in math, and 6 months in listening. The SAT scores show Andy as working above-grade level in all of these areas.
The SAT scores are contradicted by scores from other tests that are more consistent with each other, see Joint Exhibit 34; with the decision to keep Andy in third grade for an extra year; and with Andy's third-grade teacher's continued reservations, even after his second year in third grade, about his readiness for fourth grade. Moreover, Andy was measured against average third graders; and the District was unable to provide testimony that explained the effect of Andy's age and the extra year in third grade on the validity of the test scores. Plaintiff's expert witnesses, Arlee Maier and Ernest Wing, both testified that those factors would inflate the SAT scores. District personnel also indicated that other assessments, reflecting below-grade level achievement, were more accurate. See 3 Hearing Transcript 36 [hereinafter HT]; 5 HT 142; id. at 180.
2. Placement Recommended by the District
Even during the due process hearing, the District had a great deal of trouble keeping track of what it was and was not offering or recommending for Andy in terms of placement. After initially listing eight placements that would be available and appropriate for Andy, see 1 HT 34-36, including the RS Program and seven listed SDC's, the District later stated that the RS Program was not being offered, see 2 HT 138. As the hearing progressed, it became clear that the District was only recommending three programs: Alta Heights, El Centro, and Pueblo Vista Schools. Alta Heights was later withdrawn because of the teacher's health, and El Centro was withdrawn when a question arose as to whether the teacher there held appropriate credentials.
This type of inconsistency plagued the District's testimony about what programs were offered or recommended to Susan Adams. The district asserts that it offered an SDC placement in early Spring 1984. Yet, there is evidence that the team that assessed Andy at Mrs. Adams's request did not recommend at any IEP meeting that Andy be placed in an SDC. See 5 HT 204-05. Andy's third-grade teacher indicated that she had recommended a carefully chosen fourth-grade teacher and continuation in the RS Program. And, witnesses from both sides testified that Linda Barbour, a special education teacher in the diagnostic program who had helped assess Andy, had voiced the opinion that an SDC would be inappropriate because the students were more disabled than Andy. See 5 HT 207, 6 HT 60. There is also evidence that Robert Hansen, Superintendent of NVUSD, told Mrs. Adams that his staff did not believe that an SDC was an appropriate placement for Andy. See Joint Exhibit 18; see also 1 HT 128-29.
Throughout the state hearing and this trial, the District has maintained that either the RS Program or SDC would be appropriate for Andy. Given the District's equivocal position on what placement is appropriate for Andy, and the fact that the SDC's were shown to Mrs. Adams only in response to her request for a non-public placement, the court does not believe that Andy was offered an SDC placement in Spring 1984.
*863 A great deal of testimony centered around whether and what the District had recommended for placement at the last IEP meeting before Andy was enrolled in Charles Armstrong School. Both Susan Adams and Ernest Wing testified that the facilitator, Tom Spencer, had taken a poll, and that the District members had each recommended continuing the RS Program. Mr. Spencer confirmed that it was his usual practice to take such a poll, but that he did not remember the results. Other District-employed members did not remember the poll, the results, or their own recommendations. That meeting ended without goals being written and without a written statement about the recommended placement. The court finds that Mrs. Adam's account of the two-and-one-half hour meeting, which is supported by testimony from both Mr. Wing and Mr. Spencer, is credible. That is, the parties were unable to write goals and objectives, because the District continued to recommend the RS program, and Ms. Adams would not accept that recommendation.
Finally, the District points to a letter from Nancy Reinke to Mrs. Adams dated August 22, 1984, as evidence that the District offered an SDC placement before the 1984-85 school year began. See Joint Exhibit 51. Although this letter states that the "recommendation ... is that we consider a special class placement for Andy," it is not clear whether the reference is to a special day class, or merely to a carefully chosen class such as that recommended by Phyllis Payne. Moreover, even if the phrase "special class" is construed to mean "special day class," the letter does not recommend such a placement, but merely that it be considered. Finally, it is clear from Mrs. Adams response, see Joint Exhibit 52, that she believed that the District was continuing to offer the RS Program. And there is no evidence of a responsive letter from the District contradicting that belief. Therefore, the court finds that the District did not offer an SDC placement to Andy until November 1984.
B. Appropriateness of District Placements
The District asserts that Andy is a marginal student with a common disability, and that the RS Program and the SDC Program are equally appropriate. The District stated several times that there were other students with problems similar to Andy's, but no evidence was offered to support this statement. The court finds that, although there may be students within the District with problems of the same general nature, Andy's particular deficiencies are unique. The court also finds that the District has not offered a placement that will address Andy's unique needs.
Andy's specific language disability involves deficits in all three learning modalities auditory, visual, and sensory-motor. Unlike many dyslexics, Andy has no relative strength in or preference for either the auditory or visual mode. Plaintiffs' experts testified that because of this lack of relative strength and the weakness in all modalities, Andy needs an intensive simultaneous multi-sensory approach. Each of these witnesses had personal contact with Andy and based his or her opinion on a personal assessment of him. These witnesses were of the opinion that the Pueblo Vista SDC was an excellent program, but not appropriate for Andy because it would not provide a sufficiently structured sequential simultaneous multi-sensory approach.
Defendants' expert witnesses were less helpful. Two that testified at trial had not personally assessed Andy, and could speak only in generalities after a review of his record. Such testimony does not outweigh the opinions of experts with personal knowledge of Andy's needs. Even the SDC teacher recommended for Andy by the District indicated that she would be unwilling to rely solely on the assessments in Andy's file, or offer an instructional plan for Andy until she had assessed him herself. One expert witness, Thomas Cooke, refused to accept the premise that Andy was equally deficient in each modality, and *864 was unresponsive to hypotheticals reflecting that diagnosis.
Testimony from District witnesses at the due process hearing also reflected some confusion or lack of knowledge about Andy's specific needs. It was clear that Gerald Perez was sometimes testifying about another youngster tested under similar circumstances at about the same time. See 5 HT 182-86; 6 HT 54; id. at 62. And Marge Plecki's testimony indicated that she was not sure of Andy's age. 6 HT 26-27. This is not unusual given the number of students for whom these witnesses must provide services. It does make it difficult, however, for this court to give such testimony great weight.
There was also conflicting testimony about the type of instruction that Andy would get in the Pueblo Vista School SDC. The District asserts that it can provide a structured, sequential, simultaneous multi-sensory approach for Andy at Pueblo Vista School. The SDC teacher, Arden Mowrey, indicated that she used a variety of techniques involving the three modalities. However, it became apparent from her testimony, and from the testimony of other witnesses, that she does not use a structured sequential simultaneous multi-sensory approach. There is also evidence that Andy would be distracted in her classroom because of the variety of activities that are going on at any given time. Finally, since the District has indicated that the RS and SDC programs are equally appropriate for Andy, the court assumes that similar results would be produced in either program. Thus, there is no reason to believe that the SDC would be any more effective than the RS Program has been.
The court has also considered evidence that while attending schools within NVUSD Andy developed behavioral problems due to his frustration at being unable to learn. This led, in March 1984, to the addition of 94-142 counseling services to Andy's IEP. Mrs. Adams testified that she would be concerned about Andy's self-esteem if he attended the Pueblo Vista SDC, because she heard the Pueblo Vista teacher make discouraging comments to and about students, such as "You can't do this," and "They're sending his brains by mail." While it may have been an oversight by the defendants' counsel, that testimony went unchallenged and uncontradicted. The parties agree that Andy's self-esteem is of great importance, and it is clear that such comments would be detrimental to his continued progress.
On the other hand, the Charles Armstrong School has provided Andy with effective instruction, as indicated by the Woodcock-Johnson test scores, above, and other instruments used to assess Andy's academic growth. For example, the Wide-Range Achievement Test ("WRAT") indicated a growth over a period of seven months of 7 months in spelling, 8 months in math, and over a year in word recognition. Ms. Adams and Andy's present teacher, Mary Judd, indicate that Andy's behavior problems have disappeared, and that he indicates that he is proud of himself because he is learning and because he is more self-sufficient.
Defendants contend that the Charles Armstrong School is inappropriate for Andy because it relies on one type of instruction to the exclusion of others, and because all of the youngsters at the school have the same type of disability. The court finds these arguments unpersuasive. The Charles Armstrong School has been approved by the State of California for non-public placement by school districts of youngsters with dyslexia. As for the policy of relying on a single method of instruction, the court merely notes that it has been effective in teaching Andy. Finally, with respect to the contention that Andy cannot be "mainstreamed" at the Charles Armstrong School, the court has considered testimony showing that many of the students are not identifiable as learning disabled students. All are of average or higher intelligence, and many are working at grade level. Such students would be considered regular students in a public setting, in spite of their specific language disabilities. Thus the court finds that *865 Andy can be "mainstreamed" at Charles Armstrong School.
CONCLUSIONS OF LAW
The Education of the Handicapped Act ("EHA" or "Act"), 20 U.S.C. § 1401 et seq., requires a state receiving federal financial assistance thereunder to provide a "free appropriate public education" to all handicapped children within its borders. Id. § 1412. A "free appropriate education" consists of instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction. Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 188-89, 102 S. Ct. 3034, 3041-42, 73 L. Ed. 2d 690 (1982). The instruction and services must meet the State's educational standards, and comport with the child's "individualized education program" ("IEP"). 20 U.S.C. § 1401(18).
A. Appropriate Education
In suits brought under the EHA, the court's inquiry is whether the responsible agency has created a plan which conforms with statutory requirements, and whether the IEP is reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. 206 & n. 27, 102 S. Ct. 3050-51 & n. 27. The court must make an independent determination of the appropriateness of the child's placement, and need not defer to the findings of administrative agencies. 20 U.S.C. § 1415(e)(2); see also Age v. Bullitt County Public School, 673 F.2d 141, 144 (6th Cir.1982). The issues in this trial are: (1) whether the provisions of the November 1984 IEP call for a simultaneous multi-sensory approach; (2) whether the IEP can be or could have been implemented within the District; (3) whether it can be or has been implemented at the Charles Armstrong School; and (4) whether the March 1985 IEP is appropriate.
1. Andy's IEP
During the mediation process, the parties agreed upon an IEP for Andy that states that he requires "[an] intensive multi-sensory approach, especially in reading and lang[uage] instruction; minimal distractions; auditory sequencing; visual-motor integration; small group instruction." Long range goals include participation in a regular classroom on a full-time basis with support services as needed, and the ability to write two paragraphs with correct capitalization, punctuation, spelling and grammar. After reviewing Andy's previous IEP's and the mediation agreement developed in conjunction with the November IEP meetings it is clear that when the parties used "intensive multi-sensory approach" they meant a simultaneous multi-sensory approach such as the one used at the Charles Armstrong School. None of Andy's prior IEP's had called for an intensive multi-sensory approach, and the only place that he had received that type of instruction was the Charles Armstrong School. Although the District contends that the mediation agreement is not part of the IEP, it was drafted contemporaneously and was originally intended to be incorporated. It must be viewed as a surrounding circumstance providing the background against which the IEP was signed. The specification in the mediation agreement calling for the use of the Slingerland approach, "with other multi-sensory approaches to be phased in," makes it clear that the parties had Slingerland-like approaches in mind.
2. The Appropriateness of Pueblo Vista's SDC
The District presented evidence that the Pueblo Vista teacher had been exposed to the Slingerland approach, but other testimony indicated that such exposure is insufficient to allow her to make effective use of the approach. She does not consistently use a simultaneous multi-sensory approach, and her responses at trial indicated that she did not feel such an approach was necessary. Therefore, the "intensive multi-sensory approach" required by Andy's IEP cannot be implemented at Pueblo Vista School.
*866 Andy's IEP also calls for minimal distractions. He is easily distracted due to auditory attention deficits. Given the level of noise and distractions generated by a constant change in activities, the court finds that this aspect of Andy's IEP cannot be implemented at Pueblo Vista School.
3. The Appropriateness of Charles Armstrong School
The District contends that Andy's IEP cannot be implemented at the Charles Armstrong School because it calls for integration during recess, lunch, and sports programs with regular students. The District also questions whether Andy receives 20-30 minutes twice a week with a speech/language therapist as required by his IEP. This court has already indicated that Andy is integrated with regular students in class as well as at lunch, recess, and sports programs. And Carol Murray of the Charles Armstrong School indicated that a speech/language therapist works with Andy's class for more than the time required by his IEP. Finally, Andy's present teacher at the Charles Armstrong School, Mary Judd, testified that Andy has already met or exceeded the goals from the November IEP.
4. The Appropriateness of the March 1985 IEP
The March 1985 IEP is inappropriate because it lists goals and objectives that have already been met. Moreover, they are not ambitious enough given the rate of Andy's progress during the past year. The parties will need to meet and draft goals and objectives that are based on Andy's present level of achievement, and his expected growth based on appropriate instruction.
B. Reimbursement After Unilateral Placement
Having determined that the District failed to offer an appropriate placement for Andy before he was enrolled in Charles Armstrong School, the court must now decide whether Susan Adams is to be reimbursed for the costs of Andy's education for the 1984-85 and 1985-86 school years. Section 615(e)(3) of the EHA, provides that "during the pendency of any proceedings conducted pursuant to [that] section, ... the child shall remain in the then current educational placement of such child, ..." 20 U.S.C. § 1415(e)(3). Many courts have read this provision to preclude reimbursement when the parent moves the child before the IEP process has been resolved in their favor. See, e.g., Scokin v. State of Texas, 723 F.2d 432 (1984); Mountain View-Los Altos Union High School District v. Sharron B.H., 709 F.2d 28 (9th Cir.1983); Newport-Mesa Unified School District of Orange County v. Hubert, 132 Cal. App. 3d 724, 183 Cal. Rptr. 334 (1982). However, the United States Supreme Court held recently in Burlington School Committee v. Department of Educations, ___ U.S. ___, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985), that parental violation of § 1415(e)(3) does not constitute a waiver of reimbursement. 105 S. Ct. at 2004. Thus, retroactive reimbursement is an available remedy where the court determines that a private placement was proper. Id. at 2003.
The Rowley court held that if a child is being educated in the regular classrooms of the public education system, the IEP and personalized instruction should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. 458 U.S. 203-04, 102 S.Ct. at 3049-50. Under this standard, it is clear that before Susan Adams enrolled Andy in the Charles Armstrong School he had been deprived of a "free appropriate public education" for at least two years. Moreover, in spite of this deprivation, the District failed to offer a more appropriate placement for the 1984-85 school year. Therefore, this court finds that Susan Adams was justified in moving Andy to the Charles Armstrong School, and that she is entitled to reimbursement of tuition and travel expenses for the Summer of 1984, and for the 1984-85 school year. The court also finds that the District currently does *867 not have a suitable placement or IEP for Andy, and that it would be inappropriate to change Andy's placement before the end of the current school year. Therefore, the court orders the school District to reimburse and/or pay Andy's tuition and transportation costs for the 1985-86 school year.
C. Attorney's Fees and Room and Board
Plaintiffs do not have a separate claim under 42 U.S.C. § 1983, and are not entitled to greater relief under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, than they are under the EHA. Attorney's fees are not available under the EHA, which provides the exclusive remedy in a case of this kind. Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984). Therefore, the plaintiffs are entitled to costs, but they are not entitled to attorney's fees.
Finally, since the Charles Armstrong School is a day school, Andy's placement in a private residence does not constitute a "related service" as defined in section 602 of the Act, 20 U.S.C. § 1401(17). Therefore, the plaintiffs are not entitled to reimbursement for room and board.
CONCLUSION
Andrew Adams will remain at the Charles Armstrong School for the rest of the 1985-86 school year. He will return to the Napa Valley Unified School District at the beginning of the 1986-87 school year, if the District has an appropriate placement for him at that time. The cost of Andy's tuition and transportation while attending Charles Armstrong will be borne in the future by the District. The District shall reimburse Susan Adams for Andy's tuition and transportation costs for his attendance from June 1984 through the date of this decision. Finally, the parties will meet immediately to develop an appropriate IEP for Andy.
IT IS SO ORDERED.
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178 Cal. App. 4th 1488 (2009)
TAMMY KING, Plaintiff and Appellant,
v.
BARBARA JOHNSTON, Defendant and Respondent.
No. D054136.
Court of Appeals of California, Fourth District, Division One.
November 9, 2009.
*1491 Glenn, Wright, Jacobs & Schell and Ralph E. Hughes for Plaintiff and Appellant.
Law Offices of William F. Roche and William F. Roche for Defendant and Respondent.
OPINION
AARON, J.
I.
INTRODUCTION
Plaintiff Tammy King appeals from a judgment entered in favor of defendant Barbara Johnston. Tammy,[1] a beneficiary of the Arthur L. Gilbert Testamentary Trust, sued Barbara in a civil action, alleging that Barbara had unduly influenced the trustee, Lenora Gilbert, to breach the trust.[2] According to Tammy, Barbara induced Lenora to transfer a piece of trust property to herself, without consideration, after which Barbara induced Lenora to mortgage the property for a personal loan. The bank eventually foreclosed on the property, and Lenora lost title. Tammy also alleged that Barbara took money and rents that belonged to the trust and used them for her own personal benefit.
Tammy asserted, in the alternative, that Barbara had essentially taken over the role of trustee while Lenora was still alive but in failing mental and physical health, and that Barbara's actions during this period of time constituted a breach of trust. Tammy further alleged that after Lenora's death, Barbara acted as trustee and thus became a trustee de son tort,[3] and that Barbara breached her duties as trustee during that period of time by failing to properly care for and/or recover trust property.
After a bench trial, the trial court determined that Tammy should recover nothing from Barbara. Specifically, the trial court concluded that Tammy had *1492 failed to establish the existence of a conspiracy between Lenora and Barbara, that Tammy had not established that Barbara was a de facto trustee before Lenora died, and that Tammy, as a trust beneficiary, did not have standing to sue Barbara without joining the current trustee, Lloyd Gilbert, in the action.
The trial court also concluded that Barbara had unduly influenced Lenora to breach the trust, and that Barbara had "acted as trustee" after Lenora's death, before Lloyd accepted his role as trustee. Despite these findings, the court determined that because Tammy lacked standing to sue Barbara for Barbara's role as a third party participant in Lenora's breach, Tammy could not recover under that theory. The court also declined to award Tammy any relief as to her claim that Barbara had acted as trustee after Lenora's death, because, the court noted, Lloyd was "actively recouping" the value of the trust rental income that Barbara had wrongfully retained by withholding her share of the trust distributions.[4]
On appeal, Tammy contends that the trial court erred in denying her relief in the form of the value of the trust property that Lenora transferred out of the trust and lost after defaulting on her loan. Specifically, Tammy asserts that the court erred in concluding that she did not have standing to sue Barbara for Barbara's role as a third party participant in Lenora's breach of trust. Tammy also contends that the trial court erred in failing to grant relief to make the trust whole by rejecting Tammy's argument that Barbara acted as a trustee de son tort during Lenora's tenure as trustee. Tammy further contends that the trial court erred in failing to make a determination as to whether Barbara became a trustee de son tort by acting as trustee after Lenora's death. If Barbara were found to have been a trustee de son tort, she may have been obligated to fulfill the same duties a trustee would be required to fulfill, including protecting and restoring trust property.
We conclude that the trial court erred in determining that Tammy did not have standing to sue Barbara for Barbara's role as a third party participant in a trustee's breach. We also conclude that the court erred in failing to consider and make the necessary findings as to whether Tammy could recover from Barbara under a theory that after Lenora's death, Barbara became a trustee de son tort, and thus had duties to the trust beneficiaries, which she breached. We therefore reverse the judgment and remand the case.
*1493 II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Upon Arthur Gilbert's death in 1991, his widow Lenora became the trustee of the Arthur L. Gilbert Testamentary Trust. Upon Lenora's death, the trust estate was to be distributed as follows: (a) 15 percent to Tammy and 15 percent to Tammy's sister, Brenda Leifheit (representing an even split of the 30 percent that would have gone to their deceased father, one of Arthur's sons); (b) 30 percent to Lloyd, Arthur's other son; (c) 30 percent to Barbara, Arthur's stepdaughter; and (d) 10 percent to the Church of Christ.[5]
During the distribution of Arthur's estate, Lenora, as trustee, received title to two parcels of land, "Parcel 21" and "Parcel 17," which are adjacent to each other. Mark Osterkamp rented both parcels for farming.
Lenora personally received title to two other parcels of land, the Gilbert residence, and a property identified as "Parcel 6." Parcel 6 sits directly west of Parcel 21 and directly north of Parcel 17. Osterkamp also rented Parcel 6 from the Gilbert family.
Arthur's probate closed in 1993.
In December 1995, Lenora suffered a seizure and spent approximately two weeks in the hospital. In January 1996, Lenora told her niece by marriage that she had been sick and that Barbara was taking care of her finances.
In the summer of 1997, Lenora was living at a residence that she owned on Dahlia Lane in Imperial, California. Barbara lived approximately seven and a half or eight miles from Lenora, on James Road. That summer, Lenora transferred Parcel 17 out of the trust without consideration, and used Parcel 17 and the Dahlia Lane property as security for a personal loan from Ford Consumer Finance. The escrow officers who handled the transaction stated that a woman who identified herself as Barbara Johnston had directed that any mail concerning the transaction be sent to Barbara's James Road address.
Lenora's physical and mental health continued to decline. After Lenora was diagnosed with dementia, Barbara opened a joint savings account with Lenora. Osterkamp's rent checks were deposited into this account. Over a *1494 number of months, thousands of dollars in rental income belonging to the trust was withdrawn from the joint account. During this time, Lenora could not drive and had difficulty walking.
Around March of 2000, Barbara began endorsing Osterkamp's rent checks by signing Lenora's name. That year, Barbara entered into a lease with Osterkamp. The lease included Parcel 17. Barbara signed both Lenora's name and her own name on the lease agreement.
Lenora failed to make payments on the personal loan that was secured by the property that she had transferred out of the trust. The lender eventually foreclosed and took title to Parcel 17 and the Dahlia Lane residence. Lenora then moved in with Barbara and Barbara's husband.
Lenora died on March 26, 2002. After Lenora died, Barbara told Osterkamp to make his rent checks out to her as trustee.[6] Osterkamp's first rent check after Lenora's death was made payable to "Barbara JohnstonTrustee Arthur L. Gilbert Trust," and was dated March 27the day after Lenora died. Osterkamp asked Barbara to show him the trust documents, and then asked her about Lloyd. Barbara told Osterkamp that she did not know where Lloyd was, and said she did not know how to get in touch with him.[7] Osterkamp continued to pay his rent to Barbara, as trustee, for a number of months. Barbara endorsed and deposited the checks, despite the fact that she had seen Lloyd at Lenora's funeral in late March 2002, and knew that he was the named successor trustee. Barbara claimed that she believed that Lloyd did not want to have anything to do with the trust because he had said, "[t]ake care of things or something along those lines" to her at the funeral.
In December 2002, an attorney for Lloyd wrote to Barbara and inquired about the trust property. Barbara did not respond to the letter. In May or June 2003, another attorney for Lloyd contacted Barbara. Barbara claimed at trial that she "had no information regarding the trust" to give to Lloyd's attorney at that time. On August 7, 2003, Lloyd recorded a document entitled "Affidavit of Succession Trustee." Barbara did not provide either Lloyd or Tammy with financial information about the trust.[8] Barbara testified that she had burned receipts and money orders that could have shown how she spent the rental income from Osterkamp after Lenora's death.
*1495 Tammy presented evidence that Lenora could have used her own personal property, namely Parcel 6, as security for the personal loan.[9] Barbara stood to inherit 100 percent of Lenora's personal property upon Lenora's death, but was to inherit only a 30 percent share of the trust property, which included Parcel 17. An expert appraised Parcel 17 to be worth $429,000 at the time of trial, but adjusted the value of the property to $423,000 to account for the estimated $6,000 that it would cost to address a drainage problem on the property.
B. Procedural background
Tammy filed her original complaint against Barbara on November 14, 2006. In her complaint, Tammy alleged seven causes of action which she identified as: (1) "Conspiracy to Breach TrustTransfer of Lots 1-36 from the Trust Without Consideration"; (2) "Conspiracy to Breach TrustUse of Trust Property for Personal Advantage"; (3) "Conspiracy to Breach TrustReceipt of Trust Property in Violation of the Terms of the Trust"; (4) "Conspiracy to Breach TrustFailure to Recover Trust Property"; (5) "Conspiracy to Breach TrustActing in the Place and Stead of Incapacitated Trustee"; (6) "Conspiracy to Breach TrustUnduly Influencing Incapacitated Trustee"; and (7) "Accounting."[10] Barbara answered the complaint on January 24, 2007.
The court granted Tammy's request to file an amended complaint (FAC), which she filed on November 26, 2007. Tammy retained the same allegations as the original complaint in the FAC, and added two causes of action entitled "Breach of Trust" and "Bad Faith Breach of Trust." Tammy's allegations included the contention that "Barbara Johnston, acting for [her] own personal advantage, induced, aided and abetted the foregoing breach of trust [i.e., Lenora's taking of Parcel 17 and using it as security for a personal loan] all to plaintiff's damage in an amount to be proved at trial." Barbara answered the FAC on February 20, 2008.
Trial in the matter was set to begin on April 23, 2008. In the days just prior to trial, Tammy moved to file a second amended complaint (SAC). In the proposed SAC, Tammy sought to add Lloyd, as trustee, as a plaintiff in the *1496 action, as well as to clarify certain allegations in the FAC. Tammy submitted a declaration of Lloyd in which he stated, "I was reluctant to act as Trustee in support of Tammy King's allegations in this case until I had determined that her allegations against Barbara Johnston were substantial. I am now convinced that the allegations are substantial, and I have agreed to become a Plaintiff in this case with her."
After discussing the matter of adding Lloyd as a plaintiff in the case, and in response to Barbara's attorney's objection that discovery would have to be reopened if Lloyd were added as a plaintiff, the trial court gave Tammy the option of proceeding to trial without amending the complaint or postponing trial. Tammy's attorney indicated that Tammy wanted to go forward with trial, and the trial court denied the motion to file the SAC.
The court held a bench trial between April 25 and May 8, 2008. At the conclusion of trial, the court requested that the parties brief the issue of Tammy's standing to bring the action. The parties filed their briefs on this issue on May 16.
The trial court issued its tentative decision on August 14, 2008. The court organized its tentative decision around a number of questions that also served as topic headings. Specifically, the court asked, and then provided answers to, the following questions: (1) "Did defendant JOHNSTON conspire with Lenora Gilbert?"; (2) "Were the alleged breaches of trust of Lenora Gilbert the result of undue influence by defendant?"; (3) "Did defendant become the de-facto trustee?"; and (4) "Does plaintiff, as a trust beneficiary, have standing to bring the instant suit?" The court's final heading was not presented in the form of a question, but rather, as a statement: "Defendant's acts as trustee subsequent to the death of Lenora."
Among the trial court's conclusions was its determination that the evidence created "a strong inference that Lenora's actions were due to the undue influence of [Barbara]." The court found that the evidence demonstrated that (1) Lenora "was in failing physical and mental health at the [relevant] times"; (2) Lenora was "dependent on [Barbara] for assistance regarding financial matters and medical issues"; (3) Barbara "communicated with the title company and a lender regarding a loan transaction secured by trust property"; (4) Barbara "provided significant assistance to Lenora regarding personal banking"; (5) "[d]ocuments regarding transactions involving trust property were sent to [Barbara's] address"; and (6) Barbara "signed Lenora's name to transactional documents and checks." The trial court rejected Barbara's claims that she had not signed Lenora's name on documents and checks, and inferred from the lack of credibility of Barbara's testimony that Barbara had, in fact, been involved in Lenora's actions concerning trust property. The court *1497 stated, "The fact that [Barbara] executed Lenora's signature was abundantly clear to the court sitting as trier of fact; [Barbara's] falsehoods in this regard were further confirmed by uncontradicted expert testimony."
The court ultimately concluded that Barbara had exercised undue influence over Lenora with regard to Lenora's breach of her duties as trustee, explaining: "Here, the evidence showed that Lenora took actions inconsistent with her duties as trustee (transferring property out of the trust without consideration) at a time when she was in failing physical and mental health; the evidence further shows that [Barbara] was involved in the transactions. Lenora was, to a great extent, dependent on [Barbara] to assist her with financial and other matters. This, coupled with [Barbara's] false and patently unreasonable denial of any involvement with Lenora's financial affairs compels the conclusion that [Barbara] did, in fact, exercise undue influence over Lenora."
However, the trial court rejected Tammy's theory that Barbara had acted in the capacity of trustee prior to Lenora's death. Although the trial court referred to the theory under which Tammy sought to hold Barbara liable as a trustee for her conduct prior to Lenora's death as one involving a "de facto trustee," and not, as Tammy had argued, a trustee de son tort, the court did refer in its discussion to the primary case on which Tammy had relied, and appeared to address Tammy's contention regarding the trustee de son tort theory. The court also concluded that Barbara had not conspired with Lenora because there was no evidence that the two had agreed to do anything.
The trial court concluded that Tammy did not have standing to bring the lawsuit without naming Lloyd as a defendant for his having failed to bring the lawsuit in the first place.
Finally, the court made the following determination: "The court finds that defendant acted as trustee subsequent to the death of Lenora and prior to the succession of Lloyd. During this time, defendant took possession of funds belonging to the trust (rental income); defendant has failed to account for these funds or their disposition. [¶] The evidence shows that the current trustee is actively recouping the funds from defendant by means of withholding distribution of trust income. This appears to be an eminently practical method for the recovery of trust property. The court declines to interfere with the non-party trustee's discretion in recovery of the funds."
The court indicated that its tentative decision was to grant judgment in favor of Barbara, and indicated that Barbara was to prepare a proposed statement of decision if one was requested.
On August 28, 2008, Tammy filed a request for a statement of decision. In her request, Tammy asked the court to clarify a number of matters related to *1498 the issues that she has raised in this appeal, and specifically urged the court to consider case law that she had presented to the court, but to which the court had not referred in its tentative decision.
On September 23, 2008, Tammy filed a proposed statement of decision. In that document, Tammy specifically raised the issue of Barbara's participation in Lenora's breach of trust. In support of her proposed statement of decision, Tammy also filed three memoranda of points and authorities, each of which argued an independent theory as to why the court should hold Barbara liableincluding the theories that Barbara was a trustee de son tort, and that Tammy has standing to bring a claim that Barbara was a third party participant in Lenora's breach. Tammy also filed a proposed judgment.
It appears that at some point Tammy moved to amend the operative complaint, after trial, to conform to proof. Although the motion is not in the record, the record contains Barbara's opposition to amending the complaint a third time, which was filed on September 30, 2008. That same day, the trial court filed an order adopting its tentative decision as its final statement of decision. The court rejected Tammy's request for a statement of decision, stating that Tammy's proposed statement of decision was "replete with argument and citations to case law, and appears to be merely a posttrial brief." The court also noted that Barbara's method for responding to Tammy's proposed statement of decisionwhich was to do nothing more than file a notice of lodgment of the court's tentative decisionwas wholly inadequate. The trial court stated, "The parties have utterly failed to comply with the statutes and rules of court relating to the preparation of a statement of decision. This failure is so complete that the court cannot discern what controverted issues it is required to address. Therefore, the [c]ourt finds that the parties have waived any further statement of decision herein; the tentative ruling shall become the statement of decision of the court forthwith."
The court filed a judgment on November 3, 2008. Tammy filed a timely notice of appeal on November 21, 2008.
III.
DISCUSSION
Tammy contends on appeal that the trial court should have found Barbara liable forat a minimumthe value of Tammy's portion of the value of Parcel 17, which was lost during Lenora's tenure as trustee. Tammy offers multiple theories as to how she, as a beneficiary, should have been permitted to recover from Barbara the value of Parcel 17. Tammy's first theory is that she has standing to sue and may recover from Barbara the value of Parcel 17, *1499 which Lenora transferred to herself without consideration, because Barbara was a third party participant in Lenora's breach of trust. A second theory Tammy proposes is that the trial court should have determined that Barbara was a trustee de son tort of the trust, before and/or after Lenora's death. With respect to the time period during which Lenora was ostensibly the trustee, Tammy contends that Barbara "fully assumed the character and duties of the Trustee and managed the Trust estate as Trustee long before her mother died." According to Tammy, Barbara may be held liable as a trustee de son tort for allowing Parcel 17 to be removed from the trust without consideration and eventually foreclosed on. Further, according to Tammy, she, as a beneficiary, can maintain this action against Barbara and recover for the trust the value of Parcel 17 because a beneficiary may always sue a trusteewhich Tammy asserts includes a trustee de son tortfor his or her breach of trust.
With respect to the time period after Lenora died and before Lloyd accepted his position as successor trustee, Tammy contends that even if Barbara did not become a trustee de son tort before Lenora's death, she clearly became one when, after Lenora's death, she held herself out as trustee and took control of trust property. Tammy asserts that Barbara is therefore liable for any breach of her trustee duties during this time, and that a trust beneficiary may sue her for any such breach.
(1) We conclude that the trial court erred in determining that Tammy offered no theory pursuant to which she may recover from Barbara. Based on the trial court's findings of fact, Tammy could recover from Barbara under either a third party participant theory, or, possibly, under a theory that Barbara was a trustee de son tort after Lenora's death. The trial court clearly found that Barbara was significantly involved in (if not wholly responsible for) Lenora's breach of trusti.e., the breach that resulted in the trust losing Parcel 17. Based on this finding, the trial court should have permitted Tammy to recover damages that the trust suffered under the third party participant theory. Further, the court should have determined whether, and if so, to what extent, Tammy may recover from Barbara under the theory that Barbara was a trustee de son tort for the trust property after Lenora's death.
A. Tammy may recover from Barbara the value of property that Barbara helped Lenora to transfer out of the trust, under the theory that Barbara acted as a third party participant in the breach
In the trial court's statement of decision, the court posed the question, "Does Plaintiff, as a Trust Beneficiary, Have Standing to Bring the Instant Suit?" The court's answer to this question was, "No." Citing Saks v. Damon Raike & Co. (1992) 7 Cal. App. 4th 419 [8 Cal. Rptr. 2d 869], the trial court noted that "[n]ormally, the trustee is the real party in interest regarding claims *1500 of the trust against third parties, and [the trustee] has the exclusive right to bring an action." The trial court did acknowledge the existence of an exception to that general rule, stating that a beneficiary may "bring an equitable action against the third party and the trustee," in situations "where the trustee should bring the action against a third party but refuses to do so." However, because Tammy had not named Lloyd as a defendant in the action, the court concluded that Tammy's action failed to meet the requirements of the exception that permits a beneficiary to sue a third party.[11] However, the trial court failed to recognize another exception to the general ruleone that applies here. Specifically, a beneficiary may pursue claims against a third party on his or her own, without participation by the trustee, when that third party actively participated in, or knowingly benefited from, a trustee's breach of trust.
(2) "As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust's behalf. [Citations.] Conversely, a trust beneficiary cannot sue in the name of the trust. [Citations.]" (Estate of Bowles (2008) 169 Cal. App. 4th 684, 691 [87 Cal. Rptr. 3d 122] (Bowles).) "But a trust beneficiary can bring a proceeding against a trustee for breach of trust. [Citations.]" (Id. at pp. 691-692.) "Moreover, it is well established, and this court has held, that a trust beneficiary can pursue a cause of action against a third party who actively participates in or knowingly benefits from a trustee's breach of trust. [Citations.]" (Id. at p. 692.)
"Ordinarily, when a third party acts to further his or her own economic interests by participating with a trustee in such a breach of trust, the beneficiary will bring suit against both the trustee and the third party. However, it is not necessary to join the trustee in the suit, because `primarily it is the beneficiaries who are wronged and who are entitled to sue. . . .' [Citation.] The liability of the third party is to the beneficiaries, rather than to the trustee, `and the right of the beneficiaries against the [third party] is a direct right and not one that is derivative through the trustee.' [Citation.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2008) 68 Cal. App. 4th 445, 467 [80 Cal. Rptr. 2d 329] (Atascadero); see also Bowles, supra, 169 Cal.App.4th at p. 694 ["[T]he beneficiary's cause of action is independent and not derivative through the trustee; therefore, the trustee is not a necessary party to the action. [Citations.]"].) Thus, "`[w]hen the claim being asserted rests in whole or in part on alleged breaches of trust by the *1501 trustee, a beneficiary has standing to pursue such a claim against either (1) the trustee directly, (2) the trustee and third parties participating in or benefiting from his, her, or its breach of trust, or (3) such third parties alone.'" (Bowles, supra, 169 Cal.App.4th at p. 694, italics omitted, quoting Harnedy v. Whitty (2003) 110 Cal. App. 4th 1333, 1341-1342 [2 Cal. Rptr. 3d 798] & citing 60 Cal.Jur.3d (2005) Trusts, § 382, p. 527.)
Tammy allegedand, according to the trial court's findings, established that Barbara actively participated in Lenora's breaches of fiduciary duty, including the transfer of Parcel 17 to Lenora as an individual without consideration. Specifically, the court found that Barbara "was involved" in the transactions that resulted in Lenora "transferring property out of the trust without consideration[] at a time when [Lenora] was in failing physical and mental health," and that Barbara "exercise[d] undue influence over Lenora" with regard to these transactions. In a typical case, these facts would bring Tammy's claim against Barbara within the exception that a trust beneficiary may pursue a cause of action against a third party who actively participates in or knowingly benefits from a trustee's breach of trust.
However, we have not found any California authority that directly addresses the unique situation presented herei.e., one in which a beneficiary brings a claim against a third party for her participation in a trustee's breach, despite the fact that a successor trustee has taken over the duties of the breaching trustee. Thus, it is an open question whether the appointment of a successor trustee extinguishes a beneficiary's ability to sue that third party for involvement in a prior trustee's breach of trust.
The authors of a well-known treatise on trusts appear to be of the view that a successor trustee's appointment might extinguish a beneficiary's right to sue a third party: "In such a case [where a trustee in breach of trust transfers trust property to someone who is not a bona fide purchaser and thereafter ceases to be trustee], it would seem that the beneficiaries cannot maintain a suit against the transferee unless the successor trustee refuses to sue or is unavailable." (5 Scott & Ascher on Trusts (5th ed. 2008) § 29.1.11.4, p. 1999, italics added.) However, Scott and Ascher cite no authority to support their conclusion that a beneficiary may not maintain an action in a situation in which a successor trustee has been appointed.[12] Nor do they offer any reason why "it would seem" that such a rule is appropriate.
*1502 In contrast to Scott and Ascher's position on this issue, the court in Bowles implicitly determined that a beneficiary may bring a claim against a third party who participated in a trustee's breach of trust, despite the appointment of a successor trustee. In Bowles, the plaintiff beneficiary sued two defendants, alleging that Ms. Bowles, the trustee, had breached her fiduciary duties as trustee, and that the two defendants had induced, aided and abetted Ms. Bowles's breaches with the knowledge that the transactions breached Ms. Bowles's duties as trustee. (Bowles, supra, 169 Cal.App.4th at p. 691.) By the time the plaintiff filed the action, Ms. Bowles had died and a bank had been appointed successor trustee. (Id. at p. 689.) Although the Bowles court did not specifically address the issue of the existence of a successor trustee and/or the effect of the appointment of a successor trustee on the beneficiary's claims, the court concluded that the plaintiff had standing to bring the action against the third parties in that situation.
(3) We affirmatively state here what the Bowles court implicitly concludedi.e., that the naming of a successor trustee does not prevent a beneficiary from proceeding on a claim against a third party who participated in and/or benefited from a predecessor trustee's breach of trust. If it is true that "`the right of the beneficiaries against the [third party] is a direct right and not one that is derivative through the trustee . . .' [citation]" (Atascadero, supra, 68 Cal.App.4th at p. 467), we see no reason why an independent claim that exists prior to the appointment of a successor trustee should be extinguished upon that appointment, and Barbara has offered no reason why the appointment of a successor trustee should serve to wipe out a beneficiary's "direct right" against a third party. We therefore conclude that a beneficiary, like Tammy, may maintain an action against and recover from a third party who has assisted a former trustee in committing a breach of trust, even where a successor trustee has been appointed.
*1503 Barbara contends on appeal that "[w]ithout a conspiracy[,] Tammy King [cannot] jump over the Trustee and sue Barbara Johnston." She asserts that in Bowles and in Pierce v. Lyman (1991) 1 Cal. App. 4th 1093 [3 Cal. Rptr. 2d 236], "there was sufficient evidence produced at trial that the third party actively participated in a conspiracy to breach the trust." Barbara further contends that in these cases, "[t]here were conspiracies," but that in the present case, the trial court ruled that "there was no conspiracy between Barbara Johnston and Lenora." Barbara misconstrues the scope of Bowles and Pierce. Neither case involved a conspiracy, and neither case suggests that evidence of a conspiracy is required in order to hold a third party liable for participating in or benefiting from a trustee's breach of trust. Rather, Bowles and Pierce involved situations strikingly similar to the one here. Thus, although the trial court in this case determined that Tammy had not proved the existence of an actual conspiracy between Lenora and Barbara, this is of no consequence to Tammy's standing to bring a claim against Barbara for Barbara's role as a third party participant in Lenora's breach of trust.
Because the trial court concluded that Tammy did not have standing to bring claims against Barbara, the court did not make the necessary determinations with respect to Barbara's liability for her role as a third party participant in Lenora's breach of trust. For example, the court did not make a finding as to the amount of the loss that the trust suffered as a result of Lenora's breach of trust. We must therefore remand the case to the trial court for it to determine the relief available to Tammy.[13]
As a final note, in determining that Tammy has standing to recover from Barbara under a theory that Barbara was an active third party participant in Lenora's breach, we must necessarily uphold the trial court's conclusion that Tammy may not at the same time prevail on her theory that Barbara should be liable as a trustee de son tort for that same conduct, i.e., her conduct before Lenora's death. Barbara was either a third party participant in a trustee's breach of trust, or she was a trustee de son tort; she cannot have been both a third party and a trustee at the same time. Since there is substantial evidence to support the trial court's findings that Barbara did not "`assume[] the role of trustee'" during Lenora's lifetime, and that Barbara unduly influenced Lenora and was involved in the transactions that amounted *1504 to a breach, we reject Tammy's trustee de son tort theory of liability for Barbara's conduct prior to Lenora's death.
B. Tammy may recover from Barbara for Barbara's breach of trust after Lenora's death
In the alternative, Tammy could possibly recover the value of Parcel 17 for the trust under the theory that Barbara failed to meet her duties as a trustee (a trustee de son tort) after Lenora died. Although Tammy requested in her proposed statement of decision that the trial court address this issue, the trial court limited its consideration of Barbara's liability for her conduct after Lenora's death to Barbara's failure to account for rental income that belonged to the trust. The trial court failed to address Tammy's contention that Barbara should be held responsible for not seeking to redress the loss of trust property once Barbara held herself out as trustee after Lenora's death. Because Tammy brought to the trial court's attention the court's failure to consider Barbara's liability as a trustee de son tort after Lenora's death, we cannot infer from the court's failure to address these issues that the court resolved these issues against Tammy.[14] (See, e.g., Gallo Cattle Co. v. Kawamura (2008) 159 Cal. App. 4th 948, 964, fn. 11 [72 Cal. Rptr. 3d 1] ["The trial court is required upon appropriate request to issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues. [Citation.] If the trial court fails to resolve a controverted issue and the record shows that the omission or ambiguity was properly brought to the attention of the trial court, the appellate court may not draw factual inferences in support of the judgment. [Citation.]"].)
(4) The trial court should have addressed whether Barbara could be held liable as a trustee de son tort for her failure to protect and/or recover Parcel 17 or its value after Lenora's death.[15] The fifth edition of Black's Law *1505 Dictionary defined a trustee de son tort as a "[p]erson who is treated as a trustee because of his wrongdoing with respect to property entrusted to him or over which he exercised authority which he lacked." (Black's Law Dict., supra, p. 1357, col. 2.)[16] In England v. Winslow (1925) 196 Cal. 260 [237 P. 542] (England), the Supreme Court explained the common law theory of imposing fiduciary duties on a person who acts as if he or she is a trustee by taking control of trust property, despite lacking the authority to do so. In England, the plaintiff was executrix of Sophia Winslow's estate, and the defendant was Sophia Winslow's husband at the time of her death. (Id. at p. 263.) After Winslow's death, the defendant collected the rents from occupants of a building that had been Winslow's separate property. (Ibid.) The plaintiff sought an accounting and the payment of all of the money that the defendant had collected from those tenants. (Id. at p. 264.) The court determined that the defendant had essentially become the trustee of those funds by virtue of acting as trustee, by taking control of and managing estate assets. (Id. at p. 267.)[17]
(5) The England court explained, "One who has assumed the relation and undertaken to act in the capacity of a trustee and who has thereby come into the possession and control of the money or property of another cannot be heard to deny the validity of the trust under which he has admittedly acted and the benefits of which he has received and holds. [Citation.] . . . [A] person may become a trustee by construction by intermeddling with and assuming the management of property without authority, and . . . during the possession and management thereof by such constructive trustees they are subject to the same rules and remedies as other trustees, and cannot avoid their liability as such by showing that they were not in fact trustees, nor can they set up the statute of limitations." (England, supra, 196 Cal. at p. 267.) The court further described the basis for the doctrine, as follows: "`It is a well settled rule in the law of trusts that if a person not being in fact a trustee acts as such by mistake or intentionally, he thereby becomes a trustee de son tort. The rule is thus laid down by a recent writer: "A person may become a trustee by construction, by intermeddling with and assuming the management *1506 of property without authority. Such persons are trustees de son tort [just] as persons who assume to deal with a deceased person's estate without authority are administrators de son tort . . . . During the possession and management by such constructive trustees they are subject to the same rules and remedies as other trustees." [Citations.] . . . It is plain that this branch of the law does not rest on the strict ground of estoppel as usually expounded in the law books. It rather depends upon a principle of public policy connected with the right administration of justice. [Citation.] The principle to be extracted from the cases is that the party acting as trustee shall not be allowed, in a court of justice, to set up, as against parties interested in the administration of the trust, a state of things inconsistent with his assumed character.'" (England, supra, 196 Cal. at pp. 267-268.)
Although England is not recent authority, it appears to still be valid, and the equitable principles on which the notion of a trustee de son tort is based remain relevant today. The facts in this case seem to fit precisely with the notion espoused in England that one should not be permitted to assume the character of a trustee and wrongfully benefit from doing so without also having to assume the responsibilities of a trustee. There is evidence that Barbara held herself out as the trustee to Osterkamp, and that she went so far as to tell Osterkamp that she did not know where Lloyd was and that she could not get in touch with him. As the trial court apparently found, Barbara assumed management of the trust rental income by accepting the rental income in her name, as trustee. Barbara was seemingly the only person who took control of the trust assets after her mother died. The trial court specifically concluded that Barbara "acted as trustee" and that she "took possession of funds belonging to the trust" during the period of time after Lenora's death and before Lloyd accepted his position as trustee. However, the trial court did not address whether Barbara's conduct was such that she should be held to the same standards as a named trustee would be held. There were clearly sufficient facts to support a finding that Barbara wrongfully took over some or all of the trust property after her mother died. The trial court will have to determine on remand whether Barbara's conduct was sufficient to hold her liable as a trustee de son tort of some or all of the trust property and, if so, whether she breached her duties in that role, and what relief would be appropriate if the court finds that such a breach occurred.[18]
Barbara does not offer any reason why she may not be held liable for her conduct after Lenora's death. She simply ignores the contention that she *1507 assumed the role of trustee after Lenora's death, instead focusing all of her attention on, and citing the trial court's findings only with regard to, the time period before Lenora died. Barbara also incorrectly asserts that Tammy did not raise the trustee de son tort theory in the trial court. However, it is clear that Tammy did, in fact, raise this issue in the trial court.
Thus, the trial court should have addressed whether Barbara breached her duties as a trustee de son tort in the manner in which she managed the trust assets and/or in failing to provide an accounting of the trust assets and/or in failing to seek to recover property that the trust had lost as a result of Lenora's breach of trust. On remand, the trial court should consider the extent to which Barbara may have owed fiduciary duties to the beneficiaries, and whether Barbara fulfilled, or instead, breached, any such fiduciary duties when she "acted as trustee" after Lenora's death and prior to Lloyd's succession as trustee.
C. The trial court should determine the relief to be awarded
Tammy asserts that she may recover various forms of relief, depending on the theory of liability under which she prevails. For example, Tammy contends that Barbara should be held liable for Tammy's portion of the value of Parcel 17 for Barbara's role as a third party who actively participated in Lenora's breach. Tammy contends that if Barbara is liable as a trustee de son tort for her actions while Lenora was still alive, then Barbara "is responsible to make the Trust whole for the damages she caused to it," which, Tammy contends, would "include the value of Parcel 17 at the date of trial." Tammy then suggests that if Barbara is held liable as a trustee de son tort for her actions after Lenora's death, Barbara should be "responsible for damages in the amount of the current value of Parcel 17, in order to make the trust whole, because she deprived the Trustee and Tammy of the opportunity to sue Lenora's estate for the value of Parcel 17." Alternatively, Tammy argues that, "the court may declare Barbara's beneficial interest in Parcel 6 to be held by Barbara as constructive trustee for the benefit of the Trust."
Tammy also asserts that under any theory, Barbara should be responsible "for the amount that the attorney's fees and costs of this litigation exceeded Tammy's share of the attorney's fees and costs that Lloyd, as successor Trustee, would have incurred by a timely action against Lenora's estate." Tammy also claims that Barbara should be liable for "double damages under Probate Code § 859," and asks this court to impose such damages, or to direct the trial court to do so.
We decline to address any of Tammy's arguments concerning her requests for particular relief, for a number of reasons. First, the trial court made no *1508 findings with regard to damages because the court determined that Tammy did not have standing to sue Barbara, and because the court made no determination as to whether Barbara might be liable as a trustee de son tort for her conduct after Lenora's death. In the absence of any findings by the trial court with regard to damages and/or equitable relief, we decline to comment on what relief may or may not be appropriate and/or available to Tammy.
Second, other than with respect to Tammy's argument asserting that she should be awarded excess attorney fees as damages, Tammy provides no reasoned argument or authority on appeal to support her assertions with regard to any of the relief to which she claims she is entitled.[19] Third (and perhaps as a consequence of our second reason for declining to address possible relief), we are not convinced that Tammy would necessarily be entitled to recover different amounts under the various alternative theories that she presents. Rather, it appears that the essence of Tammy's complaints against Barbara revolve around the loss of Parcel 17. Regardless of how that loss may be remedied, and whether it be under a theory of third party participant liability, or liability as a trustee de son tort, it would appear that the available relief would be similar, if not the same.[20] For example, Tammy proposes that she may recover double damages under Probate Code section 859 under any theory of liability. We leave to the trial court the determination as to the appropriate relief in these circumstances.
IV.
DISPOSITION
The judgment of the trial court is reversed. The case is remanded to the trial court with the following directions:
(1) the trial court shall consider the evidence presented at trial and determine whether Tammy has prevailed on her claim that Barbara is liable as a trustee for breaches of trust owed to the beneficiaries after Lenora's death under a trustee de son tort theory;
*1509 (2) the trial court shall find in favor of Tammy on her claim against Barbara for Barbara's actions as a third party who actively participated in Lenora's breach of trust; and
(3) after resolving the remaining issues of liability, the trial court shall determine the amount of nonduplicative damages Barbara is to pay to reimburse the trust, under either or both theories of liability (depending on the court's determination of liability under the trustee de son tort theory), and/or whether relief apart from money damages would be appropriate under the circumstances.
The trial court may conduct any further proceedings that may be necessary in light of the trial court's judgment.
Tammy is awarded costs on appeal.
McConnell, P. J., and O'Rourke, J., concurred.
NOTES
[1] Throughout the record the parties refer to the various family members involved in this case by their first names. We adopt the same practice for clarity.
[2] Barbara is Lenora's daughter and the stepdaughter of Arthur Gilbert.
[3] A trustee de son tort is one "who is treated as a trustee because of his wrongdoing with respect to property . . . over which he exercised authority which he lacked." (Black's Law Dict. (5th ed. 1979) p. 1357, col. 2.)
[4] As we explain in part II.A. post, Barbara was also a beneficiary of the trust.
[5] Before trial, Tammy acquired the beneficial interests of both Brenda and the Church of Christ. Tammy is thus currently entitled to a 40 percent share of the trust estate.
[6] Although Parcel 17 was no longer trust property, Parcel 21 remained trust property.
[7] Lloyd resided at the same address from the time of Arthur's probate proceedings to the time of trial.
[8] Even after this lawsuit was filed, Barbara produced no records relating to the trust in response to Tammy's discovery requests.
[9] Parcel 6 and Parcel 17 are approximately the same size and contain similar soil types. Together the parcels make up a 160-acre farm.
[10] Although Tammy titled her causes of action using the word "conspiracy," the allegations supporting the causes of action did not set forth the elements of civil conspiracy. However, as we explain further, Tammy was not required to establish the existence of a civil conspiracy in order to prevail against Barbara.
The trial court also recognized that although a number of Tammy's causes of action were labeled as claims of "conspiracy," those "labels are not exactly consonant with the facts pled in some of them."
[11] The question of who is the proper plaintiff should, in most circumstances, be addressed much earlier in the proceedings, not after a full trial on the merits of an action. Barbara's only mention of the issue of standing during any of the pretrial proceedings came in the form of the following unexplained, general assertion in her answer to the FAC: "PLAINTIFF LACK OF STANDING [sic]." Barbara simply never challenged Tammy's standing in any substantive way. As a result, the parties and the court invested significant time, energy and resources in a trial, when, if the trial court were correct in its ruling, all of this would have been wasted.
[12] In relation to this principle, the authors do offer citations to two California cases, Atascadero, supra, 68 Cal.App.4th at page 467 and Wolf v. Mitchell (1999) 76 Cal. App. 4th 1030, 1041 [90 Cal. Rptr. 2d 792] (Wolf). However, Scott and Ascher do not cite these cases as authority for the proposition in question; rather, they simply note that these cases "cit[e] the text" of their work with regard to this principle. (5 Scott & Ascher on Trusts, supra, § 29.1.11.4, p. 1999, fn. 2.) Although both the Atascadero and Wolf courts referred to a prior edition of the text (i.e., 4 Scott on Trusts (4th ed. 1989) § 294.4, pp. 104-105) and cited the text with regard to this rule, in neither of these cases was the court required to adopt or reject the rule. As the Wolf court explained: "In Atascadero the Court of Appeal considered a passage of Scott on Trusts which notes that a beneficiary should not be allowed to maintain an action against a third party that actively participates in a breach of trust if the offending trustee has been removed and a successor appointed. (Atascadero, supra, 68 Cal.App.4th at p. 467, citing 4 Scott on Trusts, supra, § 294.4, pp. 104-105.) The court had no occasion to apply this rule in Atascadero because the county remained the trustee of the [statutory investment trust] both during and after the breaches of fiduciary duty, even though the occupant of the county treasurer position had changed. (68 Cal.App.4th at pp. 468-470.) We also have no occasion to consider whether the rule suggested by this passage of Scott on Trusts should be applied in an appropriate case. Here a current cotrustee (Fred) is alleged to have actively participated with the prior trustee (David) in the breaches of trust alleged in the complaint. Indeed, he is alleged to have been the primary recipient of the funds dissipated from the trust. Under these circumstances, `. . . it is unnecessary for the beneficiar[y] to call on [the current trustee] to undo what he has done.' (4 Scott on Trusts, supra, § 294.1 at p. 100.)" (Wolf, supra, 76 Cal.App.4th at p. 1041.)
[13] Although Tammy is suing as a beneficiary of the trust, her recovery may be directed to the trustee: "When the beneficiaries are successful in a suit against a transferee of trust property, the court ordinarily orders the defendant to pay the trustee." (5 Scott & Ascher on Trusts, supra, § 29.1.11.2, p. 1996.) Although Barbara may not have been the "transferee of trust property," the same concepts apply to her as a third party participant. (See Wolf, supra, 76 Cal.App.4th at pp. 1039-1041 [referring to and relying on similar authority regarding "transferees of trust property" in suit against a third party who participated in breaches other than the transfer of property to the third party].) Tammy thus may recover from Barbara the value of the lost property that is required to make the trustand not only Tammywhole.
[14] Tammy clearly brought these undetermined issues to the trial court's attention. She asked the court to clarify its finding that Barbara "`acted as trustee subsequent to the death of Lenora and prior to the succession of Lloyd,'" and specifically asked the court whether Barbara had become a trustee de son tort and whether Barbara had, in this capacity, breached her duties to the beneficiaries. However, the trial court did not address Tammy's concerns, instead concluding that both parties "failed to comply with the statutes and rules of court relating to the preparation of a statement of decision," and declaring that the "failure [wa]s so complete that the court cannot discern what controverted issues it is required to address." The trial court improperly rejected Tammy's proposed statement of decision in its entirety on the ground that it included some legal analysis with which the court did not agree. Tammy presented a host of issues that remained unresolved. The trial court's ruling could have benefited from consideration of these matters.
[15] Tammy contends that the trial court did not properly consider whether Barbara was a trustee de son tort because the court instead addressed whether Barbara was a de facto trustee. Although the trial court may have used the term "de facto trustee" rather than "trustee de son tort" to describe Tammy's theory of Barbara's liability, the court nevertheless determined that, at least during the time that Lenora was alive, Barbara did not assume the role of de facto trustee or trustee de son tort. However, the trial court made no findings with regard to whether Barbara could be liable as a trustee de son tort for her actions after Lenora's death, despite the fact that the trial court determined that Barbara "acted as trustee" at that point in time.
[16] Black's Law Dictionary has more recently altered its definition of trustee de son tort to the following: "A person who, without legal authority, administers a living person's property to the detriment of the property owner." (Black's Law Dict. (8th ed. 2004) p. 1554, col. 1.)
[17] The England court also found that the defendant had an agreement with the plaintiff in which he agreed to act in the capacity of trustee for the benefit of the estate, and that under this agreement, he was holding in trust for the estate all of the money he collected. (England, supra, 196 Cal. at pp. 265-267.) However, the court concluded that an alternative ground for imposing liability on the defendant with respect to the property belonging to the estate was that he was a trustee de son tort of the property. (Id. at pp. 267-268.)
[18] It is possible that the trial court will conclude that Barbara should not be held liable as a trustee de son tort for certain breaches for which an express trustee might be liable, since, unlike a situation involving an appointed trustee who necessarily has a relationship to all of the trust property, a court imposes trustee de son tort liability with respect to an individual's conduct in relation some particular item or property. This particular item or property might not be coextensive with the trust property as a whole.
[19] Although Tammy does present a reasoned argument in support of her contention that she is entitled to an award of excess attorney fees that she would not have incurred if a proceeding to recover Parcel 17 or its value had been timely filed against Lenora's estate, it does not appear that Tammy made this argument in the trial court or that she presented any evidence as to how the court could determine such damages.
[20] Again, the court may direct that damages sought by a beneficiary be paid to the trustee. Thus, there is no reason to limit a beneficiary's recovery on behalf of the trust to only that amount to which that beneficiary is independently entitled.
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113 N.J. 40 (1988)
549 A.2d 792
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WALTER M. GERALD, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued May 5, 1987.
Decided October 25, 1988.
*47 Lowell Espey and Kathryn A. Brock, Designated Counsel, argued the cause for appellant (Alfred A. Slocum, Public Defender, attorney).
James R. Wronko, Deputy Attorney General, argued the cause for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney; James R. Wronko and Boris Moczula, of counsel and on the briefs).
The opinion of the Court was delivered by CLIFFORD, J.
Defendant was convicted of numerous offenses, including capital murder, surrounding an incident that resulted in the death of Paul Matusz. On the capital murder conviction defendant was sentenced to death, wherefore his appeal to this Court is as of right under Rule 2:2-1(a)(3). We affirm all of the judgments of conviction except the one for capital murder as charged in the thirteenth count of the indictment. On the capital murder charge the State acknowledges the necessity for a new penalty-phase proceeding, for the reasons expressed in the course of this opinion. Beyond that we have determined that defendant is entitled to a new trial on the question of guilt on that charge.
*48 I
A
The evidence produced at trial fully supported the version of the facts that follows.
John Matusz, eighty-nine years old, lived with his son Paul, age fifty-five, at the Matusz home in Pleasantville, in Atlantic County. Their home was located on a dark wooded corner in a secluded area. The elder Matusz, disabled because of a stroke, could walk only with the aid of a cane. Inasmuch as neither John nor Paul was self-sufficient, two of John's daughters, Helena Gaw and Lottie Wilson, took turns staying in the home, cooking, cleaning, and caring for both men.
On Friday, August 13, 1982, Lottie Wilson was staying at her father's home. At approximately 6:30 p.m., John Matusz retired for the evening to his first floor bedroom. Paul Matusz went to his upstairs bedroom where he watched television and later retired. In the living room Mrs. Wilson watched a baseball game on a new color television set, which sat atop an old console television set that no longer functioned. At approximately 9:30 she went to bed in her father's bedroom. Soon thereafter she heard a noise in the other first floor bedroom and went to investigate. As she opened the door to that room, she was struck in the eye by someone standing behind the door. Mrs. Wilson was then attacked by two black males, one of whom she later described as husky, tall, with a round face and a mustache or beard. One of the intruders had a knife or blade, although Mrs. Wilson was unable to recall which of the two it was. She was thrown to the floor, punched and kicked in the face, and then hurled into the bathroom. Mrs. Wilson recalled lying on the bathroom floor being stomped on a number of times about the face and chest by someone wearing a white-soled shoe. This man told her, "Shut up or I'll kill you." When he asked where the money was kept, she revealed the location of her purse. When her brother Paul heard Mrs. Wilson's screams, he came downstairs to investigate, whereupon *49 two black males attacked him at the foot of the staircase. One of the men struck Paul in the face with a television set.
Shortly after the foregoing events, and not knowing whether the intruders were still in the house, Mrs. Wilson arose and went to the kitchen, where she telephoned her sister and the local police. Then Mrs. Wilson entered the living room where she saw her brother Paul lying on the floor with the old console TV overturned on his face. After succeeding in lifting the set from his face and turning it upright, Mrs. Wilson found Paul's face cold to her touch. John Matusz had been beaten and dragged from his bed into the hallway. He was leaning against the wall, bleeding profusely, still clutching the top portion of his cane, which was broken in half. Missing were Mrs. Wilson's purse with about $60 in cash, the new color television set, and an old black and white portable television set from Paul's upstairs bedroom.
Officer John Calcerano and Detective Henry Frank of the Pleasantville Police Department arrived at the Matusz home within minutes of Mrs. Wilson's telephone call. Although hysterical, Mrs. Wilson described the perpetrators and the events generally as recited above. Mrs. Wilson's face was swollen and beaten. Paul Matusz was unconscious and bleeding from the nose and mouth. On checking for signs of life, Detective Frank found that Paul was not breathing and had no pulse. Frank cleared Paul's air passage and began cardio-pulmonary resuscitation. A third officer who arrived soon afterwards found Paul's pulse to be very weak. The officer continued the efforts to revive the victim. In the meantime Officer Calcerano applied bandages to John's wounds. All three victims were then taken to the hospital by ambulance. Other law-enforcement personnel arrived on the scene. The house was dusted for finger-prints none of which, as it was later determined, matched any of the defendants' prints. The officers concluded that the attackers' point of entry was a window in the first-floor bedroom in which Mrs. Wilson first was assaulted. The woodframed *50 screen had been pried off from the outside to permit access.
Paul Matusz, who suffered two fractured ribs, a broken nose, and multiple contusions of the face, sides of the head and brain resulting from blows to the head, died in the emergency room at Shore Memorial Hospital at about 10:48 p.m. He did not regain consciousness before death, and therefore made no statement regarding the identity of his assailant or assailants. When Dr. Donald Jason, Atlantic County Medical Examiner, examined Paul Matusz that night at the morgue, he noticed bruises across his face in three patterns. On Paul's forehead there were four imprints of a circular pattern, consisting of four concentric circles. Second, there was a herringbone-type pattern on the forehead next to the circular patterns. On the victim's face, below the right eye and to the left of the nose, there was a third pattern bruise, consisting of multiple rectangles. These bruises were photographed the next day at the autopsy, and according to Dr. Jason and various police witnesses the pictures accurately depicted the victim's appearance. Dr. Jason also observed a patterned bruise, consisting of four concentric circles, on Mrs. Wilson's face.
According to Dr. Jason, Paul's death was caused by blunt-force injuries to the head, specifically, cerebral concussions and a fractured nose, inflicted by blows of the fists and feet. These injuries resulted, respectively, in contusions and swelling of the brain, and aspiration of blood into the airway and lungs. Together, these conditions produced Paul's death. Because no blood was found in the victim's stomach, Dr. Jason concluded that Paul's nose was fractured after he lost consciousness. Had he been conscious, his gag reflex would have forced him to swallow the blood rather than inhale it into his lungs. Dr. Jason observed on Paul's nose a discernible sneaker print that could have been produced by the same force as caused the broken nose. He acknowledged as well that the console television set falling on Paul's face could "possibly" have fractured *51 his nose, thereby resulting in the aspiration of blood as he lay unconscious on the floor.
Concerning the blows to the head, Dr. Jason concluded that a single first blow could have fractured the nose and simultaneously caused unconsciousness, but he pointed out that at least some of the blows to the head, especially on the left side where the most severe contusions of the head and brain were found, were delivered after Paul was unconscious. Finally, Dr. Jason determined that a single blow could not have caused the brain injury or the other injuries that he observed. Rather, the doctor surmised that the sum of the numerous blows and resultant various injuries caused the death; that it was medically impossible for him to differentiate the "fatal" blow from all others, and that this would have been so even had he watched the beating take place; and that while some of the blows might not have contributed to death, he could not specifically identify which ones had and which had not.
John Matusz suffered bruises and lacerations of the face from blunt-force injuries. There were indications that he had probably been beaten with a lamp. Those injuries required continued hospital care and convalescence treatment. He died on October 3, 1982, without ever having returned home. Lottie Wilson suffered a broken nose, abrasions, lacerations and contusions of the face, neck, and chest due to several blows, as well as smaller contusions on the rest of her body. She was hospitalized until August 25, 1982; her jaws were wired together for six weeks following the attack.
B
On August 16, 1982, Detective Frank received a call at home from an unknown informant who said that Walter Gerald, Jody Reese, and Nelson Drakeford had committed the Matusz murder. The informant reported that Gerald had offered to sell the informant stolen television sets and had told the informant how easy the burglary had been. The informant further told Detective *52 Frank where Gerald lived and the type of car he drove. Finally, the informant stated that he wanted to be paid. Detective Frank told him to call Crime Stoppers, an organization that pays for information leading to the arrest and indictment of criminals.
Detective Frank immediately went to the Pleasantville Police Department. While he was there, the follow-up call came in from Crime Stoppers, repeating the information summarized above and providing additional information. The police learned that there were two outstanding arrest warrants for Gerald, both for failure to appear in municipal court on traffic tickets.
That same afternoon Detective Frank and Investigator McIntyre of the Atlantic County Prosecutor's Office drove in an unmarked car to Gerald's home, where over a period of about one hour they observed Gerald sitting on his car, talking with his friends, and driving to and from a nearby store. As Gerald, who knew Detective Frank, drove by, he waved at the detective. The informant's description of the car matched Gerald's automobile. The authorities having decided to arrest Gerald on the outstanding warrants, Detective Frank and Investigator Raymond Bolis of the Prosecutor's Office executed the warrants by arresting Gerald at his home later that evening. At the time of the arrest Frank informed Gerald of the outstanding warrants, and also indicated that the police wanted to speak with him in connection with another matter. The police also questioned Drakeford and Reese, whom they released after the two denied any involvement. Both men indicated, however, that they had been importuned by Gerald, John Bland, and Eddie Walker to participate in the robbery.
After arresting Gerald, Detective Frank and Investigator Bolis drove him to police headquarters where Gerald was held in lieu of $85.00 cash bail on the arrest warrants. Detective Frank informed Gerald of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966)), whereupon Gerald indicated that he understood *53 those rights. He signed a waiver, witnessed by Detective Frank and Investigator Bolis, and agreed to talk to the police.
Although the discussion initially focused on the outstanding traffic tickets, Detective Frank eventually told Gerald about the Matusz murder and that he was a suspect. Gerald denied any involvement, offered two different stories about his whereabouts on the evening of August Thirteenth, and said he wanted to cooperate. The officers told him they did not believe his story. Gerald continued to deny his involvement in the burglary and murder for the next two hours while the police persisted in their questioning. During this time Gerald was allowed to go the bathroom (accompanied by a police officer), eat dinner, and drink soda; he was not free to leave, however, on the theory that he was under arrest for the contempt-of-court warrants and was awaiting admission to bail. During this time, according to the police officers, Gerald showed no signs of intoxication or influence of drugs. He neither asked for an attorney nor requested that questioning cease. During "casual conversation" with Investigator Bolis, Gerald indicated that he did not use drugs because he was an athlete and harbored a concern that drugs would ruin his body.
After approximately two hours of questioning, Gerald agreed to submit to a polygraph examination, whereupon Bolis left the room to find a qualified examiner. During Bolis's absence Gerald sat with his legs extended and crossed in such a way that Detective Frank was able to see the tread design on the sole of the suspect's sneakers. Part of the tread consisted of a design similar to the concentric circular bruises found on Paul Matusz's forehead. When Frank asked if he could take a closer look at the sneakers, Gerald agreed and took them off. The detective put the sneakers on the desk, and both he and Gerald took a close look at them. There were a few red spots on the top of the sneakers. When asked what the red spots were, Gerald said that he did not know. Detective Frank pointed out the similarity between the tread design and the bruises on Paul Matusz's forehead, face, and nose, Gerald replied, "Well, I *54 wonder how many pair of sneakers like that Converse made." Detective Frank responded that Converse probably made thousands. Investigator Martella brought into the room a set of "contact sheets" (sheets containing negative-size prints of photographs) depicting the patterned bruises on Paul Matusz. Martella gave Frank and the defendant his magnifying glass, and all three examined and compared the photographs with the sneakers. Gerald did so with great interest. Detective Frank then told Gerald that he was going to keep the sneakers as evidence.
Investigator Bolis returned to the detective bureau. George Dix, the town's mayor and a retired New Jersey State Trooper, had agreed to administer the polygraph examination. Dix, who was in the municipal building for a town council meeting, initially did not want to test Gerald because he had known him for years and had been Gerald's football coach. Dix's daughter and Gerald were friends and had attended high school together, and Dix saw Gerald every Saturday at football games. As recently as a year before, Dix had written Gerald a letter of recommendation. As he was taking Gerald to Mayor Dix for the polygraph exam, Bolis noticed that Gerald was not wearing any shoes. Gerald indicated that some new evidence had been found, and that the pattern on his sneakers matched the bruises on the deceased.
Prior to administering the polygraph examination, Mayor Dix, who admitted that he hoped Gerald would "pass," stressed that Gerald did not have to submit to the exam, and in fact told Gerald that if he was in any way involved, he should not take the test. Gerald said he was not involved and could pass the test. Dix gave Gerald a rights form, which he read and signed. The test lasted about ninety minutes. When it was completed, Dix informed the detectives, who were awaiting the results, that in his opinion Gerald was not being truthful in denying involvement in the burglary-murder. Detective Frank and Mayor Dix informed Gerald of the results of the polygraph, and Dix told Gerald that if he did not commit the murder, he had *55 better say who did. Gerald responded by saying he wanted to "straighten the whole thing out," and asked to speak with Chief of Police Ralph Peterson, who, it happened, was also was in the building for the town council meeting.
Peterson and Gerald had been friends since Gerald was nine or ten years old. They had known each other primarily through a youth athletic organization started by Peterson and known as "Pete's Boys" (now Pleasantville Police Athletic League) to help keep Pleasantville youngsters out of trouble. Chief Peterson's family also saw the Gerald family socially.
Detective Frank told Chief Peterson that Gerald wanted to speak with him and that Gerald was involved in the Matusz matter. Chief Peterson and Gerald went into an office alone, where Gerald said that he had driven by Chief Peterson's house a couple of times since the crime and had tried to tell him what happened, but had lost his nerve. Chief Peterson recalled having seen Gerald drive by his home a couple of afternoons previously, when both men waved. Chief Peterson asked Gerald whether he was involved, and Gerald said, "I was there." Realizing that the suspect was about to confess, the Chief stopped Gerald and asked Mayor Dix to come into the office as a witness. Once Dix arrived, Chief Peterson advised Gerald of his Miranda rights, whereupon Gerald gave a statement.
Gerald said that he, Eddie Walker, and John Bland had entered the Matusz house, intending to steal a television set that they previously had seen from outside the house. Gerald "had" the woman, and admitted striking her a couple of times. Walker had the younger man (Paul), while Bland aroused the old man (John) from bed. The younger man was giving Walker a lot of trouble, so Gerald and Bland went to assist Walker. They beat the younger man with their hands, then left him alone. Gerald went back to the woman, and Bland returned to the old man. Bland beat the old man with a lamp and a cane, or both. Gerald said that Walker "just went off" on the younger man, hitting him with a trophy, punching him, and *56 throwing a television set on his face. Gerald also stated that on his way out of the house, he stepped on the younger man. Chief Peterson asked, "What do you mean, you stepped on him? Did you stomp the man?" After hesitating, Gerald replied that he did step on him, did put his foot in the man's face, but did not stomp on him. He then began telling the Chief where the television sets were, but Peterson, by now very upset, did not want to hear any more. He told Gerald, "I'm going to bring the other fellows [detectives] in. You cooperate with them and tell them all your involvement."
The conversation between the Chief and Gerald then continued on a personal level. Gerald, who was remorseful crying and sobbing during the confession said he did not know what had gotten into him. During the discussion the Chief noticed that Gerald's eyes looked "funny," and he appeared to be high and tired. Gerald said that he was tired, that he had not slept since the crime, that he had been high ever since, and that he had taken drugs earlier that day, August Sixteenth.
Chief Peterson turned Gerald over to Detective Frank and Investigator Bolis, assuring them that Gerald would direct them to the location of the television sets. The Chief also informed Frank, who was waiting outside, that Gerald needed to use the bathroom. Gerald told Frank, who accompanied him to the bathroom: "I can see by the sneaker prints that you have me. When we get back in there, I'll tell you what happened." Investigator Bolis indicated that they wanted a taped statement. Gerald said he would answer all their questions but would not give a taped statement until he had retained an attorney. He said that once he had retained an attorney, he would tell the attorney of his desire to cooperate and give a statement. Bolis and Frank offered to cease the questioning, but Gerald said no, that he would feel better talking about it. The testimony at trial and the suppression hearings is in conflict on whether Gerald was then advised of his Miranda rights a fourth time. He did, at that point, give a similar but more detailed oral account of the burglary. Gerald again *57 admitted to assisting in beating Paul Matusz and accidentally stepping on him a couple of times while running around the house.
Based on Gerald's confession, Pleasantville police and investigators from the Prosecutor's Office arrested John Bland, whose statement recounted the same events, with but minor variations. Bland also reported that one day after the murder, Gerald told Walker and Bland that he thought he had killed Paul Matusz because he had "stomped him real bad." Eddie Walker, who had turned sixteen a few days before the murder, fled to Canada and Florida. He surrendered to the Pleasantville Police on October 18, 1982. Walker's pretrial statement did not implicate defendant.
II
On December 16, 1982, an Atlantic County Grand Jury returned an indictment charging Gerald with conspiracy to commit second-degree burglary, contrary to the provisions of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one); second-degree burglary, contrary to the provisions of N.J.S.A. 2C:18-2 (count two); conspiracy to rob John Matusz, Paul Matusz, and Lottie Wilson, contrary to the provisions of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); three counts of second-degree robbery of the same victims, contrary to the provisions of N.J.S.A. 2C:15-1(a)(1) (counts four, five, and six); three counts of second-degree aggravated assault on the same victims, contrary to the provisions of N.J.S.A. 2C:12-1(b)(1) (counts seven, eight, and nine); felony murder of Paul Matusz, contrary to the provisions of N.J.S.A. 2C:11-3(a)(3) (count eleven); and knowing or purposeful murder of Paul Matusz, contrary to the provisions of N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) (count thirteen). The indictment also charged John Bland with the same crimes. Jurisdiction over Edward Walker, who was a juvenile, was waived from juvenile court to Superior Court, and he too was charged with those same crimes.
*58 The State gave timely written notice that it would seek to prove three aggravating factors under N.J.S.A. 2C:11-3(c): first, defendant purposefully or knowingly created a grave risk of death to another person in addition to the victim during the commission of the murder ((4)(b)); second, the murder was outrageously or wantonly vile, horrible, or inhuman ((4)(c)); and third, the offense was committed during the commission of, or attempt to commit, or flight after attempt to commit or commission of robbery, sexual assault, arson, burglary, or kidnapping (felony-murder) ((4)(g)), thus making this a capital case.
Several pretrial motions were made in late 1983. First, the court denied a motion by Gerald and Bland to close the pretrial hearings from press coverage and the public in order to prevent prospective jurors from being tainted by exposure to inadmissible evidence through the press.
Gerald also filed motions challenging the legality of his arrest and seeking to suppress both his oral statements and evidence seized while he was in custody. Bland joined in the suppression motions. Those hearings were conducted over a two-month period. The State called thirteen witnesses, primarily police officers, whose recitations of the events corresponded with the version described above. Gerald and Bland testified as well.
Gerald said that when he was arrested on August 16, 1982, there was no discussion of bail for the traffic tickets. He claimed that during the interrogation, Investigator Bolis constantly threatened him and called him foul names. He also claimed that he was under the influence of alcohol and drugs during the questioning, and that he had asked the officers if he could rest, or come back when he was "normal," but they refused. Gerald contended that he had been taking drugs (cocaine and heroin) and drinking all day (three to four pints of Southern Comfort and three to four six-, eight-, or twelve-packs of beer). He also related that he had a beer in his hand when he was arrested at his front door. On cross-examination, *59 Gerald admitted that he had been taking that quantity of drugs and alcohol for about a month, but claimed that he was not accustomed to it and that he had stumbled a lot. He conceded that he was in control of his faculties to a certain extent, that he was capable of answering questions to a certain extent, that he knew he could ask for an attorney (he later said that he did make such a request), and that he never asked that questioning cease.
Concerning the waiver of his rights, Gerald said that Detective Frank threw the Miranda card at him, told him to sign it, and indicated that if he told him the truth, he could go home. Gerald said that he did not read the card. Moreover, he claimed to have asked for an attorney more than once, but that Detective Frank told him that if Gerald told him what he wanted to know, he would not need a lawyer. Gerald did not recall being informed of his rights by Mayor Dix or Chief Peterson.
In arguing against Gerald's and Bland's various motions, the State asserted that Gerald's arrest and detention were valid under State v. Bruzzese, 94 N.J. 210 (1983), cert. den., 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984), and that defendant's sneakers had been properly seized as incident to his arrest. The State further contended that Gerald was mentally alert, was informed of his rights and was cognizant of them, and voluntarily waived those rights. The defense responded that the arrest was illegal because of the absence of probable cause, wherefore the fruits of the arrest should be suppressed. Further, Gerald contended that ill treatment by the police, coupled with defendant's intoxication, rendered the confession invalid as involuntary.
The trial court ruled against both Gerald and Bland on all motions. The court found that Gerald's arrest fell well within the Bruzzese ruling and further determined that defendant had been informed of his rights and voluntarily waived them. Although the court acknowledged that it might appear that there had been some overreaching by the police when Chief Peterson *60 told Gerald that it would be best to cooperate and to tell the detectives everything that Gerald had told the Chief, the court ruled that the totality of circumstances demonstrated that Gerald's free will had not been overborne, especially because immediately after giving a statement, Gerald refused to make one that would be taped. The court further determined that defendant's erroneous belief that his oral statement was somehow less damaging than a taped or written statement was irrelevant. In addition, the court found that the defendant never asked for an attorney. Finally, the court concluded that the evidence showed that Gerald wanted to talk, and that the seizure of the sneakers after police observance of the tread design was authorized as incident to the arrest.
Gerald also moved to strike the death penalty law as unconstitutional on both federal and state grounds; to secure an evidentiary hearing on the issue of disproportionality of sentencing; to have the grand jury consider only the evidence of murder and not of the lesser crimes; to require that the grand jury determine whether the aggravating factors existed; to have an evidentiary hearing for the purpose of determining whether a death-qualified jury is unrepresentative or not impartial (conviction-prone); to obtain separate juries in the guilt and sentencing phases; and to foreclose the prosecution on the grounds that it was selective and in violation of the equal-protection guarantee. The trial court denied all motions.
On March 1, 1984, the trial court accepted a plea arrangement between the State and John Bland. Although the details of the agreement are somewhat unclear, the State promised to recommend a sentence of life imprisonment in return for Bland's guilty plea on the felony murder charge and in consideration of Bland's agreement to testify against Gerald at the latter's trial. On April 2, 1984, Edward Walker entered pleas of guilty to burglary and robbery of the three victims. The State dismissed the balance of the indictment and recommended a thirty-five-year term of imprisonment with a sixteen-year period of parole ineligibility. Walker too agreed to testify *61 against Gerald. Neither co-defendant had been sentenced at the time of Gerald's trial.
The State offered defendant a recommended term of life imprisonment in return for a guilty plea to felony-murder, which Gerald rejected. During the two-week guilt phase trial, the State called twenty-four witnesses, including both Bland and Walker. Walker testified that Gerald and he beat Paul Matusz, that Gerald knocked Paul unconscious, and that Gerald continued thereafter to strike the victim. According to Walker, when he tried to remove the new color television set in the living room, the old console set on which it sat fell over onto Paul's face. When Walker asked Gerald whether he should pick up the console television, Gerald replied, "leave it there." On cross-examination Walker, whose pretrial statement did not implicate Gerald, admitted that he had lied in that statement because he did not want to "snitch" on Gerald, and because he wanted to exculpate himself. Bland testified that before entering the house, Gerald told Walker, "you don't have to worry about anything physical. I will take care of that." Both Bland and Walker testified that all three had consumed large quantities of alcohol and drugs on the day of the murder.
Both the Medical Examiner and a State Police forensic chemist testified that the patterned bruises on Paul Matusz's face the concentric circles were consistent with the tread design on the soles of Gerald's sneakers. The forensic chemist further testified that the patterned bruises were inconsistent with the tread design on other sneakers admitted into evidence, belonging to the co-defendants. In addition, the Medical Examiner stated that the bruises could not have been caused by someone simply stepping once on Paul's face; rather, Dr. Jason distinguished four separate footprints, each inflicted with a significant amount of force behind it.
Defendant neither testified nor presented any witnesses, relying solely on cross-examination of the State's witnesses. The trial court denied defendant's motion for dismissal or judgment *62 of acquittal on the third count conspiracy to rob and for a judgment of acquittal of purposeful or knowing murder.
The jury found defendant guilty of conspiracy to commit burglary (count one); burglary (count two); conspiracy to commit robbery (count three); three counts of robbery (counts four, five, and six); two counts of aggravated assault on Paul Matusz and Lottie Wilson (counts eight and nine); felony murder (count eleven); and purposeful or knowing murder (count thirteen). It acquitted Gerald on the seventh count, charging an aggravated assault on John Matusz.
At the sentencing phase, in light of the acquittal on the seventh count, the State withdrew aggravating factor (4)(b) (creating a grave risk of death to a person other than the victim), and sought to prove aggravating factors (4)(c) (outrageously and wantonly vile murder), and (4)(g) (murder during a felony, to wit, robbery). The defense sought to establish the following mitigating circumstances: (5)(a) (extreme mental or emotional disturbance); (5)(c) (age); (5)(d) (impairment of capacity to appreciate wrongfulness of conduct or conform conduct to requirements of law); (5)(f) (no significant history of prior criminal activity); and (5)(h) (any other factor that is relevant to the defendant's character or record or to the circumstances of the offense).
The State called two witnesses. Dr. Jason, the Medical Examiner, provided testimony directed at establishing aggravating factor (4)(c), and Investigator Bolis testified to the robbery and confession to establish the felony-murder factor. The court denied a defense motion to strike factor (4)(c).
The defense called six witnesses. One psychiatrist diagnosed Gerald as severely depressed and drug-dependent. A second psychiatrist furnished a diagnosis of severe personality disorder and drug addiction. He also offered the view that Gerald's obsessive preoccupation with the need for drugs either rendered him unable to control his behavior or impaired his control. An anthropology and sociology professor testified about the *63 "failure syndrome" and correspondent depression and alcohol and drug dependence in poor urban subcultures.
Defendant testified, expressing his sorrow for what had happened to the Matusz family and to his own family. On cross-examination, he admitted that he punched Paul Matusz a few times but denied ever stomping him. He also denied making certain statements to the police. Two of Gerald's sisters testified, describing their family life, the effect that their father's death had had on Gerald, and defendant's use of alcohol and drugs. The court charged the jury that if it found, beyond a reasonable doubt, that any mitigating factor did not outweigh any aggravating factor or factors, the defendant would be sentenced to death. The court also charged the jury that in reaching its verdict it was not to consider any bias, prejudice, or sympathy.
The jury returned a verdict finding both aggravating factors beyond a reasonable doubt. It also determined that Gerald was suffering from extreme mental or emotional disturbance; that his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was impaired; and that he had no significant history of prior criminal activity. The jury did not find that defendant's age was a mitigating factor. Although the verdict form indicates that the jury did find mitigating factor (5)(h) (any other factor relevant to the defendant's character or record or the circumstances of the offense), it is not clear what factor, if any, was considered. The jury further found that the mitigating factors neither outweighed the aggravating factors nor were they of equal weight. The court sentenced Gerald to death.
III
Several issues raised by defendant have been resolved by our decisions in State v. Biegenwald, 106 N.J. 13 (1987), and State v. Ramseur, 106 N.J. 123 (1987). With some important qualifications, we concluded in Ramseur that neither capital punishment *64 per se nor New Jersey's death-penalty statute, N.J.S.A. 2C:11-3(c) (the Act), violates the prohibition against cruel and unusual punishment contained in the U.S. Constitution, amendments VIII and XIV, and in Article I, paragraph 12 of the New Jersey Constitution of 1947. See Ramseur, supra, 106 N.J. at 166-97.
The trial court, in compliance with the statutory provisions then in force, instructed the jury in the penalty phase to determine whether the totality of mitigating factors outweighed or equalled the totality of the aggravating factors beyond a reasonable doubt. The charge requires reversal. Under the charge given, a finding that the aggravating and mitigating factors were in equipoise would have resulted in a death sentence, a result proscribed by Biegenwald, supra, 106 N.J. at 62. Nor is Biegenwald's requirement that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt satisfied by a finding, as here, that the aggravating factors were neither equal to nor outweighed by the mitigating factors. As we stated in Biegenwald:
[W]e believe that the phrasing of the question is more disadvantageous to the defendant than is suggested by the logical analysis wherein the only difference results where the factors are "in equipoise." It is not a very substantial change in a juror's mind that is required to transform "you must find, beyond a reasonable doubt, that the aggravating factors are not outweighed by the mitigating factors" to "you must find, beyond a reasonable doubt, that the mitigating factors outweigh the aggravating factors."
[Id. at 61.]
Thus, as the State concedes, the absence of a specific finding that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt requires vacation of the death sentence and a resentencing hearing to determine whether the death penalty should be imposed.
Defendant further contends that the Act unconstitutionally promotes irrational sentencing because felony-murder can be considered either as an aggravating factor to capital murder, N.J.S.A. 2C:11-3(c)(4)(g), or a homicide of a lesser degree, N.J.S.A. 2C:11-3(a)(3), punishable by a term of thirty years to *65 life imprisonment. We rejected that argument in Ramseur, concluding that Section (c)(4)(g) is "unquestionably constitutional." 106 N.J. at 189-90 n. 21 (citing Calhoun v. State, 297 Md. 563, 625-26, 468 A.2d 45, 75 (1983), cert. den., 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984)). We reaffirmed that conclusion in State v. Bey, 112 N.J. 123, 172-173 (1988) (Bey II), and do so again today.
In a like manner, we observed in Ramseur that aggravating factor (4)(c) the "murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim" was "troublesome because of its obvious vagueness." 106 N.J. at 198. However, in line with the Supreme Court's pronouncements in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), we adopted a narrow construction of that language in order to guide the jury's discretion in applying that factor. Accordingly, we concluded that the first part of the provision the "murder was outrageously or wantonly vile, horrible or inhuman" was "[n]either an independent requirement [n]or a qualitative modification of what follows." Ramseur, supra, 106 N.J. at 200. In respect of the second part of the provision the murder "involved torture, depravity of mind, or an aggravated battery to the victim" we determined that in adopting this language, the Legislature was concerned with the defendant's state of mind: "society's concern, the community's concern, the Legislature's concern, is to punish most harshly those who intend to inflict pain, harm and suffering in addition to intending death." Id. at 207-08. We summarized our interpretation of the statutory language as follows:
Torture or aggravated battery to the victim shall be found if the defendant intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim's death, "severity" measured either by the intensity of the pain, or the duration of the pain, or a combination of both. Where the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder, and served no purpose for the defendant beyond his pleasure of killing, the court shall instruct *66 the jury on the meaning of depravity in this specific context. For the defendant who killed for the enjoyment of it, because the victim just happened to be in the area, or for no reason at all, just to kill, society must be able to reserve its most extreme sanction.
[Id. at 211 (footnotes omitted).]
Without the benefit of our opinion in Ramseur, the trial court in this case first construed the introductory portion of Section (c)(4)(c) as a requirement independent of the second portion. Second, the court improperly defined torture and aggravated battery to focus on the state of mind and physical experiences of the victim. Third, the court erroneously defined depravity of mind as "a complete indifference to human dignity and a total and senseless disregard for human life." The State concedes that the charge was improper under the standard stated above. However, the defendant and the State disagree on whether the evidence produced was sufficient to sustain a jury finding that this factor existed even under the Ramseur definitions. Defendant contends that the evidence did not demonstrate a purposeful infliction of pain in addition to death, and that therefore there was no torture or aggravated battery. Further, defendant argues that "depravity of mind," as defined in Ramseur, cannot be proven because the murder was not motiveless but rather was the product of "greed, or anger at the victim's resistance." The State counters that the extensiveness of the beating after the victim was unconscious evidenced the fact that defendant beat the victim "for no reason other than the joy of it or because the victim was there." The "depravity" definition provided in Ramseur was designed to isolate those for whom the murder "served no purpose for the defendant beyond his pleasure of killing." 106 N.J. at 211. Given Ramseur's intention to include within the reach of the term "depravity" only those murders that are entirely without motive, we hold that where, as here, greed, anger, revenge, or other similar motive is present, the depravity aspect of Section (c)(4)(c) should not be submitted to the jury. In respect of the statutory requirement of torture or aggravated battery, we cannot agree with defendant that this record is insufficient to *67 sustain a finding that the defendant intended to and did cause "severe physical or psychological pain or suffering to the victim prior to the victim's death." Ibid.
Defendant next acknowledges that under Ramseur, the jury need not make a specific finding that "death is an appropriate punishment." 106 N.J. at 316 n. 80. However, defendant further argues that the jury's sense of responsibility for its verdict in this case was so diluted that it prejudiced defendant's right to a fair trial. On remand and, if appropriate, on sentencing after those proceedings, the trial court should instruct the jury in accordance with this Court's opinion in Bey II, supra, 112 N.J. at 161-164.
As defendant concedes, we have rejected on both federal and state constitutional grounds the argument that the process of "death qualifying" a jury denies the defendant a fair and impartial panel. See Ramseur, supra, 106 N.J. at 248-54 (citing Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986)).
Finally, defendant argues that fundamental fairness requires that the defendant be allowed to make the initial opening statement and the final summation during the penalty phase of a capital trial. We rejected that argument in Ramseur, supra, 106 N.J. at 318 n. 81 and reaffirmed that conclusion in Bey II, supra, 112 N.J. at 183-184 as we do again today.
An additional argument raised by defendant was addressed recently by this Court in Bey II. Defendant contends that the trial court improperly instructed the jury on "how [it] should collectively weigh the aggravating and mitigating factors." The court first charged the jury that it "must unanimously agree that the State has proven beyond a reasonable doubt the existence of an aggravating factor." (Emphasis added). Concerning the existence of mitigating factors, however, the court instructed the jury that
[t]he defendant has the burden of coming forward with evidence of mitigating factors. The defendant is not required to prove mitigating factors beyond a *68 reasonable doubt. However, the defendant is obligated to place before you credible evidence of the factors which he alleges to exist. It is up to you to accept or reject these factors depending upon your evaluation of the defendant's evidence. Unlike the situation with aggravating factors, your verdict does not have to be unanimous. If any one of you finds a mitigating factor exists, check "Yes" in the appropriate space on the verdict sheet. If none of you so find, check "No" next to the mitigating factor on your verdict sheet.
* * * * * * * *
If you have found beyond a reasonable doubt that an aggravating factor or factors exist, and you also find that no mitigating factors exist, then make the appropriate markings on your verdict sheet and proceed no further. That will be your verdict in the case and your duties will be at an end. Simply return the verdict sheet to the Court with your foreperson's signature. Keep in mind, however, that merely because one or more of you finds that a mitigating factor exists, this does not require all of you to find that the mitigating factor exists. If, for example, four of you find that a mitigating factor exists and eight do not so find, then the four may consider the mitigating factor in their deliberations. However, the eight who found that the mitigating factor does not exist should not consider that mitigating factor in their deliberations.
[Emphasis added.]
The charge complies with the requirements stated in Bey II, wherein we concluded, inter alia, that the jury must be unanimous in finding the existence of an aggravating factor or factors. 112 N.J. at 159. A "lack of unanimity suggests that the factor has not been established beyond a reasonable doubt as required by N.J.S.A. 2C:11-3(c)(2)(a)." Id. at 139, 548 A.2d 887. In contrast, "the defendant bears only `the burden of producing evidence of any mitigating factor,'" and does not bear the burden of proving the existence of that factor. Id. at 160 (emphasis added) (quoting N.J.S.A. 2C:11-3(c)(2)(a)). We concluded that the legislative intent was that the jurors need not unanimously find the existence of a mitigating factor, but that
[a]s long as one juror perceives any mitigating factor relating to the defendant or to the crime that is not outweighed beyond a reasonable doubt by the aggravating factors, the jury must not sentence the defendant to death. Each juror, therefore, should individually determine the existence of mitigating factors and then individually decide whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. Only after such independent weighing by each juror may the unanimous agreement of all jurors lead to the imposition of the death penalty.
[Id. at 162 (citation omitted).]
*69 We conclude that the charge given in this case was in keeping with Bey II's requirements and therefore proper.
IV
We turn now to a question that has been neither raised nor argued by the parties, but one that nevertheless demands consideration because of its importance to a just resolution of this appeal. As the South Carolina Supreme Court has declared, "where the death penalty is involved, it is the duty of this Court to examine the record for any errors affecting the substantial rights of the accused, even though not made a ground of appeal." State v. Taylor, 213 S.C. 330, 331, 49 S.E.2d 289 (1948); see also Biegenwald, supra, 106 N.J. at 62 ("In no proceeding is it more imperative to be assured that the outcome is fair than in [capital] cases"); cf. Ramseur, supra, 106 N.J. at 260 (in capital case, Court considered sua sponte whether there was plain error in voir dire of juror); Biegenwald, supra, 106 N.J. at 53 ("while defendant did not raise the issue either at trial or on appeal, we find that the trial court's instructions in the sentencing proceeding constituted plain error of a nature to warrant our consideration sua sponte."); State v. Mount, 30 N.J. 195, 213 (1959) ("where a life is at stake, this court does not hesitate in the interests of justice to invoke the plain error rule and to reverse where the trial errors were impregnated with the likelihood of having harmed the substantial rights of the defendant." (citation omitted)). We hold, on state constitutional grounds, that a defendant who is convicted of purposely or knowingly causing "serious bodily injury resulting in death" under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them as opposed to one who is convicted of purposely or knowingly causing death under those same provisions may not be subjected to the death penalty. Because the jury in this case did not specify which of the foregoing offenses defendant was convicted of, and because it is possible, on this record, that the jury could have determined that the defendant had the purpose or knowledge to cause only *70 serious bodily injury but not death, we conclude that the judgment of conviction on the thirteenth count must be reversed and the cause remanded for retrial.
We have considered, and rejected, a result that would modify so much of the judgment on the thirteenth count as declares defendant guilty of capital murder, permitting the conviction of murder to stand and remanding the cause for further proceedings to determine defendant's death-eligibility, to be followed, if eligibility be found, by a new sentencing proceeding. We have rejected that outcome because it would in effect be asking a second jury to accept indeed, to be bound by the findings of the first jury but then guess at precisely what the first jury meant. Such a piecemeal approach to guilt-innocence is unacceptable as a general proposition in any criminal prosecution. We repeat our commitment to the principle, albeit expressed in a different context, that
"[t]he requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them. It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity."
[State v. Trent, 79 N.J. 251, 256 (1979) (quoting People v. Collins, 17 Cal.3d 687, 693, 552 P.2d 742, 746, 131 Cal. Rptr. 782, 786 (1976)).]
See also State v. Ingenito, 87 N.J. 204, 212 (1981) ("[The] duties inherent in the jury function include determining the facts in the case, considering all of the relevant admissible evidence bearing upon the charges, evaluating the credibility of witnesses, assessing the weight and worth of evidence, and deciding the ultimate guilt or innocence of a defendant in light of the *71 underlying evidence."), quoted in State v. Ragland, 105 N.J. 189, 203 (1986).
A
In pertinent part, N.J.S.A. 2C:11-3 provides as follows:
a. * * * [C]riminal homicide constitutes murder when:
(1) The actor purposely causes death or serious bodily injury resulting in death; or
(2) The actor knowingly causes death or serious bodily injury resulting in death * * *
* * * * * * * *
c. Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value shall be sentenced [in accordance with the Act's capital punishment provisions] * * *.
The death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death. Justice Handler, dissenting in Ramseur, found this aspect of the Act indicative of the "extraordinary breadth" of the class of murderers potentially subject to capital punishment. 106 N.J. at 387; see also Bey II, supra, 112 N.J. at 131 (Handler, J., dissenting) (Act "does not even require that a capital defendant have intended to kill"). In support of his conclusion in Ramseur, Justice Handler looked to the criminal law as it existed prior to the adoption of the New Jersey Code of Criminal Justice (the Code) in 1978. Under the earlier statute, murder was of either the first or second degree, and only those convicted of first-degree murder were subject to capital punishment. Id. 106 N.J. at 387-88. Justice Handler summarized first degree murders under the former statute, N.J.S.A. 2A:113-2, as follows: "murders accomplished by poison or lying in wait, murders during the course of certain named felonies and the murder of a law enforcement officer," and those other murders in which the State proved premeditation, deliberation, and willful execution of the plan. Id. at 388 (citing State v. Anderson, 35 N.J. 472, 496-97 (1961)). All other murders were presumptively of the second degree, and *72 were therefore non-capital crimes. Ibid. The Ramseur dissent noted that although the current Act "includes, as capital murder, death that results solely from the intentional infliction of serious bodily harm[,] [i]t was clear under the former law that the intent only to do serious bodily harm was insufficient for a first degree murder conviction." Id. 106 N.J. at 388-89 (citing State v. Thomas, 76 N.J. 344 (1978); State v. Madden, 61 N.J. 377 (1972); State v. Anderson, supra, 35 N.J. at 497; State v. Wynn, 21 N.J. 264 (1956)).
The Ramseur majority responded to the dissent's "overbreadth" argument not only by agreeing that an intent to inflict serious bodily harm was not sufficient to sustain a first degree murder conviction under the former statute, but also by acknowledging that "it may similarly be insufficient to support a capital sentence today because of the constitutionally required culpability standards regarding a capital defendant's intent to kill." 106 N.J. at 194. Support for that statement was found in the Supreme Court's decision in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
In Enmund, the defendant was the driver of a getaway car. His two colleagues killed the two intended robbery victims. Defendant was sentenced to death on his conviction for murder, based on felony-murder and accomplice-liability theories. See id. at 786, 102 S.Ct. at 3371, 73 L.Ed.2d at 1144-45. The Supreme Court held that death is a disproportionate penalty "for one who neither took life, attempted to take life, nor intended to take life." Id. at 787, 801, 102 S.Ct. at 3371, 3378, 73 L.Ed.2d at 1145, 1154. Applying federal proportionality principles found in Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978), and Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976), the Enmund Court focused its inquiry on Enmund's personal culpability. Enmund, supra, 458 U.S. at 798, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152. The Court concluded that
*73 Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the Eighth Amendment.
[Ibid.]
Our statement in Ramseur, quoted supra at 72, was rooted in the Enmund Court's federal proportionality analysis. However, shortly after our decision in Ramseur, the Supreme Court decided Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), substantially restricting the scope of Enmund
In Tison, defendants were brothers who had helped to arrange the escape from prison of their father and his cellmate, both convicted murderers. When their getaway car broke down in the desert, the group decided to flag down a passing motorist to steal another car. One of the brothers stood in front of their disabled car, while the others armed themselves and lay in wait. When a family stopped to render assistance, the group emerged and forced the family down a dirt road off the highway. The father of the family begged for their lives; the defendants' father reportedly said he was "thinking about it." Id. at 140, 107 S.Ct. at 1679, 95 L.Ed.2d at 133. The defendants' father then told his sons to return to the car for some water for the family. While the defendants fulfilled that mission, their father and his cellmate shotgunned the family to death. In due course defendants were captured and were tried, convicted, and sentenced to death under Arizona's felony-murder and accomplice liability statutes. See id. at 140, 107 S.Ct. at 1679, 95 L.Ed.2d at 134.
Defendants' principal argument before the Supreme Court was that their death sentences were disproportionate under the eighth amendment as construed in Enmund v. Florida, supra, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140. Justice O'Connor, who had dissented in Enmund, wrote for the majority, reading the Enmund decision narrowly. Enmund, she wrote, dealt with only
*74 two distinct subsets of all felony murders * * *. At one pole was * * * the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state. * * * The Court held that capital punishment was disproportional in these cases. Enmund also clearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill.
[Tison, supra, 481 U.S. at 149-150, 107 S.Ct. at 1684, 95 L.Ed.2d at 139.]
According to the Tison majority, Enmund left open "the intermediate case of the defendant whose participation is major and whose mental state is one of reckless indifference to the value of human life." Id. at 152, 107 S.Ct. at 1685, 95 L.Ed.2d at 141. The majority argued that the "substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill * * * suggests that our society does not reject the death penalty as grossly excessive under these circumstances." Id. at 154, 107 S.Ct. at 1686, 95 L.Ed.2d at 142. Addressing, finally, defendants' contention that they did not, in Enmund's terms, "kill, attempt to kill, or intend to kill," the Court stated:
A narrow focus on the question of whether * * * a given defendant "intended to kill," however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all those who act in self-defense or with other justification or excuse. * * * On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill." * * * [W]e hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.
[Id. at 157-158, 107 S.Ct. at 1687-88, 95 L.Ed.2d at 144.]
Because the Tisons' participation in the crime was "substantial" each was "actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder," id. at 157, 107 S.Ct. at 1688, 95 L.Ed.2d at 144 and because actual *75 armed escape and kidnapping involved a "reckless indifference to human life," the Court held that the Tisons' conduct did not fall within the proscription of Enmund. Id. at 157, 107 S.Ct. at 1688, 95 L.Ed.2d at 145. The Tison Court thus rejected the "intent to kill" requirement on which the majority of this Court in Ramseur had relied to limit the breadth of the death-eligible class under N.J.S.A. 2C:11-3.
It is now clear, as a matter of federal proportionality principles, that capital punishment may be imposed on one who commits a homicide without the purpose or knowledge that death will result, at least to the extent that the defendant's conduct can be characterized as "recklessly indifferent to human life." Defendant's conduct in this case appears (or so a jury could find) to fall within the Tison category of nonintentional murders that manifest a reckless indifference to human life: "the person who tortures [or beats] another not caring whether the victim lives or dies, or the robber * * * utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing * * *." Id. at 150, 107 S.Ct. at 1688, 95 L.Ed.2d at 144. Indeed, defendant also qualifies as death-eligible under the Tison Court's analysis of Enmund's "other polar case" "the felony murderer who actually killed, attempted to kill, or intended to kill," id. at 150, 107 S.Ct. at 1684, 95 L.Ed.2d at 139 (emphasis added) in which capital punishment is deemed clearly appropriate.
The federal constitutional analysis, of course, does not end the inquiry. E.g., State v. Hunt, 91 N.J. 338, 344 (1982). Indeed, given this Court's reliance on Enmund's intent-to-kill requirement to limit the class of death-eligible murderers, the Tison Court's retreat from that requirement raises anew, as a matter of state constitutional law, the issue of the adequacy of the definition of capital murder in N.J.S.A. 2C:11-3.
B
As we acknowledged in Ramseur, it is appropriate to analyze the death penalty statute not only under the federal *76 constitution but under state-constitutional standards as well. 106 N.J. at 167. The Supreme Court also has observed that in capital cases, as in other constitutional contexts, the states "are free to provide greater protections in their criminal justice system than the Federal Constitution requires." California v. Ramos, 463 U.S. 992, 1013-14, 103 S.Ct. 3446, 3460, 77 L.Ed.2d 1171, 1188-89 (1983). Resort to a state-constitutional analysis is especially appropriate in light of the fact that "capital punishment is a matter of particular state interest or local concern and does not require a uniform national policy * * *." Ramseur, supra, 106 N.J. at 167 (citing State v. Hunt, supra, 91 N.J. at 366 (Handler, J., concurring)). As we have done in other areas of constitutional law, we conclude that Article 1, paragraph 12 of our state constitution "cruel and unusual punishments shall not be inflicted" affords greater protections to capital defendants than does the eighth amendment of the federal constitution. Cf., e.g., State v. Novembrino, 105 N.J. 95, 145 (1987) (Article 1, paragraph 7 of our state constitution "affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment"), and the authorities cited therein.
The question to be addressed here is whether a sentence of death is disproportionate for a defendant who had no intent to kill his or her victim, but rather intended only to inflict serious bodily injury, even though the injury did in fact result in death. For purposes of this analysis, we use the terms "intend" or "intent" to refer collectively to both mental states provided for in the murder statute, i.e., purpose, N.J.S.A. 2C:11-3a(1), and knowledge, N.J.S.A. 2C:11-3(a)(2), as those terms are defined in N.J.S.A. 2C:2-2(b)(1) and (2), respectively.
We sometimes look to aspects of the Supreme Court's constitutional analysis, where persuasive, for guidance in establishing principles under our state constitution. E.g., Ramseur, supra, 106 N.J. at 168. We observe at the outset that the death penalty statute must "limit imposition of the penalty to what is assumed to be the small group for which it is appropriate *77 * * *." Id. at 183 (citing Furman v. Georgia, supra, 408 U.S. at 310, 92 S.Ct. at 2763, 33 L.Ed.2d at 390 (White, J., concurring)). We also record our agreement with the Tison Court's statement that "[d]eeply ingrained in our legal tradition is the idea that the more purposeful the conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." 481 U.S. at 156, 107 S.Ct. at 1687, 95 L.Ed.2d at 143. As we stated in Ramseur, supra, 106 N.J. at 207-08 "[o]ur system of criminal laws is predicated usually on the imposition of punishment based on the defendant's intent. Indeed, our Code's ranking of crimes by degree places those crimes committed with intentional conduct as the highest degree of crime, for which the defendant is most severely punished."
We observe initially that the death-penalty statute is relatively narrow in its scope. First, by its very terms, N.J.S.A. 2C:11-3(c) is limited in its application to those persons who are convicted of murder under N.J.S.A. 2C:11-3(a)(1) or (2), thereby rendering non-death-eligible those defendants who are convicted of felony murder under N.J.S.A. 2C:11-3(a)(3). Second, not all murderers convicted under N.J.S.A. 2C:11-3(a)(1) or (2) are subjected to capital punishment, inasmuch as the legislature has further restricted the scope of the statute by subjecting only two classes of murderer to the death penalty: (1) one "who committed the homicidal act by his own conduct," see infra at 92-101, and (2) one "who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value * * *." N.J.S.A. 2C:11-3(c). Under these provisions, then, New Jersey does not impose the death penalty on those who are convicted solely of felony-murder pursuant to N.J.S.A. 2C:11-3(a)(3). With the exception of those who hire another to commit the murder, the statute's provision for capital punishment does not reach those who are convicted, on a theory of vicarious liability under N.J.S.A. 2C:2-6, of purposeful or knowing murder pursuant to N.J.S.A. 2C:11-3(a)(1) and (2). Under this limited statutory scheme, the *78 Tison brothers who were convicted on felony-murder and accomplice-liability theories, see 481 U.S. at 141, 107 S.Ct. at 1679, 95 L.Ed.2d at 134 could not have been subjected to capital punishment had they been tried and convicted under New Jersey law.
In addition, the legislature clearly has rejected the Tison Court's conclusion that one who causes death while acting with a "reckless indifference to human life" can be subjected to the death penalty. See id. at 152, 107 S.Ct. at 1685, 95 L.Ed.2d at 141. In N.J.S.A. 2C:11-4(a) the legislature has defined aggravated manslaughter, a non-capital crime, as "recklessly caus[ing] death under circumstances manifesting extreme indifference to human life." Therefore, the least opprobrious mental state that would sustain imposition of the death penalty under the eighth amendment is insufficient to support even a conviction for non-capital murder under our Code. It is thus apparent that New Jersey has adopted a death-penalty statute that is narrower in its scope than is required by the eighth amendment. Our task here is to define one of the limits of that scope under the state constitution.
As we stated in Ramseur,
[t]he test to determine whether a punishment is cruel and unusual under Article I, paragraph 12, of our Constitution is generally the same as that applied under the federal Constitution. Three inquiries are required. First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective? Gregg v. Georgia, supra, 428 U.S. at 173, 96 S.Ct. at 2925, 49 L.Ed.2d at 874-75; State v. Des Marets, 92 N.J. 62, 82 (1983); State v. Hampton, 61 N.J. 250, 273-74 (1972).
[106 N.J. at 169.]
If the punishment fails any one of the three tests, it is invalid. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982, 989 (1977) (plurality opinion).
For purposes of our discussion, we will assume that the first and third criteria have been satisfied. In Ramseur, we held that capital punishment per se conforms with contemporary *79 standards of decency. See 106 N.J. at 169-74. Although it is not so readily apparent that the imposition of the death penalty on one who did not intend the death of his or her victim conforms with those same standards, we need not consider that question further. We also concluded in Ramseur that capital punishment accomplishes the legitimate penological objectives of retribution and deterrence. Id. at 175-81. But see Lockett v. Ohio, supra, 438 U.S. at 625, 98 S.Ct. at 2984, 57 L.Ed.2d at 1003 (White, J., concurring in part and dissenting in part) ("The value of capital punishment as a deterrent to those lacking a purpose to kill is extremely attenuated. Whatever questions may be raised concerning the efficacy of the death penalty as a deterrent to intentional murders and that debate rages on its function in deterring individuals from becoming involved in ventures in which death may unintentionally result is even more doubtful.").
Our inquiry focuses on the second test, namely, whether the death penalty is grossly disproportionate to the offense. In Ramseur, we concluded that capital punishment is not a disproportionate penalty to the crime of purposeful or knowing murder. 106 N.J. at 174-75. That statement was made in the context of a factual situation drastically different from that presented in this case. Prior to the actual murder, Ramseur had on more than one occasion threatened to kill his victim and her grandchildren, as well as having assaulted her. On the day of the murder, Ramseur walked up to his victim on the street and began to stab her. After stabbing her several times, Ramseur started to walk away, only to return to inflict additional wounds. "He told his victim as she lay there, * * * `If I see your kids again I'm going to kill them too.'" Id. at 162. The victim had a number of "major stab wounds in the face and chest, including two chest wounds about eight and one-half inches deep that pierced the lung." Ibid. She also suffered a number of wounds on her arms, inflicted as she tried to defend herself from her assailant. On such a record, there can be no question that Ramseur intended the death of his victim. Similarly, *80 in Biegenwald, supra, 106 N.J. 13, it is apparent that the defendant intended to kill his victim, shooting her in the head after luring her to his house. Id. at 20. We adhere to our belief that under such circumstances punishment by death is not disproportionate to the crime. We are satisfied that a different conclusion must be reached, however, when the defendant does not intend the death of his or her victim.
Were we to agree with our concurring colleague Justice O'Hern's conclusion, reached on a statutory-construction basis, that a murder conviction under N.J.S.A. 2C:11-3(a)(1) or (2) requires that the defendant have either the "purpose (conscious object or design) or knowledge (practical certainty) that death will result [,]" post at 144, there would be no need for us to pursue a constitutional analysis. See, e.g., Ocean Pines Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 10-11 (1988); In re Baby M, 109 N.J. 396, 450-51 (1988). Our discussion must therefore begin with the question of how broad is the definition of purposeful and knowing murder under N.J.S.A. 2C:11-3(a)(1) and (2).
Under N.J.S.A. 2C:1-14(h), the "element[s] of an offense" include a combination of (1) conduct, (2) attendant circumstances, and/or (3) the result of such conduct. Under the Code, a person cannot be guilty of an offense "unless he acted purposely, knowingly, recklessly or negligently as the law may require, with respect to each material element of the offense." N.J.S.A. 2C:2-2(a). The Code further provides that "[w]hen the law defining an offense prescribes the kind of culpability sufficient for the commission of an offense without distinguishing among the material elements thereof, such provision shall apply to all material elements of the offense, unless a contrary purpose plainly appears." N.J.S.A. 2C:2-2(c)(1).
In N.J.S.A. 2C:2-2(b), the Code defines the four possible grades of culpability that the actor might have in respect of each element of the offense, distinguishing among the three *81 possible elements. Our concern here is with only two degrees of culpability, namely, purpose and knowledge:
(1) Purposely. A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.
(2) Knowingly. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.
Turning to the definition of "murder" contained in N.J.S.A. 2C:11-3(a), we see that only two elements are included: conduct and the result of that conduct. Limiting our inquiry to the latter element, under N.J.S.A. 2C:11-3(a)(1) a defendant may be convicted of purposeful murder when he or she possessed either (a) the "conscious object * * * to cause" death, or (b) the "conscious object * * * to cause" serious bodily injury resulting in death. See N.J.S.A. 2C:2-2(b)(1). Similarly, a defendant may be convicted of knowing murder under N.J.S.A. 2C:11-3(a)(2) when he or she is either (a) "aware that it is practically certain that his conduct will cause" death, or (b) "aware that it is practically certain that his conduct will cause" serious bodily injury resulting in death. See N.J.S.A. 2C:2-2(b)(2). The legislature has defined "serious bodily injury" as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ * * *." N.J.S.A. 2C:11-1(b).
It is apparent that the statutory provisions for purposeful and knowing murders contemplate two distinct intended results as possible elements of the crime: the actor may intend to cause either (a) death, or (b) "serious bodily injury resulting in death." The actual result in both instances is the same: the *82 defendant's conduct has caused the victim's death. We look, then, for the distinguishing feature between the two possible results, striving, as we must, to give effect to the language of the statute as a whole. See, e.g., Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68 (1978) ("A construction of a legislative enactment that would render any part thereof superfluous is disfavored."); Monmouth Lumber Co. v. Township of Ocean, 9 N.J. 64, 77 (1952) ("It is settled that statutes should be accorded that construction which will give effect to every word expressed by the Legislature therein."). We believe that the answer lies in the actor's state of mind at the time that the crime was committed and in the harm that he or she intended to inflict. The legislative intent is clear: an actor may be convicted of murder both (1) when he or she acted with the purpose or knowledge that the victim's death would follow, and (2) when he or she acted with the purpose or knowledge to inflict only serious bodily injury, but the injury resulted in the victim's death. Stated otherwise, it is not a defense to a charge of purposeful or knowing murder that the actor intended only to inflict serious bodily injury on the victim. In accordance with the Code's general principles of causation, the actual result death need not be within the design or contemplation of the actor. It is sufficient that the actor have the purpose or knowledge to cause serious bodily injury.
Our conclusion in this regard is supported by the history of N.J.S.A. 2C:11-3(a). As it was originally enacted, that statute did not contain the "serious bodily injury resulting in death" language at issue here. Instead, the original enactment limited the relevant definition of murder to those criminal homicides that are committed purposely or knowingly. See L. 1978, c. 95, § 2C:11-3(a)(1) and (2). Prior to the Code's effective date, this section was amended by L. 1979, c. 178, § 21 to include the current "serious bodily injury" provision. Because the original enactment included within its proscription all murders in which the defendant acts with the purpose or knowledge that death result, the 1979 amendment must be read to reach a class of *83 defendants in addition to those included within the original enactment. See, e.g., Evans v. Ross, 57 N.J. Super. 223, 229 (App.Div. 1959) (courts should not construe a statute in such a manner as "would render * * * amendments futile and abortive."), certif. den., 31 N.J. 292 (1959); see also 104 N.J.L.J. 457 (1979) (an article by a former Senator and a Senate Judiciary Committee aide explaining that by the 1979 amendment, "the concept of murder under the Code is expanded to include, in addition to those persons who `knowingly' or `purposely' cause the death of another, those who `knowingly' or `purposely' cause serious bodily injury which results in death." (emphasis added)); Senate Judiciary Committee Statement to S. 3203 (1979) (same). Clearly the crimes of purposeful and knowing murder include not only those actors who intend their victim's deaths, but also those actors who intend to inflict only serious bodily injury, and death unintentionally results. Thus, to be convicted of murder under those provisions, the actor need have no mental state in respect of the actual result death but need act only with the purpose or knowledge that serious bodily injury result.
We are not persuaded by the contrary arguments so well articulated in Justice O'Hern's concurrence. For example, Justice O'Hern observes that the conclusion that the crimes of purposeful and knowing murder include those instances in which the defendant intended to inflict only serious bodily injury without intending to cause death conflicts with the general definition of homicide contained in N.J.S.A. 2C:11-2. Post at 136-137. We acknowledge that such a conflict exists but are nevertheless satisfied that resolution of that discord favors the conclusion that there is such a category of murder, for two reasons. First, it is a well-established rule that where two statutes appear to be in conflict, and one is general in nature and the other specific, the conflict is resolved in favor of the more specific statute "as a more precise manifestation of legislative intent." In re: Salaries for Probation Officers of Hudson County, 158 N.J. Super. 363, 366 (App.Div. 1978); accord *84 Kingsley v. Wes Outdoor Advertising Co., 55 N.J. 336, 339 (1970); State ex rel. State Highway Comm'r v. Dilley, 48 N.J. 383, 387 (1967); State v. Hotel Bar Foods, Inc., 18 N.J. 115, 128 (1955). Hence the general definition of murder at N.J.S.A. 2C:11-2 should yield to the more specific definition of purposeful and knowing murder at N.J.S.A. 2C:11-3(a)(1) and (2). Second, it should be noted that N.J.S.A. 2C:11-2 was originally adopted as part of the Code's enactment. See L. 1978, c. 95, § 2C:11-2. The 1979 amendments deleted only the word "negligently" from that section, see L. 1979, c. 178, § 20, leaving the language at issue here unchanged. The "serious bodily injury" language of N.J.S.A. 2C:11-3(a) was added by the 1979 amendment, see L. 1979, c. 178, § 21, and was, as Justice O'Hern puts it, enacted in an attempt to fill a "gap" in the Code. Thus, as amended, N.J.S.A. 2C:11-3(a) is not only more specific but more recent, and therefore should control over N.J.S.A. 2C:11-2. See, e.g., Maressa v. New Jersey Monthly, 89 N.J. 176, 195 (1982); State v. One 1976 Pontiac Firebird, 168 N.J. Super. 168, 176 (App.Div. 1979).
In addition, Justice O'Hern looks to notions of "some common understanding about culpability," post at 138, and of "our common culture," post at 140, in support of his conclusion that the crime of aggravated manslaughter "is more culpable than this putative non-capital murder * * *." Post at 138. Such "common understanding" in respect of relative degrees of culpability cannot provide an adequate basis for Justice O'Hern's result. The legislature has decided on a gradation of offenses, and absent a conclusion that such a gradation violated the state or federal constitutions (a conclusion expressly disavowed by Justice O'Hern, see post at 139-140), the wisdom of the policy chosen by the legislature is not for us to decide. See, e.g., Aetna Ins. Co. v. Gilchrist Bros, 85 N.J. 550, 566 (1981) ("it is not for us to rewrite the statute to comport without judgment of what we may consider to be a wiser course."); White v. Township of N. Bergen, 77 N.J. 538, 554-55 (1978) ("It goes without saying that the wisdom, good sense, policy and *85 prudence (or otherwise) of a statute are matters within the province of the Legislature and not of the Court. * * * We take this occasion again to foreswear any illusion that this Court, or any court, `sits as a superlegislature to determine the wisdom, need or propriety of statutory law.'"); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 229 (1960) ("a judge would usurp authority if his personal view of policy intruded upon his deliberations.").
As the statute is written, all defendants convicted of purposeful or knowing murder under N.J.S.A. 2C:11-3(a)(1) and (2) are exposed to the death penalty under N.J.S.A. 2C:11-3(c), provided that they either committed the homicidal act by their own conduct or hired another to commit that act. All such defendants, including those who did not intend the death of their victim, face the death penalty as a potential punishment. The failure to distinguish, for purpose of punishment, those who intend the death of their victim from those who do not does violence to the basic principle stated above that "the more purposeful the conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." Supra at 77 (quoting Tison, supra, 481 U.S. at 156, 107 S.Ct. at 1687, 95 L.Ed.2d at 143). The failure to make that distinction also creates gross disproportionality in light of the penalties imposed on conviction for crimes such as aggravated assault, N.J.S.A. 2C:12-1(b)(1), aggravated manslaughter, N.J.S.A. 2C:11-4(a), and felony-murder, N.J.S.A. 2C:11-3(a)(3). As such, the infliction of capital punishment on one who does not intend his or her victim's death is a violation of our state constitutional prohibition against cruel and unusual punishment. N.J. Const. of 1947 art. I, para. 12.
In N.J.S.A. 2C:12-1(b)(1), the Code defines aggravated assault to include the purposeful or knowing infliction of "serious bodily injury" as that term is defined in N.J.S.A. 2C:11-1(b). The only difference between that crime and a serious-bodily-injury murder such as that at issue here is the fact that in the latter case the victim has died, while in the former the victim *86 has survived. In all other material respects, e.g., the nature of the actor's conduct and his or her mental state in respect of the result of that conduct, the crimes are identical. Stated differently, the purposeful or knowing infliction of "serious bodily injury resulting in death," N.J.S.A. 2C:11-3(a), is an aggravated assault from which death results. Because the actual result represents the essential difference between the two crimes, it is appropriate to punish the actor who has caused death more severely than the actor who has inflicted only serious bodily injury. We disagree in this regard with Justice O'Hern's concurring opinion wherein he concludes that such a result would "ascrib[e] an almost outrageous intent" to the legislature. Post at 138. On the contrary, that result is not only entirely logical, it is also well-founded in the law. As the drafters of the Model Penal Code (MPC) explained in their commentary to MPC § 211.1(2), which is substantially identical to our aggravated-assault statute, N.J.S.A. 2C:12-1(b)(1),
existing law uniformly punished assaultive behavior more seriously where death of another actually occurs. This result obtains even though survival of the victim may have been due to circumstance or to medical technology rather than any restraint by the actor. Thus, two persons who create identical risks and who do so with the same culpable mental state will be subject to different penalties if one victim lives and the other dies. * * * [T]he Model Code follows existing law in escalating the penalty for assaultive behavior where death of another results.
[American Law Institute, Part II, Model Penal Code and Commentaries, § 211.1, comment 4 at 189 (1985).]
The legislature has made an aggravated assault, such as we have in this case, a second-degree crime, see N.J.S.A. 2C:12-1(b), and a defendant convicted of that crime faces a term of imprisonment ranging from five to ten years, with a presumptive term of seven years. See, respectively, N.J.S.A. 2C:43-6(a)(2) and N.J.S.A. 2C:44-1(f)(1)(c). Where an actor commits an offense that is identical in all material respects except for the victim's unintended death, it is grossly disproportionate to subject that actor to the death penalty. Because the actor's conduct, mental state, and intended result in both instances are virtually identical, the victim's fortuitous survival in one case *87 and unfortunate demise in the other cannot provide an adequate basis for subjecting one actor to a term of imprisonment and executing the other.
A comparison with the crime of aggravated manslaughter is also instructive. Under N.J.S.A. 2C:11-4(a), "[c]riminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life." As pointed out supra at 78 aggravated manslaughter is not a capital offense but rather a crime of the first degree, N.J.S.A. 2C:11-4(c). On conviction a defendant faces a term of imprisonment ranging from ten to thirty years, ibid. (as amended by L. 1986, c. 172, § 1), with a presumptive term of twenty years. N.J.S.A. 2C:44-1(f)(1)(a) (as amended by L. 1986, c. 172, § 4). Without attempting to state definitively all of the differences between the crimes of aggravated manslaughter and the purposeful or knowing infliction of serious bodily injury resulting in death, we note that the most significant difference lies in the nature of the actor's conduct, which is either, respectively, reckless, purposeful, or knowing. It is beyond dispute that that distinction is important in terms of the severity of the sanction to be imposed. See State v. Ramseur, supra, 106 N.J. at 208, 524 A.2d 188 ("our Code's ranking of crimes by degree places those crimes committed with intentional conduct as the highest degree of crime, for which the defendant is most severely punished."). Regardless of the nature of the conduct, however, in none of the crimes at issue has the actor intentionally caused the victim's death. In all three instances, death is the unfortunate but unintended result. Absent an intent to kill, the distinction between an actor's reckless, knowing, or purposeful conduct is not significant enough to warrant imposition of the death penalty where the conduct is purposeful or knowing, compared to a term of imprisonment where it is reckless. Furthermore, inasmuch as the intentional infliction of serious bodily injury can occur without a high risk of death, even with the actor justifiably believing that death will not occur, that actor's state of mind *88 might, under some circumstances, be less culpable than that of the actor whose mind exhibits "an extreme indifference to human life."
In N.J.S.A. 2C:11-3(a)(3), the Code defines the crime of felony murder as follows:
It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping or criminal escape, and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants * * *.
Limiting our discussion to a felony murder in which the defendant has caused another's death by his own actions, see, e.g., State v. Smith, 210 N.J. Super. 43 (App.Div.), certif. den., 105 N.J. 582 (1986), it is significant that a conviction for that crime does not require an intent to kill, but only an intent to commit the underlying crime. E.g., State v. Madden, 61 N.J. 377, 384 (1972); State v. Stenson, 174 N.J. Super. 402, 407 (Law Div. 1980), aff'd, 188 N.J. Super. 361, 457 A.2d 841 (App.Div. 1982), certif. den., 93 N.J. 268 (1983). "[A] wholly unintended killing is murder if it results from the commission of the underlying felony. * * * A felony murder * * * is by definition not a result which is purposely planned." State v. Darby, 200 N.J. Super. 327, 331 (App.Div. 1984), certif. den., 101 N.J. 226 (1985); (citing Darby). In that respect felony-murder is strikingly similar to the crime at issue here, the purposeful or knowing infliction of serious bodily injury resulting in death. Such similarities notwithstanding, a felony-murderer is not exposed to the death penalty, but faces instead a term of imprisonment ranging from thirty years without parole to a life sentence with a thirty-year parole disqualifier. N.J.S.A. 2C:11-3(b)
Like a defendant convicted of aggravated manslaughter or felony-murder, a defendant convicted of purposely or knowingly inflicting serious bodily injury resulting in death has unintentionally taken the life of another. Reprehensible as that conduct surely is, we can discern no rational justification for the *89 conclusion that on conviction for the former crimes a defendant should face a term of imprisonment, while on conviction for the latter he or she should face execution. Our society's ultimate sanction the death penalty is properly imposed on those who act with the most culpable state of mind, namely, the purpose or knowledge that their victims will die. For those who act with a less culpable state of mind, i.e., an intent to inflict only serious bodily injury with no intention that death be the result, a lesser sanction is mandated by our state constitution. For the latter class of murderers, as well as for all other murderers who are not subjected to the death penalty be they felony murderers, or those purposeful or knowing murderers not charged with capital murder because of a perceived absence of statutory aggravating factors, or because the murder was not committed by their own conduct, or those capital-murder defendants for whom a penalty-phase jury or judge has concluded that execution is not warranted the Code should reserve its most severe sanction short of death: a custodial term ranging from thirty years without parole to life imprisonment with a thirty-year parole disqualifier. N.J.S.A. 2C:11-3(b).
We therefore conclude that imposition of the death penalty on one who is convicted under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them, of the purposeful or knowing infliction of serious bodily injury resulting in death is not permissible under Article I, paragraph 12 of our state constitution.
The foregoing result comports with the Legislature's intent in restoring the death penalty. At the time the Code was enacted in 1978, capital punishment was not included in its sentencing provisions. It was only by the passage of L. 1982, c. 111, that the death penalty was provided for. In essence, the Act was grafted onto a murder statute that did not contemplate capital punishment at the time it was drafted.
According to Senator John Russo, the legislation's chief sponsor and Chairman of the Senate Judiciary Committee, the statute was intended to be "not as broad" as capital legislation *90 in other states, in that "[i]t does not cover as many people as some of the other [states'] legislation does." Capital Punishment Act: Hearings on S. 112 Before the Senate Judiciary Committee (1982) at 1 (hereinafter Committee Hearing). Senator Russo gave some indication of the intended scope of the enactment. For example, he explained that the statute contemplates a two-tier procedure, under which a defendant faces death penalty proceedings only after having been "found guilty unanimously and beyond a reasonable doubt of first degree murder, willful, premeditated murder." Ibid. (emphasis added). Further, "[t]he bill deals only with a conviction of first degree murder * * *." Id. at 2; see also Senate Judiciary Committee Statement to S-112 (1982) ("only a person who actually commits an intentional murder * * * would stand in jeopardy of the death penalty.").
Although understandably mistaken in terminology, in that at the time of these hearings the adoption of the Code recently had done away with first- and second-degree murder, Senator Russo's comments, and the history they invoke, are both instructive. As noted supra at 71, under the prior law only those defendants convicted of first-degree murder could be subjected to the death penalty. Distinguishing features of first-degree murder included, inter alia, the fact that the crime was accomplished by poison or by lying in wait, or proof of premeditation, deliberation, and willful execution of the plan. Ramseur, supra, 106 N.J. at 388 (Handler, J., dissenting) (citing State v. Anderson, supra, 35 N.J. at 496-97). It is thus apparent that the actor's intention to cause the victim's death was a significant factor in determining whether a murderer could be executed. When the defendant possessed only the intent to do serious bodily harm, however, he or she could be convicted only of second-degree murder and was subject only to a term of imprisonment. We are persuaded that that same distinguishing feature the defendant's state of mind is important in analyzing the current statute.
*91 C
Having concluded that the Act is unconstitutional to the extent that it exposes to the death penalty some defendants who kill without intending to do so, we turn to the question of what result should follow from that conclusion. As we have stated, "[i]t is our duty to save a statute if it is reasonably susceptible to a constitutional interpretation." Right to Choose v. Byrne, 91 N.J. 287, 311 (1982). Our inquiry focuses on whether the legislature would prefer that the statute survive with an appropriate constitutional construction, or whether it would prefer that the statute "succumb to constitutional infirmities." Ibid.; accord New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 75 (1980); Schmoll v. Creecy, 54 N.J. 194, 202 (1969). We have no doubt that the legislature would prefer that the Act be subjected to a narrowing construction that would free it from constitutional defect, a construction that comports with the legislature's stated intent in originally adopting the Act. See supra at 85-87. As such it is incumbent on us to "engage in `judicial surgery' to excise [the] constitutional defect * * *." Right to Choose, supra, 91 N.J. at 311, 450 A.2d 925; accord State v. Ramseur, supra, 106 N.J. at 200 (collecting cases); New Jersey Chamber of Commerce, supra, 82 N.J. at 75 (collecting cases). Accordingly, we hold that when a defendant is convicted under N.J.S.A. 2C:11-3(a)(1) or (2) of purposely or knowingly causing serious bodily injury resulting in death, imposition of the death penalty is irrational and grossly disproportionate to the crime charged. Any person so convicted shall not be subjected to the penalty-phase proceedings of N.J.S.A. 2C:11-3(c), but rather shall be sentenced to a term of imprisonment in accordance with N.J.S.A. 2C:11-3(b).
D
Applying the foregoing principles to the matter now before us, we are unable to discern from the record whether Gerald was convicted of purposely or knowingly causing death, or *92 purposely or knowingly causing serious bodily injury resulting in death. Count Thirteen of the indictment charges simply that Gerald "did purposely or knowingly cause the death of, or serious bodily injury resulting in the death of Paul Matusz * * *," and the jury, following a charge that did not ask it to draw the distinctions or apply the principles that are enunciated in this opinion, convicted Gerald on the thirteenth count without specifying for which of the four distinguishable offenses he was convicted. From our reading of the record we are satisfied the jury rationally could have convicted Gerald not only of purposely or knowingly causing death, but also and equally rationally of purposely or knowingly causing serious bodily injury resulting in death. If the latter, defendant would not be death-eligible. Without a determination of the basis for the jury's verdict, we cannot sustain the imposition of the death penalty, nor, for the reasons expressed earlier in this opinion, can we permit a second jury to pick up the thread at some point in the first jury's deliberations. Hence the guilt phase of the capital murder charge must be retried from the beginning.
V
A
N.J.S.A. 2C:11-3(c) provides, in pertinent part, that "[a]ny person convicted under [N.J.S.A. 2C:11-3(a)(1) or (2)] who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value shall be sentenced" in accordance with the Act's capital punishment provisions. (Emphasis added). Referring to the statutory language highlighted above, defendant argues that execution is proper only for an actor who "directly causes death by his own conduct, without reference to the acts of co-defendants." He contends that the single relevant concern is whether the defendant's conduct, standing alone, caused the victim's death. Accordingly, defendant posits that because the evidence revealed *93 that at least Walker, and possibly Bland, also struck the victim, the inability of the medical examiner to isolate the fatal blow dictates that defendant is outside the death-eligible class. Based on our reading of the legislative history, we reject that argument.
For purposes of determining an actor's guilt, both the Code and the statutory and common law that preceded it abolished the distinction between principal and accomplice. See N.J.S.A. 2C:2-6 ("Liability for conduct of another"); State v. Cooper, 10 N.J. 532, 568 (1952) ("The distinction between principal and accomplice or aider and abettor has been abolished in our jurisdiction"). The legislative history of the Act makes it clear, however, that in enacting N.J.S.A. 2C:11-3(c), the Legislature intended to distinguish, for purposes of punishment only, a murderer who actually killed the "triggerman" from one whose conviction rests on a theory of vicarious liability under N.J.S.A. 2C:2-6. An accomplice who neither takes part in the infliction of the fatal wounds nor hires another to commit the murder may properly be convicted of murder but may not be sentenced to death for his or her conduct. For this limited purpose the legislature has chosen to resurrect the distinction between a principal and an accomplice.
The phrase "committed the homicidal act by his own conduct" was not part of the bill's original language but was included in the statute by a Senate amendment adopted on March 29, 1982. As originally proposed, S-112 provided in pertinent part as follows: "Any person convicted under [N.J.S.A. 2C:11-3(a)(1) or (2)] as a perpetrator or an accomplice pursuant to [N.J.S.A.] 2C:1-6c.(1)(a) shall be sentenced to death or life imprisonment * * *." In his introductory remarks at the Senate Judiciary Committee's hearing on the bill, Senator Russo stated his understanding, as the bill's chief sponsor, that there were only two classes of murderers who were exposed to the death penalty:
[(1)] the actual perpetrator of the murder, the one who wields the gun or the knife * * * that results in the death * * * [and (2)] the one who hires one to *94 commit murder, and the bill in that regard refers to a section of our law that deals specifically with that, [N.J.S.A.] 2C:2-6c.(1)(a). * * * That is one instance where one other than the actual perpetrator would be subjected to the death penalty, the contract for hire, one who hires another to commit murder.
[Committee Hearing, supra, at 2.]
Despite Senator Russo's stated intention to limit the application of the bill to those two relatively narrow groups, the bill's reference to N.J.S.A. 2C:2-6(c)(1)(a) would have subjected a much larger group to the death penalty. Under that section of the statute, one is considered an accomplice of the actual perpetrator, and therefore may be convicted of murder, if one "[s]olicits such other person to commit" the murder. Thus, as originally drafted, the bill included within its scope those defendants who had merely solicited another to commit murder, without payment or promise of payment, despite the stated intention to limit its applicability to the actual perpetrator and to those who hire another to commit murder.
During his appearance before the Committee, Edwin Stier, then the Director of the Division of Criminal Justice, perceived the actual breadth of the bill and suggested that the Committee adopt a proposed mitigating factor (g): "The defendant was an accomplice to a murder committed by another person and his participation in the murder was relatively insubstantial." Committee Hearing, supra, at 16. Senator Russo immediately expressed his belief that such a mitigating factor was unnecessary, in that an accomplice whose participation in the murder was "relatively insubstantial" was not death-eligible under the bill: "Wait a minute, now. He didn't pull the trigger. If he didn't pull the trigger, aren't you dealing with maybe a felony murder situation here which we don't have in this bill?" Ibid. Mr. Stier noted in response that the bill's reference to N.J.S.A. 2C:2-6(c)(1)(a) included within its scope certain defendants convicted on a theory of accomplice liability, a class of capital murderers to whom the proposed mitigating factor would apply. Id. at 16-17. Stating that such a result was not intended, Senator Russo indicated that the bill's language would have to *95 be amended in order to restrict death-eligibility to the two limited groups originally intended.
Further discussion at the hearing focused on the bill's inclusion of those defendants convicted under N.J.S.A. 2C:11-3(a)(1) or (2) "as a perpetrator." For example, several members of the Committee expressed their concern that if a team were hired to commit a murder, only one member of the team the actual perpetrator could be subjected to the death penalty. Other members of the team, e.g., the driver and the stake-out, who received payment for their role in the murder and whose participation made the crime possible, would be subjected only to a term of imprisonment. Id. at 17-18. Noting the "unevenness * * * of the death penalty applying to one person and not applying to other persons who are equally involved" in such a situation, some Committee members argued that all team members are equally guilty, and that all therefore should receive equal punishment for their participation. Ibid. Senator Russo, whose position was subsequently deferred to by the Committee, indicated in response that only the actual triggerman should be subjected to the death penalty in such a murder. The triggerman's participation in the crime is distinct from that of the other participants, inasmuch as "[w]e may plan a murder, but until the trigger is pulled, the murder has not been consumated [sic]." Id. at 18. Because the triggerman "is the fellow that ended somebody's life," he alone should face a possible death sentence. Ibid.
It is apparent that the language ultimately included "committed the homicidal act by his own conduct" reflects the same concerns as did the original bill's language: "Any person convicted * * * as a perpetrator * * *." Indeed, the very language "by his own conduct" is identical to that contained in the vicarious liability statute, N.J.S.A. 2C:2-6(a). In that section, the legislature has provided that "[a] person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." (Emphasis added). See also Senate Judiciary Committee *96 Statement to S. 112 (1982) ("only a person who actually commits an intentional murder, the perpetrator, and a person convicted as an accomplice who hired the perpetrator, the procurer, would stand in jeopardy of the death penalty. Persons convicted under the felony-murder doctrine and persons convicted as accomplices other than as procurers would not be eligible for capital punishment.").
Thus, in adopting the "own conduct" requirement, the legislature reinstated for purposes of capital punishment the distinction between principal and accomplice. While the imputation of liability for the conduct of another suffices for a murder conviction, the defendant's "own conduct" in the commission of the murder is a prerequisite to imposition of the death penalty.
Our inquiry is not ended, however, for as indicated above, defendant contends that he may be subjected to the death penalty only if his conduct, standing alone, resulted in Paul Matusz's death. Defendant argues that where, as here, more than one person inflicted blows that were potentially fatal, imposition of the death penalty is not proper under the statute.
We agree with the State that defendant's contention runs counter to established principles of causation, and we therefore reject the argument. There is no requirement under either the statutory or common law that the actor's conduct be the exclusive cause of the result. To the contrary our courts consistently have rejected the argument that a defendant may be absolved from liability for murder simply because his or her actions were not the sole cause of death. See, e.g., State v. Loray, 41 N.J. 131, 140 (1963) (sufficient that injuries inflicted by defendant were participatory and contributory causes of victim's death); State v. Lassiter, 197 N.J. Super. 2 (App.Div. 1984) (affirming defendant's murder conviction where victim, after being severely beaten by defendant, jumped out of an eleventh-floor window to escape further beatings; defendant's *97 active contribution to the victim's death sustained conviction for murder).
We are not persuaded that the Legislature intended to change these long-standing principles of causation. The "own conduct" standard seeks to distinguish, for purposes of punishment, guilt premised on defendant's own actions from guilt based on the actions of another for whom the defendant is legally responsible. Accordingly, the focus on the actions of the defendant, as required by the "own conduct" language, does not necessitate a specific finding that the defendant's actions standing alone caused the victim's death. The relevant inquiry is whether or not the defendant actively and directly participated in the homicidal act, i.e., in the infliction of the injuries from which the victim died. The critical elements are that defendant in fact acted, and the immediacy of his conduct to the victim's demise.
B
The trial court gave the following instruction to the jury in respect of the requirement that the defendant's own conduct cause the victim's death:
When the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation as the case may be of the person acting, or, if not, the actual result must involve the same kind of injury or harm as that designed or contemplated and not be too remote, too accidental in its occurrence or too dependent on another person's volitional act to have a just bearing on the actor's liability or gravity of the offense. That is to say under the circumstances that I have just stated there can be more than one cause of a particular result. The essential determination for you to make in regard to the charge of murder in this case is whether the defendant committed the killing purposely or knowingly.
[Emphasis added.]
Defense counsel made no objection at the time the instruction was given. Ordinarily, then, our inquiry would have to focus on whether the charge constituted plain error under Rule 2:10-2. See, e.g., State v. Hock, 54 N.J. 526, 538 (1969) (defining plain error in jury charge as a "legal impropriety * * * *98 prejudicially affecting the rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."), cert. den., 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970). Although we need not resolve the question, we nonetheless discuss it in order to provide some guidance on remand.
The portion of the charge quoted above tracked verbatim the language of N.J.S.A. 2C:2-3(b). That section of the Code is concerned with principles of causation in those instances in which the defendant has acted purposely or knowingly but the actual result varies from the intended result. We pause only to express our concern that such a charge did little to increase the jury's understanding on this crucial and complex issue. See State v. Bey II, supra, 112 N.J. 123 at 171 ("Jurors are untrained in statutory interpretation, and instructions that merely repeat verbatim the language of the Act generally are inadequate.").
However, our principal concern is with the extent to which the charge discussed or did not discuss the distinction to be drawn between a principal and an accomplice. As noted, the Act has reinstated this distinction, but only for purposes of punishment. In the portion quoted, as well as in other portions of the charge, the trial court essentially defined the "by his own conduct" requirement to mean that the killing was committed by the defendant himself. After charging the jury in respect of the elements of the crimes alleged in the indictment, the court instructed the jury about the legal theories of vicarious liability set forth in N.J.S.A. 2C:2-6. The court specifically charged the jury that it could convict defendant on an accomplice theory on all but one count, namely, the thirteenth, alleging the purposeful or knowing murder of Paul Matusz. As the court stated, "that count requires just what it says, his own conduct," thereby precluding the jury from convicting defendant of purposeful or knowing murder on an accomplice theory. The charge was erroneous in that regard, in that one may, as an *99 accomplice, be guilty of purposeful or knowing murder but not be death-eligible inasmuch as the defendant neither committed the homicidal act by his or her own conduct nor hired another to commit that act.
Consistent with the statute's language, this Court has provided in Rule 3:7-3(b) that an indictment for murder must specify, inter alia, "whether the defendant is alleged to have committed the [homicidal] act by his own conduct * * *." As Judge Newman has observed, that allegation "is not an element of the offense of murder. It is merely a triggering device for the death penalty phase of the trial." State v. Moore, 207 N.J. Super. 561, 576 (Law Div. 1985). The elements of the crimes of purposeful and knowing murder, as set forth in N.J.S.A. 2C:11-3(a), do not require
that the defendant must have committed the homicidal act by his own conduct before he can be convicted of murder. The factual determination that the defendant committed the murder by his own conduct only becomes important after the defendant is found guilty of murder.
[Ibid.]
There is no question that a defendant may be convicted of purposeful or knowing murder on a theory of vicarious liability under N.J.S.A. 2C:2-6. See, e.g., State v. Sanchez, 224 N.J. Super. 231, 244 (App.Div. 1988); State v. Micheliche, 220 N.J. Super. 532, 544 (App.Div. 1987). However, in the event of such a conviction, the defendant may not be sentenced to death, because he neither committed the homicidal act by his own conduct nor hired another to do so. In Moore, for example, the victim died as a result of several beatings inflicted by three defendants. The jury convicted one defendant, Adams, of purposeful and knowing murder under N.J.S.A. 2C:11-3(a)(1) and (2), but was unable to reach a verdict on whether or not Adams had committed that murder by his own conduct. Id. at 567. The trial court properly concluded that under those circumstances, "[t]he fact that the jury was unable to reach a conclusion on whether or not Adams committed the murder by his own conduct is not fatal to the murder conviction. It *100 merely precludes the State from seeking the death penalty under N.J.S.A. 2C:11-3(c)." Id. at 577.
We agree with Judge Newman's analysis in Moore. The requirement that the homicidal act be committed by the defendant's own conduct is simply irrelevant to the question of whether defendant is guilty of purposeful or knowing murder. During guilt-phase proceedings, the jury first must determine whether defendant should be convicted of murder, considering, where appropriate, principles of vicarious liability under N.J.S.A. 2C:2-6. Only after it has unanimously found defendant guilty of purposeful and knowing murder should the jury turn to the question of whether defendant committed the homicidal act by his or her own conduct. With the sole exception of a murder for hire, see N.J.S.A. 2C:11-3(c), a defendant whose conviction is based on a theory of vicarious liability cannot be subjected to death-penalty proceedings. Only those murderers whose conviction rests on their status as principals those who have committed the homicidal act by their own conduct or on the fact that they have hired another to commit the crime may face the death penalty.
It is clear that a charge such as that given in this case has the capacity to visit substantial prejudice on a defendant. For example, even on this record, it is possible however remotely that the jury could have disbelieved the testimony of Eddie Walker and John Bland, believing instead the substance of the confession initially given by defendant to Chief Peterson and Mayor Dix. In that confession defendant admitted to hitting Paul Matusz and to stepping on him while running about the house. However, according to defendant, Walker "went off" on the victim, hitting him with a trophy, punching him, and throwing a television set on his face. Accepting as true that factual outline, it is conceivable that the jury could have concluded that Walker's conduct independently "caused" the victim's death, thereby rendering Gerald an accomplice who had not committed the homicidal act by his own conduct. Nevertheless, Gerald clearly could have been convicted of a purposeful *101 and knowing murder as an accomplice pursuant to N.J.S.A. 2C:2-6. In effect, the trial court's instructions took away from the jury the possibility of returning that verdict a significant deprivation. Had he been convicted under an accomplice theory, defendant would not have been exposed to a penalty-phase proceeding but would have been sentenced instead to a term of imprisonment. On remand the jury will have to determine whether defendant caused Paul Matusz's death "by his own conduct." If so, he is death-eligible if, as we have explained above, death was the intended result. If not, he is not death-eligible.
VI
Because the question may arise on the remand, we now address defendant's contention that in its penalty phase deliberations, the jury should have been allowed to consider the sentences received by his codefendants as a mitigating factor under N.J.S.A. 2C:11-3(c)(5)(h). We reject the argument.
We note at the outset that Gerald's co-defendants apparently were not sentenced until June 8, 1984, which was several weeks after the conclusion of this trial. At best, defendant's argument must be limited to the contention that the jury should have been allowed to consider sentences that had been recommended by the State, namely, life imprisonment with a thirty-year parole disqualifier for John Bland on his plea to a felony-murder charge, and a thirty-five-year term of imprisonment with a sixteen-year parole disqualifier for Eddie Walker on his plea to one count of burglary and three counts of second-degree robbery. The flaw in defendant's argument becomes apparent when one considers that the sentencing court is not bound by the recommended sentence. E.g., State v. Howard, 110 N.J. 113, 123 (1988), and authorities cited therein; see also R. 3:9-3(e) ("If at the time of sentencing the judge determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel, the *102 defendant shall be permitted to withdraw his plea."). In light of the tenuous nature of such recommended sentences, we cannot agree that the jury should be allowed to consider them in its penalty-phase deliberations.
Moreover, even had Walker and Bland actually been sentenced prior to Gerald's trial, defendant's argument would still be without merit. The section at issue, N.J.S.A. 2C:11-3(c)(5)(h), provides that in addition to the mitigating factors enumerated in sections (5)(a) through (5)(g), the sentencer may find "[a]ny other factor which is relevant to the defendant's character or record or to the circumstances of the offense." The Supreme Court has mandated
that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
[Woodson v. North Carolina, supra, 428 U.S. at 304-05, 96 S.Ct. at 2991, 49 L.Ed.2d at 961 (plurality opinion) (citation and footnote omitted).]
In accordance with that mandate, we previously have adopted an expansive scope of the factors that may be submitted and considered under section (5)(h). In State v. Davis, 96 N.J. 611 (1984), we stated that in a capital case, "the sentencing process should embrace an evidential inquiry `broad in scope, largely unlimited either as to the kind of information that may be considered, or the source from which it may come.'" Id. at 620 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592, 596 (1972)). In Davis, we allowed the introduction under Section (5)(h) of expert testimony regarding the defendant's potential for rehabilitation, to be demonstrated through the use of statistical evidence of the rehabilitative potential of similarly situated defendants.
*103 That section (5)(h) is broad in its scope does not mean, however, that that scope is unlimited. In Lockett v. Ohio, supra, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, the Court stated that the eighth amendment requires that the sentencer in a capital case be allowed to consider as a mitigating factor evidence of "any aspect of a defendant's character or record and * * * any of the circumstances of the offense * * *." Id. at 604, 98 S.Ct. at 2965, 57 L.Ed.2d at 990. The proffered evidence, then, must be relevant to one or more of those three categories, i.e., defendant's character or record, or the circumstances of the offense. See id. at 608, 98 S.Ct. at 2966, 57 L.Ed.2d at 992; see also Franklin v. Lynaugh, ___ U.S. ___, ___, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155, 166 (1988) (plurality opinion) (rejecting defendant's argument that capital juries should be allowed to consider, in sentencing phase, "their `residual doubts' over a defendant's guilt. Such lingering doubts are not over any aspect of [defendant's] `character,' `record,' or a `circumstance of the offense.'").
Consistent with this constitutional requirement, the legislature has limited the scope of section (5)(h) to any factor that is "relevant to the defendant's character or record or to the circumstances of the offense." In Davis, we determined that the proffered evidence of defendant's potential for rehabilitation was relevant to his "character," stating,
"character," within the context of N.J.S.A. 2C:11-3c(5)(h), can and should embrace those individual qualities that distinguish a particular person. An individual's capacity to reform his potential for rehabilitation pertains to his character. Consequently, evidence that is reasonably related to this potential is relevant as a mitigating factor under the statute.
[96 N.J. at 618.]
The evidence proffered by defendant in this case the sentences received by his co-defendants plainly is not relevant to either Gerald's character or his record. If it is to be admitted, it must be relevant to "the circumstances of the offense." We conclude that the evidence does not satisfy that requirement.
*104 We are satisfied that the phrase "circumstances of the offense" is limited in its application to the circumstances surrounding the commission of the crime itself. The sentencing jury or court may consider such factors as the relative magnitude of the defendant's participation in the crime. For example, was he or she the "ringleader," or was his or her participation relatively minimal compared to that of the co-defendants?
In contrast, the sentences imposed on the co-defendants result from the sentencing court's reasoned consideration of factors that are peculiar to those co-defendants. Under N.J.S.A. 2C:44-1, the court may consider nine aggravating circumstances and thirteen mitigating circumstances in determining the appropriate sentence. The balancing of those aggravating and mitigating circumstances requires a consideration of factors that may be completely extraneous to the circumstances of the offense itself. See, e.g., N.J.S.A. 2C:44-1(a)(6) (considering as an aggravating circumstance "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), and N.J.S.A. 2C:44-1(b)(7) (considering as a mitigating circumstance the fact that "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the recent offense."). It is thus apparent that the co-defendants' sentences are determined after a consideration of factors that are unique to them and that do not necessarily implicate the circumstances of the offense itself. Although the co-defendants' comparative participation in the crime might be relevant to the circumstances of the offense and therefore properly considered as a mitigating factor in sentencing the defendant the sentences that the co-defendants receive are not. Allowing the jury to consider those sentences would necessarily mean that its determination would be influenced, albeit indirectly, by considerations beyond "the character and record of the individual offender and the circumstances of the particular offense * * *." Woodson v. North Carolina, *105 supra, 428 U.S. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961. The fact that Gerald's co-defendants received lesser sentences could no more be considered as a mitigating factor than could the fact that both received the death penalty be considered as an aggravating factor. We hold that the sentencing court or jury may not consider the co-defendants' sentences as a mitigating factor under N.J.S.A. 2C:11-3(c)(5)(h). Moreover, we are convinced that the legislature would not want to inhibit a prosecutor's ability to persuade a defendant to become a State's witness by offering a lenient plea bargain. Allowing a jury to consider a co-defendant's sentence would surely be an inhibiting factor.
Other jurisdictions apparently have divided on this question. Compare, e.g., Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir.1986) (under Louisiana statute, co-defendant's sentence not a mitigating factor, inasmuch as it is not relevant to the defendant's own "character, prior record, or the circumstances of his offense"), cert. den., 481 U.S. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987) and State v. Williams, 305 N.C. 656, 687, 292 S.E.2d 243, 261-62 (1982) ("The fact that the defendant's accomplices received a lesser sentence is not an extenuating circumstance. * * * The accomplices' punishment is not an aspect of defendant's character or record nor a mitigating circumstances of the particular offense.") with Riley v. State, 496 A.2d 997, 1026 (Del. 1985) (in context of determining intercase proportionality, noting without explanation that evidence that co-defendant had received a lesser penalty had been admitted as a mitigating circumstance), cert. den., 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). We record our agreement with the conclusions reached in the first two cases.
VII
Defendant argues that his arrest was invalid, wherefore his subsequent confession and the physical evidence seized, namely, his sneakers, should have been suppressed. He also urges *106 that his confession should have been suppressed because it was obtained in violation of his right to counsel and his right to remain silent. We reject each of those contentions.
A
Defendant's first argument is that his arrest was invalid and that the fourth amendment requires the suppression of all evidence obtained as a result of that arrest as fruits of an illegal arrest. See generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (direct and indirect fruits of unlawful invasion excluded from evidence). Specifically, defendant argues that his illegal arrest requires the suppression of the following evidence: his sneakers, his confession, and, because his statement to the police led to the arrest of his co-defendants, the trial testimony of Bland and Walker. Defendant further submits that without the stated evidence a reasonable jury could not have found him guilty beyond a reasonable doubt and that therefore his convictions for all of the various offenses, including murder, must be reversed.
Resolution of the question whether defendant's arrest on the two outstanding municipal court warrants was valid is necessarily governed by our decision in State v. Bruzzese, supra, 94 N.J. 210, whose facts on the "arrest" issue are remarkably similar to those in this case. Bruzzese was a suspect in the burglary of his former employer's business. On a panel of a rear door that had been kicked in during the burglary police found a distinctive imprint from the sole of a boot. Having run a routine check to determine whether Bruzzese had a criminal record, the police learned that an outstanding arrest warrant had been issued against defendant for contempt of court, on account of his failure to appear in municipal court on an unrelated matter. Four officers went to Bruzzese's residence to arrest him on the outstanding warrant. The officers concededly had a second purpose, namely, to question Bruzzese about the burglary. When he was arrested on the warrant, *107 defendant asked to go to his bedroom to put on shoes and a jacket. Two officers accompanied him to his bedroom where they found and seized a pair of boots with soles that corresponded to the impression left on the door panel.
The Court phrased the issue before it as follows:
whether incriminating boots seized by police from defendant's bedroom in the course of arresting him on an unrelated contempt of court charge were admissible to prove defendant's involvement in a burglary. Subsumed within this issue is the fundamental question of whether the court should consider the subjective motives and intent of a law enforcement officer in determining the reasonableness of a search and seizure under the Fourth Amendment and under Article I, paragraph 7 of the New Jersey Constitution.
[Id. at 213.]
The Court held that "the proper inquiry * * * is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent." Id. at 219 (emphasis added). The holding was based on both federal and State constitutional grounds. See id. at 216-17.
Defendant in this case argues that his arrest on the municipal court warrants was merely a pretext for taking him to police headquarters to interrogate him about the Matusz murder. Relying on the opinion of a single dissenting Justice in Bruzzese, defendant contends that Bruzzese was wrongly decided under the fourth amendment and that his arrest was therefore invalid under the federal constitution. Defendant's suggested analysis is unpersuasive: the majority opinion in Bruzzese remains the law, and we decline any invitation to reconsider our opinion in that case.
Under Bruzzese, then, the police officers' subjective intent in arresting Gerald to question him in connection with the homicide is not relevant to resolution of this question. See 94 N.J. at 219. Rather, our inquiry focuses on whether the officers' conduct was "objectively reasonable." Ibid. The standard is whether "the facts available to the officer at the moment of the seizure or search [would] `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. *108 Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968), quoted in Bruzzese, supra, 94 N.J. at 220.
We agree with the trial court that under that test the conduct of Detective Frank and Investigator Bolis in arresting defendant was objectively reasonable. The officers had information that implicated defendant in the crime. Investigation by Detective Frank and Investigator MacIntyre confirmed some of the information provided. A routine check of Gerald's criminal record revealed that two valid municipal court warrants for his arrest were outstanding. As we observed in Bruzzese, N.J.S.A. 2A:10-8 empowers police officers to serve contempt warrants and "to produce the person subject to punishment for contempt" before the court issuing the warrant. 94 N.J. at 228. The police may execute a lawful arrest warrant by arresting the defendant at his or her home. Id. at 228-29 (citing Rule 3:3-3(b)).
In this case, unlike the situation in Bruzzese, the officers made no search of defendant's home when they executed the arrest warrants. There was conflicting testimony at the suppression hearing regarding whether the arresting officers showed Gerald the arrest warrants, whether bail was discussed, and whether defendant was allowed to make a telephone call after his arrest. The court entertaining the suppression motion found the testimony of the officers involved to be more credible than that of the defendant, and our own review of the record provides us with no basis to overturn that determination. See, e.g., State v. Johnson, 42 N.J. 146, 162 (1964). We therefore conclude that defendant's arrest was valid.
B
Although the question is not directly raised by defendant, we conclude that the seizure of defendant's sneakers was valid even though no search warrant had been issued. Ordinarily in the absence of a search warrant, the State must establish one of the recognized exceptions to warrantless *109 search and seizure. See, e.g., State v. Alston, 88 N.J. 211, 230 (1981), and the authorities therein cited. In this case, however, there was no need for the police to have obtained a search warrant prior to the seizure of the sneakers, inasmuch as no "search" was involved. In State v. Speciale, 96 N.J. Super. 1 (App. Div.), certif. den., 50 N.J. 291 (1967), the issue on appeal was whether the seizure of defendants' shoes constituted an unlawful search. Id. at 3-4. The court held that it did not, concluding that "the taking of defendants' shoes * * * entailed no search but merely the temporary appropriation of articles necessary for further investigation of defendants' suspected implication in the crime." Id. at 7; see also Bruzzese, supra, 94 N.J. at 239 n. 10 ("had defendant chosen to wear the boots down to headquarters, the police would have had the authority to appropriate them from him temporarily for further investigation of his suspected involvement in the burglary" (citing State v. Speciale, supra)); State v. Moller, 196 N.J. Super. 511, 515 (App.Div. 1984) (observation of evidence in plain view does not constitute a search). The seizure of the sneakers was valid.
C
We now turn to the arguments raised by defendant in respect of alleged violations of his right to remain silent and his right to counsel. Defendant presents four distinct claims: (1) that his invocation of the right to silence was not "scrupulously honored"; (2) that his assertions of the right to counsel were not respected; (3) that his waivers of his Miranda rights were not knowing and intelligent; and (4) that his waivers of his Miranda rights were not voluntary. In accordance with the approach adopted by this Court in State v. Hartley, 103 N.J. 252, 260-61 (1986), we consider first the question of whether the defendant asserted his rights, and, if so, whether those assertions were scrupulously honored.
1.
The principle that a defendant's invocation of his rights to remain silent and to the assistance of counsel must be honored *110 scrupulously is a corollary of the prophylactic protections afforded in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under Miranda, the fifth-amendment privilege against self-incrimination first applied to the states through the fourteenth amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) requires that a suspect be apprised of his rights to remain silent and to have an attorney present. The premise of this prophylactic rule is the inherently coercive nature of custodial interrogation: "without proper safeguards," the Miranda Court held, "the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda, supra, 384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. Because custodial interrogation is presumptively coercive, any statements given in the absence of explicit warnings are inadmissible; conversely, silence after the issuance of explicit warnings requires an end to interrogation:
Once warnings have been given, the procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. * * * [A] statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.
[Id. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723.]
Miranda left open, however, the question of "under what circumstances, if any, the authorities may resume interrogation" when the rights to silence or counsel are asserted. State v. Hartley, supra, 103 N.J. at 263.
The United States Supreme Court has adopted an approach that varies with the right asserted. If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh'g den., 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), all interrogation must cease until a lawyer has been provided, "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at *111 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982). If, on the other hand, defendant asserts his right to silence, then under Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), "the admissibility of statements obtained after the person in custody has decided to remain silent depends * * * on whether his `right to cut off questioning' was `scrupulously honored.'" Id. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321; see State v. Hartley, supra, 103 N.J. at 265. Here, defendant argues that he invoked both protections, that is, that he invoked his right to silence shortly after interrogation began, and that he invoked his right to counsel both before the polygraph examination and after his conversation with Chief Peterson. Accordingly, both the Mosley "scrupulously honor" test and the Edwards per se rule are implicated.
2.
Defendant's argument that the invocation of the right to cut off questioning was not scrupulously honored is predicated on the absence of a finding of fact at the suppression hearing. Gerald testified at the hearing that he told Detective Frank early in the questioning that he was under the influence of alcohol and drugs and could not answer Frank's questions; specifically, he testified that he had told Detective Frank that he had drunk three to four pints of liquor and three or four "cases" (i.e., six-packs) of beer, and had taken heroin and cocaine that day. Gerald testified that he asked to lie down and talk to the police later, but that Frank refused that request.
Defendant argues that "[t]here is simply no factual finding as to the defendant's statement that he asked Det. Frank to cease questioning so he could rest for a while due to his condition, a condition denied flatly by the interrogating officer but corroborated * * * by Chief Peterson, in whose testimony the trial court put great stock." Defendant notes that when a confession has been admitted at trial, appellate review of the *112 record "must be `wide and penetrating' to assure that the fundamental fairness requirement of due process is met." State v. Cook, 47 N.J. 402, 416 (1966) (quoting State v. Smith, 32 N.J. 501, 544 (1960), cert. den., 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961)). In the absence of a finding of fact at the suppression hearing, the defendant contends, this Court "cannot conclude by a preponderance of the record or beyond a reasonable doubt that the defendant's request to cut off the questioning was scrupulously honored * * *."
Although it is true that appellate review of the record must be "wide and penetrating" when a confession has been admitted into evidence, State v. Cook, supra, it is also true and acknowledged in State v. Cook itself that "weigh[ing] the credibility of the various witnesses who testified at the [hearing is] a task best left to the trial judge * * *." 47 N.J. at 416. It is also beyond question that this Court has the power to make findings of fact on the basis of the record before it, a power properly invoked "where the sound administration of justice calls for appellate `intervention and correction.'" State v. Yough, 49 N.J. 587, 596 (1967) (quoting State v. Johnson, supra, 42 N.J. at 162). The exercise of this power is particularly appropriate where, as here, "the findings [are] not exclusively factual but [are] intertwined with legal implications * * *." Ibid.
The trial court's suppression ruling did not address the specific issue of whether defendant had in fact attempted to cut off questioning; defendant's claim that he had so attempted is predicated, however, on his claim that his mental condition was impaired because of alcohol and drug use, a claim that the trial court discounted: "There was evidence adduced by the defense that he was under the influence of intoxicants, that he was under the influence of drugs. It is not credible, when I consider all of testimony in the case, including the testimony of the police officers and including the testimony of Mr. Dicks [sic] and Mr. Peterson * * *."
*113 That conclusion finds abundant support in the record. Gerald's assertion that he told Detective Frank he was intoxicated, could not answer his questions, and wished to rest is belied by (1) his signing of the waiver form, (2) his acknowledgements that he understood his rights, (3) his statement that he wished to cooperate in the investigation, (4) his denial of drug use to Mayor Dix two hours later, (5) the testimony of Detective Frank, Investigator Bolis, Mayor Dix, and Chief Peterson that Gerald appeared alert and coherent, and (6) the testimony of Frank and Bolis that the defendant never tried to cut off questioning. Beyond Gerald's own testimony, the only corroboration offered by the defense is Detective Frank's admission that he, not Gerald, checked off the waiver form (although Gerald signed it), and the statement of Chief Peterson, who noticed that Gerald looked tired and his eyes looked "funny." Even Chief Peterson testified, however, that defendant appeared alert and coherent. We agree with the trial court that defendant's claim that his mental condition at the time of questioning was impaired by drug and alcohol use is not credible. Having rejected that claim, we necessarily reject defendant's further claim that because of that alleged mental impairment, he attempted to cut off questioning.
3.
We next consider defendant's assertion that he twice asserted his right to counsel once prior to the administration of the lie-detector test, and again after he had confessed to Chief Peterson, when Detective Frank and Investigator Bolis asked if he would be willing to confess on tape and that these invocations were not honored. In respect of his first claimed request for counsel, defendant relies on his testimony at the suppression hearing that he asked for an attorney prior to the polygraph but that Detective Frank turned him down, telling defendant that he would not need a lawyer if (a) he told Frank what Frank needed to know, and (b) he was not directly involved. Frank also allegedly stated that it was too late at night to obtain counsel.
*114 Defendant again argues that "there is simply no factual finding on the issue of whether * * * the defendant requested an attorney prior to the polygraph. If the court below had found that he had, the questioning would clearly have had to terminate under the per se rule of Edwards * * *." The State counters that "[t]he record below clearly illuminates the fallacy of these contentions * * *. [D]efendant neither requested an attorney nor asked that questioning cease." Again, the trial court's findings of fact do not address the question of whether defendant invoked his right to counsel prior to the polygraph; that court's findings are premised, instead, on a general disbelief in defendant's testimony. In other words the fact that defendant did not request counsel before the polygraph was presumed by the trial court, for otherwise it would not have reached the question of whether defendant had requested counsel a second time after his confession to Chief Peterson.
From our reading of the testimony, we conclude that Gerald did not invoke his right to counsel before the polygraph examination. Quite apart from the flat denials of Detective Frank and Investigator Bolis, we are struck by the fact that such a request is utterly inconsistent with defendant's subsequent conduct. Why, for instance, if he had invoked his right to counsel, did he undergo the polygraph test, when Mayor Dix both urged him not to take it and reminded him of his right to counsel? Defendant asks this Court to believe, moreover, that officers Frank and Bolis, who would later offer to cease questioning when the defendant indicated that he wanted a lawyer before making a taped statement, would have completely disregarded his desire for counsel earlier. In light of these facts defendant's testimony is not credible.
A more difficult issue, however, is posed by the defendant's second alleged invocation of the right to counsel. This occurred after he had confessed to Chief Peterson and after he had been asked to make a taped statement. Defendant replied that he was willing to answer the officers' questions but that he *115 wanted to consult with counsel before making a taped statement. The officers then offered to cease questioning, but the defendant indicated that he would feel better if he talked about the incident. These facts raise two possible issues: first, whether defendant's statement constituted an assertion of the right to counsel, and if so, whether the police properly honored that assertion.
As this Court recognized in State v. Kennedy, supra, 97 N.J. at 285, "access to counsel is regarded as so essential to the vindication of the fifth-amendment privilege * * * that `[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.'" (quoting Miranda, supra, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723). This per se rule applies "unless the accused himself initiates further communication, exchanges or conversations with the police." Edwards v. Arizona, supra, 451 U.S. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386; see also Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405, 411-12 (1983) (plurality opinion) (accused must initiate dialogue and validly waive right).
The threshold inquiry, however, is whether the defendant's statement rose to the level of an invocation of his right to counsel. The trial court held that "clearly he had not * * * requested an attorney. He had, in fact, indicated that only if they wished a taped statement would he decline to do that and that at some point in the future he might do that if he had an attorney * * *." As this Court has stated, however, "because the right to counsel is so fundamental, an equivocal request for an attorney is to be interpreted in the light most favorable to defendant." State v. Wright, supra, 97 N.J. at 119 (citing State v. McCloskey, supra, 90 N.J. at 26 n. 1); see also Maglio v. Jago, 580 F.2d 202, 205 (6th Cir.1978) ("Maybe I should have an attorney" sufficient to invoke right); United States v. Clark, 499 F.2d 802, 805 (4th Cir.1974) ("I had better talk to a lawyer" is sufficient). In State v. Wright, supra, the Court *116 noted the proper procedure to be followed by police where an assertion of Miranda rights is equivocal:
[W]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed.
[97 N.J. at 120 n. 4 (quoting United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir.1976), quoted in State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980)).]
In our view the defendant's statement was equivocal at best. His indication that he would answer all questions, but would not make a taped statement unless he had seen a lawyer, was unclear regarding his invocation of his right to counsel.
Under those circumstances, the officers' conduct conformed strictly with the procedure noted in State v. Wright, supra. They ceased questioning and offered to cease the interrogation, asking, in effect, for defendant to clarify his intention. Only when his answer that he wished to discuss the crime, that it would make him feel better made "clear that he [was] not invoking his Miranda rights [did] substantive questioning * * * resume[]." State v. Wright, supra, 97 N.J. at 120 n. 4. This view is consistent with that recently taken by the Supreme Court. In Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987), the Court rejected the Connecticut Supreme Court's view that an "expressed desire for counsel before making a written statement served as an invocation of his right for all purposes." Id. at 526, 107 S.Ct. at 831, 93 L.Ed.2d at 926. The Court reasoned that "Barrett made clear his willingness to talk about the crime * * *. Nothing in our decisions, however, requires authorities to ignore the tenor or sense of a defendant's response to * * * warnings." Id. at 527-28, 107 S.Ct. at 831, 93 L.Ed.2d at 927. Likewise, in this case defendant made clear his willingness to talk about the crime; his "limited requests for counsel * * * were accompanied by affirmative announcements of his willingness to speak with authorities." Id. at 529, 107 S.Ct. at 832, 93 L.Ed.2d at *117 928. We therefore affirm the conclusion of the trial court that defendant did not invoke his right to counsel.
4.
Once it is determined that there was no invocation of Miranda rights that was not accorded respect by the authorities, the question then becomes whether the defendant's waivers of his rights were (1) knowing and intelligent, and (2) voluntary. See, e.g., Hartley, supra, 103 N.J. at 260. The trial court in this case held that Gerald's waivers of his rights were knowing and intelligent, notwithstanding defendant's argument that his request for counsel only in the event of a taped statement indicated that he did not understand his rights. The court also held that the statements were voluntary, despite defendant's contention that he was pressured by his friends Dix and Peterson (and, to a lesser extent, Frank) to confess. The court stated: "The testimony is quite clear and, perhaps, because of the fortuitous event that Chief Peterson happened to be the Chief of Police of Pleasantville, the defendant wanted to speak to him * * * but that was voluntary on his part. It was not coerced." The court found that "there was no plot * * * to deceive the defendant because of the fact that they were friends."
The standards for a valid waiver of Miranda rights were discussed by this Court in State v. Kennedy, supra, 97 N.J. 278:
When * * * the accused is advised of his rights and * * * "the interrogation continues without the presence of an attorney and a statement is taken," a heavy * * * burden rests on the government "to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."
[Id. at 286 (quoting Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724).]
The inquiry is "whether, as an individual, case-by-case matter, a waiver * * * has been knowing, voluntary, and intelligent." Ibid. (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 1461, 1466 (1938)). The court should consider "the particular facts and circumstances" of the case, "including the background, *118 experience and conduct of the accused." North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286, 293 (1979) (quoting Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed.2d at 1466). The United States Supreme Court has stated that the prosecutor need prove waiver by only a preponderance of the evidence. E.g., Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 485 (1986). In New Jersey, however, we have long adhered to the view that as a matter of state law, the waiver must be proven beyond a reasonable doubt. See Bey II, supra, 112 N.J. at 134; State v. Miller, 76 N.J. 392, 404-05 (1978); State v. Kelly, 61 N.J. 283, 294 (1972); State v. Yough, supra, 49 N.J. at 600-01; State v. Whittington, 142 N.J. Super. 45, 49-50 (App. Div. 1976).
a
Defendant's claim that those waivers of his rights before Detective Frank and Investigator Bolis, Mayor Dix, and Chief Peterson were not knowing and intelligent are premised on (1) defendant's alleged intoxicated state and (2) his equivocal assertion of his right to counsel only in the event his statement were to be taped. As discussed above, the question of intoxication was directly addressed by the trial court, which found that defendant was not so impaired as to cloud his understanding. We "see no reason to dispute these conclusions, based as they are on the trial court's first-hand observation of the witnesses * * * and adequately supported by the evidence." State v. Kennedy, supra, 97 N.J. at 287.
With regard to the his allegedly equivocal invocation of the right to counsel, defendant relies on Edwards v. Arizona, supra, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. In Edwards, the defendant was afforded his Miranda warnings and invoked his right to counsel, after which interrogation ceased. The next morning, however, he was told that he "had to" talk with a detective. The detectives informed him of his Miranda rights, and played a taped statement of an alleged *119 accomplice. Edwards stated "I'll tell you anything you want to know, but I don't want it on tape." Id. at 479, 101 S.Ct. at 1882, 68 L.Ed.2d at 383. Although Gerald, like Edwards, indicated his unwillingness to speak on tape, the analogy to Edwards is at best tenuous, for the dispositive fact in Edwards was that the defendant had earlier clearly asserted his right to counsel, an assertion that was not honored when the authorities initiated further questioning without affording counsel. See id. at 482, 101 S.Ct. at 1883, 68 L.Ed.2d at 384-85. In this case there was no prior invocation of the right to counsel. There is, it is true, some suggestion in Edwards that the defendant's "waiver" was not "knowing and intelligent"; the Court upbraided the lower courts because "neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it." Id. at 484, 101 S.Ct. at 1884, 68 L.Ed.2d at 386. That suggestion is undermined, however, by the Court's decision in Connecticut v. Barrett, supra, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920, in which the accused indicated his willingness to talk, but said that he wished to consult with counsel before making a written statement. The Court rejected the argument that this "distinction * * * between oral and written statements indicates an understanding * * * so incomplete that we should deem his limited invocation testimony * * * that [he] fully understood the Miranda warnings." Id. at 530, 107 S.Ct. at 832-33, 93 L.Ed.2d at 929; see also id. at 533-34, 107 S.Ct. at 834-35, 93 L.Ed.2d at 931 (Brennan, J., concurring) (respondent's testimony that he understood his rights overcame suggestion that he did not). Likewise, in this case Gerald testified that he understood his rights, at least by the time he talked to Chief Peterson, and he otherwise made clear his willingness to talk. Cf. State v. McKnight, 52 N.J. 35, 55 (1968) ("if a defendant was given the Miranda warnings * * * his `waiver' was no less * * * `knowing' and `intelligent' because he misconceived the inculpatory *120 thrust of the facts he admitted, or because he thought that what he said could not be used because it was oral * * *."). The trial court's holding that his waiver was "knowing" and "intelligent" is unassailable.
b
There is no bright-line test for determining the voluntariness of a waiver of rights; rather, "[i]n determining the issue of voluntariness, and whether a suspect's will has been overborne, a court should assess the totality of all the surrounding circumstances." State v. Miller, supra, 76 N.J. at 402. The circumstances, for this purpose, include "the characteristics of the suspect and the details of the interrogation." Id. at 402-03. In this case the trial court concluded "that the defendant was handled in a fair and proper manner * * *. I find here that the statements were voluntary, that his will was not overborne. In fact, he wanted to talk. It had been on his mind. It had been bothering him." Defendant argues, however, that Mayor Dix and Chief Peterson used their status as Gerald's friends to manipulate him into confessing. Specifically, defendant points to Mayor Dix's admonition, after the polygraph, that the defendant had better "get himself straightened out," and to Chief Peterson's instruction to Gerald to "sit down" with the detectives "and go over the facts again." The trial court acknowledged that although the described conduct might appear to be coercion, it did not overbear the will of defendant, as demonstrated by the fact that defendant did not cooperate entirely with the detectives (i.e., he refused to give a taped statement).
In State v. Miller, supra, 76 N.J. at 403, the inquiry was "whether an interrogating officer can appeal to a suspect by telling him that he is the suspect's friend and wants to help him * * *." This Court held that the procedure was permissible, but cautioned that "this technique moves into a shadowy area and if carried to excess in time and persistence, can cross that intangible line and become improper." Id. at 404. The Miller *121 Court stressed that the defendant had had previous exposure to Miranda warnings (i.e., prior arrests), and that "[h]e was in no way deluded or misled into believing that the state trooper was acting in any capacity other than as an interrogating police officer in the investigation of a serious crime." Ibid. In this case Gerald continually waived his rights, and both Mayor Dix and Chief Peterson interjected their official capacities into the process by reminding defendant of his rights. Furthermore, the defendant told Chief Peterson that he had wanted to tell the Chief about the incident, and had, in fact, driven by the Chief's house a few times with that intention, but had lost his nerve. Moreover, neither friend's coercion was implicated in defendant's first waiver of his rights, executed shortly after he was taken into custody. Therefore, the State has met its burden, and we agree with the trial court's conclusion that the defendant's waivers were voluntary.
VIII
Defendant alleges for the first time on appeal that the trial court's failure to include instructions on voluntary intoxication in its supplemental jury charges constituted plain error under Rule 2:10-2. In State v. Hock, supra, 54 N.J. at 538, we defined plain error in a jury charge as a "legal impropriety * * * prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Applying this standard we disagree with defendant that the supplemental instructions require reversal.
The trial court's initial charge properly instructed the jury that if it had a reasonable doubt on the question of whether defendant's intoxication rendered him incapable of acting purposely or knowingly, then it must acquit defendant on those counts of the indictment alleging purposeful and knowing conduct, including murder. In so doing, the court correctly cautioned *122 the jury that intoxication is a defense to such crimes only if it produces a prostration of defendant's faculties. See State v. Cameron, 104 N.J. 42, 54-56 (1986), and authorities cited therein. Defendant's contentions focus on the fact that the jury twice requested additional instructions from the court regarding the distinction between purposeful and knowing murder on the one hand, and aggravated manslaughter on the other. Defendant did not object to the supplemental instructions, but now argues that the trial court committed plain error when it failed to re-instruct the jury sua sponte on those two occasions concerning the intoxication defense.
First, it is apparent that when read as a whole, the trial court's initial and supplemental instructions adequately explained the intoxication defense to the jury. State v. Freeman, 64 N.J. 66, 69 (1973). Second, even assuming that the court below erred in its supplemental instructions, we are convinced that any such error was harmless. Although there was testimony regarding alcohol and drug use by Gerald and his co-defendants on the day of the crime, the record belies any claim that defendant was so intoxicated that his faculties were prostrated. We therefore reject defendant's argument that there was plain error in this regard.
IX
Defendant argues that the sentences imposed are excessive in light of our decision in State v. Yarbough, 100 N.J. 627 (1985), cert. den., 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), which was announced more than one year after the date of sentencing in this case. We decline defendant's invitation to modify his sentence.
The court below merged the related offenses and sentenced defendant on the remaining counts as follows: on the fourth count, alleging a second-degree robbery of John Matusz, the court imposed a ten-year term with a five-year parole disqualifier. On the sixth count, alleging a second-degree robbery of *123 Lottie Wilson, the court imposed a ten-year sentence with a five-year parole disqualifier to run consecutively to the sentence imposed on the fourth count. On the second count, alleging a second-degree burglary, the court imposed a five-year sentence to run concurrently with the sentence imposed on the fourth count. The court also concluded that if the sentence of death imposed on Gerald's murder conviction were ever reduced to a term of imprisonment, then the cumulative sentence noted above was to be served consecutively to the term imposed on the murder count. Defendant argues that such a result violates one of the sentencing guidelines stated in Yarbough, namely, that "there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms * * * that could be imposed for the two most serious offenses." 100 N.J. at 644. As we understand it, defendant's contention seems to be that he potentially faces a term of life imprisonment plus aggregated consecutive terms of twenty years, whereas under the passage just quoted from Yarbough he should face only a term of life imprisonment for the most serious offense (murder), with a consecutive sentence of ten years for the second most serious offense (second-degree robbery).
We need not address the question of the retrospective application of Yarbough, see, e.g., Coons v. American Honda Motor Co., 96 N.J. 419 (1984), because of our conclusion that defendant's argument is, at best, premature in light of our disposition of this case. If defendant were again sentenced to death after remand, his argument in this respect would be mooted. Even assuming Yarbough's applicability, we recall our statement in that case that "even within the general parameters that we have announced there are cases so extreme and so extraordinary that deviation from the guidelines may be called for." 100 N.J. at 647.
For all of the foregoing reasons we reject defendant's "excessive sentence" argument.
*124 X
We turn now to defendant's contention that he was denied a fair trial by reason of the assistant prosecutor's alleged misrepresentation to the jury of the plea agreement entered into by his codefendant John Bland. Again, we are unable to conclude that there was any plain error under Rule 2:10-2.
Before the trial in Gerald's case, Bland entered a retraxit plea of guilty to the felony murder of Paul Matusz. In exchange for the plea the State agreed to dismiss the remaining counts of the indictment against him and to recommend the maximum sentence of life imprisonment with a thirty-year parole disqualifier. The record does not inform us of any discussion at that time concerning Bland's testifying on behalf of the State against Gerald.
When Bland first appeared for sentencing, the court indicated its concern that the plea bargain was neither fair to the State nor in the "interest of justice." Although the record is not entirely clear, it appears that the court was concerned with the possible issuance of a superseding indictment charging Bland in connection with the death of John Matusz, who had died approximately two-and-a-half months after his assault. The question of whether the elder Matusz's death was causally related to the assault was the subject of dispute between the victim's personal physician and the Atlantic County Medical Examiner. The trial court adjourned the sentencing hearing pending clarification of that issue.
Within hours, Bland and the State again appeared before the court with an amended plea agreement under which the State agreed not to seek a superseding indictment against Bland in connection with John Matusz's death. For the first time, the assistant prosecutor indicated that Bland had agreed to testify against Gerald. Defendant now contends that Bland's decision to testify was additional consideration offered in exchange for the State's promise not to seek the superseding indictment, *125 whereas the State's position is that there was no link between those decisions.
Defendant moved before trial for an order in limine barring any reference in the jury's presence to the elder Matusz's death, apparently fearing that such testimony might be unduly prejudicial to him. The trial court granted the motion. On his direct examination, Bland stated that his decision to testify against Gerald was motivated not by any new concessions offered by the State during plea negotiations, but rather by the fact that because Gerald had "snitched" on him, he was going to spend at least the next thirty years in prison. On his cross-examination of Bland, defense counsel made no attempt to inquire into the possibility that the decision to testify was prompted by the promise not to prosecute in connection with John Matusz's death.
During his guilt-phase summation, the assistant prosecutor commented that Bland had received no benefit in exchange for his decision to testify. Although defense counsel made no objection to that comment, defendant argues on appeal that because of the court's prior order barring reference to John Matusz's death, he was "hamstrung" and could not explore the true terms of Bland's agreement. Defendant urges that the assistant prosecutor's failure to characterize accurately the terms of the agreement in his summation was a violation of his right to due process.
Assuming for purposes of this discussion that the assistant prosecutor did in fact breach a duty to disclose in full the terms of the plea agreement (see State v. Taylor, 49 N.J. 440, 448 (1967)), we are satisfied that his conduct did not infect the proceedings with plain error that was "clearly capable of producing an unjust result * * *." R. 2:10-2; see also State v. Higglewith, 33 N.J. 300, 314 (1960) ("not every suspected deviation from perfection on the part of a prosecutor will justify a reversal of a conviction. Before such a result ensues, his infraction must be clear and unmistakable and must substantially *126 prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)).
To the extent that the terms of the plea agreement were relevant, they affected only Bland's credibility. From our review of the record, it is apparent that the jury was made aware of Bland's bias against Gerald, given Bland's testimony that he was angry at Gerald for having "snitched." In addition, the trial court adequately instructed the jury that it must give "careful scrutiny" to the testimony of Gerald's codefendants "and consider whether they * * * have a special interest in the outcome of the case and whether their testimony was influenced by the hope or expectation of any favorable treatment or reward or any feelings of revenge or reprisal." We therefore reject defendant's argument.
XI
Defendant next argues that his death sentence is disproportionate. His claim rests on two independent grounds: (1) given the extent of his participation in the crimes, his sentence is excessive when compared to the sentences received by his accomplices (intra-case disproportionality); and (2) his sentence is excessive when compared with that imposed in other death-penalty-eligible cases throughout the state (inter-case disproportionality). We need not consider these claims in light of our decision to remand the matter for further proceedings relating to defendant's death-eligibility.
XII
We now turn to defendant's grand and petit jury challenges as set forth in his supplemental brief. Defendant did not file a motion in the trial court challenging the array of the grand jury that indicted him. He did, however, file a motion challenging the petit jury array. This motion was withdrawn by defense counsel on May 1, 1984, the first day of trial. On May 19, 1984, *127 defendant was sentenced to death. In the original appellate briefs filed on March 25, 1985, on direct appeal to this Court, defendant did not raise any challenges to the grand or petit jury arrays that indicted, tried, and convicted him.
Meanwhile, on May 30, 1984, jury selections had begun in the trial of Ronald E. Long, another Atlantic County capital defendant. On that day, Long challenged the petit jury array on the basis of insufficient minority representation. His pretrial challenge to the grand jury array had previously been withdrawn. Although the trial court summarily rejected Long's petit jury claim because it was untimely, it was subsequently determined that the number of available jurors on the special panel selected for capital cases in Atlantic County was insufficient under Rule 1:8-5. Thereafter, the existing panel was excused and the trial was rescheduled for July 24, 1984. Long reinstituted his grand and petit jury challenges on June 21, 1984. Despite the untimely nature of Long's subsequent attack on the jury array, the Law Division held evidentiary hearings and concluded that the Atlantic County jury selection system "did not rise to the task of providing juries that were representative of a fair cross section of the community in which all had an equal chance of selection." State v. Long, 204 N.J. Super. 469, 490 (1985).
Almost one year after his conviction, Gerald moved to have this Court take judicial notice of the record of the Long jury challenge proceedings. At the same time, Gerald sought permission to file supplemental briefs on the following issues: (1) whether defendant waived his right to object to the jury array under Rules 3:10-2, 1:8-3, 3:10-1, and 3:10-5, and (2) whether the grand and petit jury selection process in use at the time of Gerald's indictment and conviction violated N.J.S.A. 2A:71-2, the jury selection statute. We granted both motions.
A
We first address the waiver issue. The Rules governing grand and petit jury challenges, as well as the more general *128 provisions governing pretrial motions, impose a thirty-day time limitation on challenges to the jury arrays. These Rules, however, allow enlargement of that period at the court's discretion, generally on a showing of good cause. R. 3:6-2, R. 3:10-3, R. 3:10-5, R. 1:8-3. Our courts have strictly enforced the time limitations on pretrial jury challenges, reasoning that to do otherwise would impede the orderly administration of our criminal justice system. See State v. Laws, 50 N.J. 159, 183 (1967) (where counsel had "many months to investigate," they could not move belatedly for "a general investigation as to the manner in which Grand Juries in [the] [c]ounty were chosen. * * * Under the circumstances, any other course would have grossly disserved the orderly administration of justice."), modified on other grounds, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968); State v. Tucker, 143 N.J. Super. 69, 72 (App. Div. 1976) ("defendant's alleged unawareness that `he might have been able to successfully challenge the Grand Jury array,' * * * affords no basis for granting [leave to make a post-conviction challenge] * * *. Absent a showing of actual prejudice * * * a defendant who has failed to make a timely challenge * * * may not, after his conviction, attack the grand jury's composition in a proceeding for post-conviction relief."); State v. Robinson, 128 N.J. Super. 525 (Law Div. 1974) (challenge to grand jury array made on day of trial, when defendants' counsel had many months to investigate and when petitioner provided no facts to support allegations that they were deprived of opportunity to challenge jury system, properly denied); State v. Hughes, 128 N.J. Super. 363, 366 (App. Div.), certif. den., 66 N.J. 307 (1974) (where ground asserted reasonably could have been put forward during prior proceeding, defendant appealing from conviction of life sentence waived right to challenge grand jury by failing to raise issue prior to trial).
As mentioned, however, the language of the Rules counsels against mechanical application. Implicit in the extension provisions is the recognition that circumstances will exist in which *129 enforcement of the waiver will be unjust. Thus, where the interests of justice would be served by allowing a challenge to proceed, the courts have exercised their discretion to hear the issues. See State v. Long, 198 N.J. Super. 32, 38 (App. Div. 1984) (holding on interlocutory appeal that trial court did not abuse its discretion in enlarging the time period within which defendant could bring grand jury challenge. Whether standard be good cause or some lesser burden, materials presented were sufficient to support time extension, particularly considering that the "right to an impartial jury `is entitled to the most zealous protection in the context of a criminal prosecution in which the defendant faces the death penalty.'" (citation omitted)); State v. Porro, 152 N.J. Super. 259, 264 (Law Div. 1977) ("Although it is true that the time limitations prescribed by our court rules must be honored so as to advance the orderly administration of justice, these rules must maintain a degree of guarded flexibility and adapt where good cause is shown and the interests of justice would be served."), aff'd, 158 N.J. Super. 269 (App. Div.), cert. den., 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978).
In the context of the death penalty, we have been particularly careful to avoid slavish adherence to procedural Rules that would bar a defendant's claim that is otherwise meritorious. "Imposition of the penalty of death is `profoundly different from all other penalties' * * * and, as such, requires more, not fewer, procedural safeguards * * *." State v. Biegenwald, 96 N.J. 630, 639 (quoting Lockett v. Ohio, supra, 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990), clarified by 97 N.J. 666 (1984); see also State v. Williams, 93 N.J. 39, 61-63, 71 (1983) (recognizing that "[t]he death penalty is the categorical imperative for trial fairness," the Court observed that in evaluating closure applications, judges should be mindful that "the concerns * * * raised in capital cases are especially acute and will entail extraordinary care and attention"); State v. Jackson, 43 N.J. 148, 156 (1964) (defendant's entitlement to a fair trial free from prejudicial error is particularly acute where lives are at *130 stake), cert. den., 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965).
We conclude that defendant has not waived his jury claims. This is not a case in which defendant offers nothing but unsupported allegations. Cf. State v. Robinson, supra, 128 N.J. Super. at 529-30 (challenges to grand and petit jury arrays not supported by facts). Rather, he relies on the findings of a trial court in which important questions of statutory violations were raised relevant to defendant's case. This is not an ordinary criminal appeal, it is a capital appeal that implicates all of the heightened concerns of procedural fairness. Moreover, "jury selection is an integral part of the fair process to which every criminal defendant is entitled. It is vital that juries be selected in a manner free from taint and suspicion. To that end the pertinent practice safeguards in the statute must be carefully observed. In capital cases, this responsibility is of the deepest concern." Ramseur, supra, 106 N.J. at 230 (citations omitted). Sufficient cause exists to grant an enlargement of the time period to allow the defendant to bring this challenge.
B
We need not here specify the respects in which the Atlantic County jury selection process was deficient. The details of those deficiencies have been set forth in the reported Law Division opinion in Long, supra, 204 N.J. Super. at 474-80. Suffice it to say that the defects were procedural and not substantive. They stemmed from the limited ability of technology to accomplish what war once easily accomplished by drawing names from a box.
Some examples of the technological flaws in the system include: (1) the "match-merge" process of culling names duplicated on the voter and driver lists was ineffective because, for example, some people used different names on the different lists; (2) the challenged source list contained 180,000 names of persons between the ages of eighteen and seventy-four when *131 the census figures totalled only 130,000; (3) the mailing of questionnaires to source-list persons to obtain a qualified list was flawed by the choice of a computer internal number that had the effect of bunching the computer runs, causing people with the same last name and address to experience frequent selection; (4) drawing names from the qualified list was affected by the use of a low interval number resulting in certain portions of the list being "over-selected"; and (5) the use of a sorting device based on the fifth letter of last names produced jurors from the same household at higher frequencies than odds would suggest.
In Long, the court considered these identical contentions and concluded that the deviations were neither "purposeful nor ill-intentioned," id. at 486, and although it had not been proven that "any cognizable class ha[d] been excluded or that defendant ha[d] suffered any prejudice," the process was "decidedly non-random." Id. at 485 (footnote omitted).
The court observed that
those administering the juror selection process were certainly making their best effort to select jurors, from the lists mandated by the Legislature, in an unbiased and all-inclusive manner. The shortcoming here does not represent an invidious discrimination based on race, color, creed, national origin, ancestry, matrimonial status or sex. They simply did not go behind the facially random, that is, unintentional, blind, purposeless or haphazard way in which the computer selection was initiated. Their sincere belief was that the process did not discriminate, did spread the burden across the community and did fulfill the requirements of the law. It is only now, that "random" has been defined with new dimension, and the process used in its pursuit disected [sic] and microscopically examined, that the lack of "randomness" is known and understood.
[Id. at 488 (citation omitted).]
However, here, as in Long, there was no evidence that the panel as composed was not representative. There has been no suggestion that the independence of the grand or petit jury was compromised. Cf. State v. Hart, 139 N.J. Super. 565, 568-69 (App. Div. 1976) (assistant prosecutor's conduct "impinged upon the independence of the grand jury and improperly influenced its determination."). Nor was there any indication "that the panel was in any way biased or prejudiced or that `the grand *132 jury had before it no substantial or rationally persuasive evidence upon which to base its indictment.'" Ramseur, supra, 106 N.J. at 232 (quoting Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 409, 100 L.Ed. 397, 403 (1956) (Burton, J., concurring)). In fact the methods used were chosen out of a commitment to improve the juror-selection process rather than an attempt to undermine or to inject invidious discrimination into it. The motor vehicle lists were added especially for that purpose. Now, despite the efforts of the Atlantic County Grand Jury Commission, we and they have learned that the method chosen produces non-random results. This is not the case where the procedures used bore no semblance to the randomness requirements of the selection statutes. See State v. Wagner, 180 N.J. Super. 564, 566 (App. Div. 1981) (in selection of trial jury from general panel, trial court seated first fourteen jurors to enter room in jury box; jurors challenged and excused following questioning were at various rows in the courtroom where trial court started at one point and continued "right down the row"). The procedures used here did not constitute clear statutory or constitutional violations. As we recently said in Ramseur, supra, 106 N.J. at 233:
Were we to sense any * * * fundamental injustice, we would not hesitate to call for further proceedings. Although the procedures used obviously implicated the randomness of the selection process, there is no showing that they substantially undermined the randomness principle, and when, as here, the purpose of the judges' actions was to achieve greater racial balance and not impermissibly to exclude members of a cognizable group, the statute does not call for dismissal.
We note further that in Long, the court concluded that the relief there granted would be prospective only, declining to apply its new ruling to even the defendant Long himself. 204 N.J. Super. at 487-90.
The purpose of the Long rule was to correct certain aspects of the Atlantic County jury selection system that affected the randomness of the procedures through assurance of numerical evenness. Ramseur, supra, 106 N.J. at 231; Long, supra, 204 N.J. Super. at 483-84. The decision was not aimed at eradicating *133 nor, as noted, was there any showing of invidious discrimination of any kind. Rather the Long rule seeks to implement the requirement that jurors be selected in a purely random fashion so that every county resident will have an equal chance of serving. Given the peculiarities of the present situation in which the irregularities in the selection process were the result of an imperfect conception of how to use technology to implement, rather than undermine, the randomness requirement, we hold that N.J.S.A. 2A:71-2 does not require reversal.
XIII
The judgments of conviction on all but the thirteenth count the capital-murder conviction are affirmed. The judgment of conviction for capital murder is reversed and the cause remanded.
O'HERN, J., concurring.
I agree entirely with the Court's well-reasoned explanation that death would not be the appropriate punishment under New Jersey's capital punishment act when the accused did not intend the death of the victim. I disagree that the Code contemplates such a result but would not, in any event, further complicate our capital murder law by creating a new form of murder not found in the Code. I offer these few suggestions for harmonizing the Code's current definition of murder with the capital punishment act. Much of what I write will be found in the majority opinion but is included here for continuity.
I
I begin my analysis by recognizing that there is a difficulty in interpreting the Act occasioned by the Legislature's selective inclusion of some, but not all, of the provisions of the Model Penal Code (MPC). We noted this legislative modification of the MPC definition of murder in State v. Grunow, 102 N.J. 133, 138-39 (1986):
*134 The drafters of the New Jersey Penal Code [originally] proposed four categories of murder: (1) criminal homicide committed purposely, 2C:11-3(a)(1); (2) criminal homicide committed knowingly, 2C:11-3(a)(2); (3) criminal homicide committed "recklessly under circumstances manifesting extreme indifference to the value of human life," 2C:11-3(a)(3); and (4) felony murder, 2C:11-3(a)(4).
[Citing II Commentary: Final Report of the New Jersey Criminal Law Revision Comm'n 50 (1971) [hereinafter Commentary].]
The Commission Report would have limited capital murder to only two categories: purposeful murder and felony murder. Commentary at 168. Murder in New Jersey had previously been divided into two degrees as part of an early reform to mitigate the death penalty, the first degree characterized by the "willful, deliberate and premeditated killing." N.J.S.A. 2A:113-2, repealed by L. 1978, c. 95, 2C:98-2. All other murders were of the second degree and not subject to the death penalty. N.J.S.A. 2A:113-4 (repealed 1978). Criminal homicides that were not murder were manslaughter.
Our pre-Code statute did not define murder. Murder was a common-law crime. We seem to have adopted in New Jersey, as elsewhere, the common-law understanding that an unlawful homicide was murder if it resulted from an act of killing accompanied by "one of the following states of mind: (a) an intention to cause the death of or grievous bodily harm to any person or (b) knowledge that the act will probably cause either of these results, even though the actor hopes they may not occur or is indifferent about them, or (c) an intention to commit a felony or to resist a peace officer in the execution of his duty." Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Colum. L. Rev. 700, 702-03 (1937) (footnote omitted) [hereinafter Wechsler & Michael]. See also State v. Gardner, 51 N.J. 444, 458 (1968) (citing Sir James Stephen Digest of the Criminal Law (1877) (defining "malice aforethought")).
Although the first two of Stephen's categories are phrased differently, they were difficult to distinguish at common law. Professor Wechsler noted that
[t]he second of Stephen's categories of murder included, as we have said, homicides caused by an act which the actor knows will probably cause death or *135 grievous bodily harm, a case treated summarily and ambiguously by the earlier writers in so far as it was treated at all. It has commonly been thought to be the case of extremely gross recklessness resulting in death, to be distinguished from negligent homicides that are only manslaughter by the relatively greater danger of the act and the consequently great indifference to the safety of others manifested by it.
[Wechsler & Michael, supra, 37 Colum.L.Rev. at 709-10 (footnotes omitted).]
As originally introduced, however, through L. 1978, c. 95, 2C:11-3, the New Jersey Code of Criminal Justice made no provision for any form of reckless murder, whether it be "extreme indifference" or through intention to cause "serious bodily injury" to another; it provided only for reckless manslaughter. Professor Knowlton, Chairman of the Commission, explained:
The statute departs significantly from the commission report in two respects. The first is the elimination of reckless murder. This is highly desirable since a homicide is murder if it is committed knowingly. The element of "recklessness" requires personal awareness of the risk and a conscious disregard of it, while the term "knowingly" requires the actor to be "practically certain that his conduct will cause such a result." These two factors codify degrees of culpability for homicide: the more stringent one of "knowingly" is more suitable for murder because of its greater sanction; "recklessness" killings are properly made manslaughter.
[Knowlton, Comments Upon the New Jersey Penal Code, 32 Rutgers L.Rev. 1, 9 (1979) (footnotes omitted.)]
It appears to be the case that between the original enactment of the Code in September of 1978, and its effective date in September 1979, training sessions led observers to conclude that there was too great a gap in culpability between the crimes of murder and manslaughter. Accordingly, in the consensus amendments of 1979, section 2C:11-4 was amended to divide manslaughter into two categories, aggravated manslaughter and reckless manslaughter, depending on the presence of circumstances manifesting extreme indifference to human life. L. 1979, c. 178 (codified at N.J.S.A. 2C:11-4(a)). At the same time, the definition of murder was amended to add the present language that criminal homicide may constitute murder when the actor purposely or knowingly "causes death or serious bodily injury resulting in death." L. 1979, c. 178 (codified at N.J.S.A. 2C:11-3(a) (emphasis added). What the Legislature *136 did was take two of Sir James Stephen's categories of murder that were second-degree murder if not accompanied by willful, deliberate, premediated conduct, and put one of them, the serious bodily injury provision, under the definition of murder and the extreme indifference homicide under a higher degree of aggravated manslaughter, a first-degree offense.
As introduced, our Code made no provision for capital punishment. Hence, the only significance of the additions was, as the Senate Committee's Statement stated:
By committee amendments, the concept of murder under 2C:11-3 was expanded to include, in addition to those who "knowingly" or "purposely" cause [death], those individuals who "purposely" or "knowingly" cause serious bodily injury which results in death.
By committee amendments, a section 21A amending 2C:11-4 (Manslaughter) was added to the bill. The purpose of the amendment is to create a new offense of "aggravated manslaughter" when the accused causes death under circumstances manifesting extreme indifference to human life.
[Senate Judiciary Committee, Statement to Senate No. 3203 (1979), reprinted in 7 Crim. Just. Q. 65, 67.]
At the same time, the bill added language to the definition of murder to "insure that the specific higher penalties provided in 2C:11-3(b), rather than the presumptive sentences found in Chapter 44 of the Code, [were] applicable to the offense of murder." Id. As enacted, that sentence was thirty years for murder with fifteen years without possibility of parole. One convicted of aggravated manslaughter was then guilty of a first-degree crime, subject to a ten- to twenty-year term of imprisonment with a possible ten year period of parole ineligibility.[1]
When the Legislature restored capital punishment in 1982, it did so by a brief incorporation of the definitions of criminal homicides that were classified as murder and by the additional *137 requirement that the act be conducted by one's own hand or that of a hired hand. N.J.S.A. 2C:11-3(c).
At this point we must ask whether the Legislature would intend to preserve a form of unintended murder where the actor's only intent is to inflict "serious bodily injury" upon the victim. I think not.
II
To begin with, N.J.S.A. 2C:11-2(a) defines criminal homicide only in terms of death. It states that criminal homicide is committed if the actor "purposely, knowingly, recklessly or, under the circumstances set forth in section 2C:11-5, [death by auto] causes the death of another human being." The actor's state of mind is related to the death. It is clear that this all-inclusive definition of criminal homicide does not embrace that which is arguably set forth in 2C:11-3(a)(1) or (2) that is, the definition of criminal homicide does not include the situation where the actor purposely or knowingly caused serious bodily injury that happened to result in death. Such a person did not purposely cause death (it was a happenstance); such a person did not knowingly cause death (it was a happenstance). We therefore must start out with a recognition that to interpret the Code that intentionally or knowingly causing serious bodily injury that happens to result in death is murder, albeit non-capital murder, is a conclusion that conflicts with the basic definition of criminal homicide found in 2C:11-2.
We next consider the definition of "serious bodily injury." Serious bodily injury is "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). See State v. Sloane, 111 N.J. 293 (1988) (stab wound that pierces arm could cause serious bodily injury). If an actor has caused a "protracted loss or impairment of the function of any bodily member," it is an instance of terrible criminal conduct but not one *138 that necessarily threatens death. We must ask the question whether the Legislature could possibly have intended that someone who breaks another person's arm intentionally should be executed because death happens to result, and we answer "no." That is our basic constitutional conclusion.[2]
The further question is could the Legislature have intended that such an act be non-capital murder with thirty years in prison without parole. Recognizing that the Legislature can more seriously penalize that which we might think less culpable than that which we might think more culpable, we must accept the notion that there is some common understanding about culpability, even without the statute, that entitles us to divine legislative intent.
My conclusion then is that the lesser penalty that the Legislature has prescribed for aggravated manslaughter (which is more culpable than this putative non-capital murder), suggests the Legislature did not mean to impose the harsher penalty for this less culpable act. I further conclude that if the Legislature defined as "aggravated assault" precisely the same act (purposely or knowingly causing serious bodily injury to another) as this non-capital murder, except for the happenstance that in the former death did not result whereas in the latter it did, making the former (aggravated assault) a second degree crime (five to ten years) and the latter (non-capital murder) a mandatory thirty year prison term, we are ascribing an almost outrageous intent on the part of the Legislature. See N.J.S.A. 2C:12-1(b)(1) (aggravated assault).
*139 Plainly read, the crime of non-capital murder would require only that the actor purposely or knowingly inflict serious bodily injury, in terms of the actor's intent and the actor's conduct. The result death if the statute is so read, is simply a coincidence, albeit one that is not too remote as to have "a just bearing * * * on the gravity of his offense." Supra, at 138 n. 2 (quoting N.J.S.A. 2C:2-3(b)). So construed, the provision would enact a "much discredited [Holmesian] theory of liability." Atiyah, The Legacy of Holmes Through English Eyes in Holmes and the Common Law: A Century Later, 27, 30 (1983).
Contrast this with aggravated manslaughter, 2C:11-4(a). There the actor "recklessly causes death under circumstances manifesting extreme indifference to human life." One must find that that actor, realizing death was rather probable, and fully aware of that, nevertheless committed the act with a state of mind that said "I couldn't care less, I don't care at all, I don't care in the least bit if this person dies, even though I know that my act possesses a high degree of probability of causing that person's death." The conduct of the actor could be as broad as the scope of human behavior, it could include inflicting injuries, it could include throwing someone out of an airplane or fracturing someone's arm. All of these things go into "serious bodily injury," but it would have to include above all of that the required state of mind that is almost, but not quite, the same as purposely causing death or knowingly causing death, i.e., conduct that manifests extreme indifference to the value of human life.[3] To me it is a much more culpable act, certainly more so than simply breaking the victim's arm. Yet aggravated manslaughter carries a sentence of ten to thirty years with *140 a possible parole bar of fifteen years, while the non-capital murder requires a mandatory thirty-year prison term. This much more culpable act of extreme indifference resulting in death brings on a much less serious penalty (possible fifteen years mandatory) than the less culpable act of inflicting serious injury that results in death (non-capital murder thirty years mandatory). The Legislature may do it; I would not say it is necessarily unconstitutional, but given our common culture I find it hard to believe the Legislature would have intended it. Finally, the legislative history of the death penalty act suggests to me that the Legislature never intended that the mere infliction of serious bodily injury without knowledge or purpose that death would result could be murder.
The Legislature under 2C:11-3(a) made every murder by one's own conduct eligible for the death penalty if accompanied by aggravating factors. In the sponsor's view that incorporation meant "first degree murder, willful premeditated murder." Capital Punishment Act: Hearing on S. 112 Before the Senate Judiciary Committee 1 (1982) [hereinafter Committee Hearing] (statement of Sen. Russo). See also Senate Judiciary Committee Statement to S-112 (1982) ("only a person who actually commits an intentional murder * * * would stand in jeopardy of the death penalty."). Although these are pre-Code concepts, they reinforce the belief that the Legislature did not intend that the "serious bodily injury" feature of 2C:11-3 murder be devoid of relationship to death. Recall that the feature's function at common law was as an evidentiary device to furnish the proof of malice aforethought that distinguished murder. Such conduct helped the jury to understand the actor's state of mind, his culpability for the death, not serve as an independent form of homicide.
Based on all of this I conclude that the insertion of the language "or serious bodily injury resulting in death" in 2C:11-3(a)(1) and (2) is necessarily subject to the internal consistency of the Code and the graduated punishment contemplated there-by. Hence, I would conclude that in those cases in which the *141 infliction of serious bodily injury on a victim is a probative element in the crime of murder under N.J.S.A. 2C:11-3(a)(1) or (2), the jury must be charged that the defendant must have had as well the purpose or knowledge (in the Code's sense of practical certainty), N.J.S.A. 2C:2-2(b)(2); see infra at 141-142, that death would result.
III
I am supported in my conclusion by the internal structure of the Code as well. When the Legislature transposed into the Code the previous common-law concepts of second-degree murder, it made these concepts subject to the Code's general framework.
For purposes of this analysis, I shall limit my discussion to knowing murder, although the principles would be similar in the case of purposeful murder. It may be that the culpable mental state was intended to apply only to the intent to inflict the blow. A plain English reading suggests that. But the mental-state provisions of the Code are complex indeed. The Code provides that no person can be guilty of an offense "unless he acted purposely, knowingly, recklessly, or negligently as the law may require, with respect to each material element of the offense." N.J.S.A. 2C:2-2(a). The material elements of an offense vary in that they may involve (1) conduct per se, (2) the attendant circumstances of conduct, or (3) the result of conduct. The Code defines the culpability status for each. Moreover, "[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears." N.J.S.A. 2C:2-2(c)(1) (emphasis added).[4] That the result of the injury be *142 death is clearly a material element of the crime of murder. Hence, under N.J.S.A. 2C:2-2(c)(1), it would follow that knowledge that death will follow is the requisite mental state for murder unless "a contrary purpose plainly appears." Remember that knowledge is not purpose. The Code is quite specific about how knowledge is to apply to the various elements of an offense. In fact, the Code distinguishes between the state of knowledge required for (1) conduct, (2) attendant circumstances, and (3) the result of conduct.
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or if he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. * * *
[N.J.S.A. 2C:2-2(b)(2) (emphasis added).]
Under this interpretation, if an actor commits serious bodily injury that results in death, he would be convicted of murder only if he is adjudged to have been practically certain that death would result from his conduct.
The Code, in this way, is self-correcting with respect to the anomaly created by the legislative bifurcation of the two forms of common law second-degree murder, i.e., "serious bodily injury" and "extreme indifference" homicide.
The precise delineation of these mental states of criminal culpability, each drawn from the Model Penal Code and each defined in N.J.S.A. 2C:2-2(b), represented an effort, as one of the framers of the Code put it, "to achieve greater individual justice through a closer relation between guilt and culpability, requiring workable definitions of the various culpability factors. These factors must be related precisely to each element of an offense, defense, or mitigation, and all unnecessary limitations upon individual culpability should be eliminated." Knowlton, supra, 32 Rutgers L.Rev. at 2 (footnote omitted).
*143 People act "purposely" with respect to a result if their conscious objective is to cause such a result. People act "knowingly" with respect to the result if it is not their conscious objective, yet they are practically certain or aware of a high probability that their conduct will cause the result. * * *
People act "knowingly" with respect to a result if they are nearly certain or aware of a high probability that their conduct will cause the result. If they are aware only of a substantial risk, they act "recklessly" with respect to the result. The narrow distinction lies in the awareness of the certainty of the risk "high probability" versus "substantial risk." The broader distinction is considerably more significant. Purposeful and knowing conduct is viewed as "wilful," while reckless conduct or less is at most "careless."
[Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 818-19 (1980) (footnotes omitted).]
The Code, by closely tying the concepts of knowledge or purpose with respect to the result of a homicidal act, equates this conduct with "willful" conduct, which is the conduct that Senator Russo described as one of the characteristics of capital homicide. Our job in construing statutes is to make sense of the whole of a statute insofar as possible and not to construe individual sections in isolation. See State v. Valentin, 105 N.J. 14, 20-21 (1987). We make better sense of the whole of the homicide provisions of the Code by not creating another form of murder.
In sum, I conclude that because it is highly unlikely that the Legislature would have intended the anomalous construction of the Code that would contemplate two forms of murder, one capital and one non-capital, and because I believe that the Legislature would have intended that the capital murder provisions of the Code be construed to be in accordance with constitutional requirement, I would hold that for an accused to be found guilty of murder under 2C:11-3(a)(1) or (2), the offense that will subject the accused to capital punishment, he must be adjudged by a jury to have had either the conscious object to cause the death of the victim or to have been practically certain or aware of a high probability that the conduct would cause death.
In murder cases in which the infliction of serious bodily injury is a probative factor, the trial court should charge the *144 jury that whatever the conduct may be that caused death, the jury must find that the defendant have the requisite mental state under the Code either purpose (conscious object or design) or knowledge (practical certainty) that death will result. In many cases the intent to inflict serious bodily injury, if not demonstrative of such a state of mind concerning the death, will demonstrate that recklessness with respect to the consequence of death manifesting the extreme indifference characteristic of aggravated manslaughter. See Wechsler & Michael, supra, 37 Colum. L. Rev. at 709-10.
Justice GARIBALDI joins in this opinion.
HANDLER, J., concurring in part and dissenting in part.
The Court today reverses defendant's capital murder conviction and death sentence. In doing so, the Court determines that a defendant can be considered death-eligible only if he murdered with the intent to kill, and only if he committed the murder by his own conduct. This narrowing of the scope of the class of death-eligible murders is a significant step toward remedying the constitutional infirmities that burden the capital murder-death penalty statute. Of corollary significance, the Court, in departing as it does from the United States Supreme Court's decision in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), recognizes the unreliability and inadequacy of federal precedent in the development of capital-murder jurisprudence.
I subscribe to the Court's reasoning on these essential points. Moreover, while I concur in the judgment of the Court, I would also reverse because the New Jersey capital murder-death penalty statute is unconstitutional and invalid, both as enacted and as applied. See, e.g., State v. Ramseur, 106 N.J. 123, 343 (1987) (Handler, J., dissenting). I feel constrained to maintain and repeat this position because of the evolving and unsettled nature of the law governing these unique capital-murder prosecutions. *145 See, e.g., State v. Rose, 112 N.J. 454 (1988) (Handler, J., dissenting); State v. Bey (II), 112 N.J. 123 (1988) (Handler, J., dissenting).
I write separately in this case to address two continuing troublesome issues, the status of "knowing" murder as a capital offense and the role of prosecutorial discretion in capital-murder prosecutions. The resolution of these two issues requires, I submit, the exclusion of "knowing" murder, one that lacks intent to kill, from the class of death-eligible murders; it demands also uniform, statewide standards to govern the prosecutorial discretion in determining whether a case should properly be prosecuted as a capital offense.
I.
The Court now holds, as a matter of state constitutional law, that the intent to kill is an essential element of capital murder, distinguishing capital murder from other murders. Moreover, the imposition of a death penalty for intentional infliction of serious bodily injury that results in death is disproportionate. The majority now rules that this violates the State Constitution. Ante at 88-89. I agree.
In the context of this case, this important holding does not rest on the sufficiency or insufficiency of the evidence of intentional murder. As the Court aptly notes, the State's evidence in this case was, arguably, sufficient to support a jury's determination that the defendant murdered the decedent with the intent to kill. We cannot, however, have confidence in that interpretation of the jury's verdict. The confusion in the prosecution of this case about what type of conduct could constitute purposeful or knowing murder and what might constitute aggravated manslaughter has rendered the jury's verdict suspect. The inclusion of the serious bodily harm provision in the definition of capital murder and in the charge to the jury may have influenced the jury's deliberations in this case because the evidence of defendant's intentions was inconclusive *146 and because this definition may have de-emphasized the jury's consideration of a non-capital offense, aggravated manslaughter.
I also concur in the majority's determination to find that the "own conduct" requirement must be met by showing that "the defendant actively and directly participated in the homicidal act." Ante at 97. I believe that the interpretation clearly reflects the Legislature's intent to narrow the class of death-eligible murderers by excluding those who would, pre-Code, have been considered accomplices. I commend this narrowing of the class of death-eligible murders and the ruling that this determination must be made by the jury at the guilt phase of its deliberations. As I have repeatedly stressed, the determination of whether the particular homicide falls within the class of death-eligible murders must be made a constituent part of the process in the determination of guilt, and it must be done apart from and before the jury is thereafter directed to consider whether the death sentence is appropriate for the particular defendant. See State v. Ramseur, supra, 106 N.J. at 387-94 (Handler, J., dissenting); State v. Bey (II), supra, 112 N.J. at 215-216 (Handler, J., dissenting).
I must, however, stress what may be more than a semantical difference; unlike the majority, I view the own-conduct requirement as a material element of capital murder rather than as a mere "triggering device." Ante at 99 (quoting State v. Moore, 207 N.J. Super. 561, 576 (Law Div. 1985)). The Court, in adopting the reasoning of Moore, determines that the commission of a homicidal act by the defendant's own conduct is not an element of the offense of murder. There is, however, nothing in the language of N.J.S.A. 2C:11-3 suggesting that the own-conduct requirement is anything less than a material element of the offense of capital murder. This requirement assuredly satisfies the Code's understanding of "a material element" of a crime as a requirement that relates solely to the crime itself, N.J.S.A. 2C:1-14(i), and includes "conduct" that is a part of the "definition of the offense" and also "establishes the required *147 kind of culpability," N.J.S.A. 2C:1-14(h)(1)(a), (b). Since a defendant cannot be convicted of "capital murder" unless it is established that the homicide was by his "own conduct," there is no escape from the conclusion that this requirement is a "material element" of the crime of capital murder. Hence, the "own-conduct" aspect of capital murder is no more, no less a material element of capital murder than the requirements involving "purpose" or "knowledge." What follows from this is that the jury must understand clearly that the own-conduct requirement, as a material element of capital murder, is subject to the State's continuing burden to prove each and every element of the charged crime beyond a reasonable doubt.
The narrowing of the class of death-eligible murders thus achieved by the Court is both essential and constructive. It will go far toward focusing the aim of the capital murder-death penalty statute on the truly egregious murderer, and it will significantly decrease the risk of an arbitrary and disproportionate imposition of the death penalty. Unfortunately, by failing to exclude "knowing" murder from the class of death-eligible murders, the majority fails to cohere the implications of its well-reasoned holding that the culpable state of mind of "intent to kill" is constitutionally indispensable to establish capital murder. In my opinion, the implication of the majority's decision that the State Constitution requires a showing of "intent to kill" for capital murder is that murders committed only with knowledge that death is "practically certain" to result from the acts of the defendant cannot rise to the level of capital murder. Such murders do not, in my view, reflect the greatest level of culpability that would justify the greatest possible penal sanction, namely, death.
This constitutional perception of capital murder would be consistent with New Jersey's prior capital-murder statute in which the death penalty was not authorized for crimes less severe than first-degree murder. See State v. Ramseur, supra, 106 N.J. at 387-90 (Handler, J., dissenting). Under the former statute, death-eligible murders were those that were *148 "perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or [were] committed in perpetrating or attempting to perpetrate certain felonies." See L. 1965, c. 212, § 1; R.S. 2:138-2; L. 1917, c. 238, § 1, p. 801 (1924 Supp. § 52-107); L. 1898, c. 235, § 107, p. 824 (C.S. p. 1780, § 107). The former statute's focus on intentional murder required that with the exception of murders during the course of certain felonies and the murder of a law enforcement officer, the State was required to prove three mental operations in order to establish first-degree murder: premeditation, deliberation, and willful execution of the plan. See State v. Anderson, 35 N.J. 472, 496-97 (1961). All other murder was presumptively second degree murder a non-capital offense regardless of the circumstances of the murder. Indeed, under our prior statute even most first-degree murder defendants were not subjected to a death sentence, but could under prevailing practice exercise a non vult plea. See discussion infra at 154.
By defining first-degree murder in terms of culpability as manifested through mental operations demonstrating pre-meditation or intent, the former statute expressed one of the goals of the new code: "greater individual justice through a closer relation between guilt and culpability ..." Knowlton, Comments Upon The New Jersey Penal Code, 32 Rutgers L.Rev. 1, 2 (1979). The relationship between culpability, guilt, and the appropriate level of punishment is squarely recognized by this Court. Indeed, the majority explicitly endorses the Supreme Court's statement that "[d]eeply ingrained in our legal tradition is the idea that the more purposeful the conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." Tison v. Arizona, supra, 481 U.S. at 156, 107 S.Ct. 1687, 95 L.Ed.2d at 143. Ante at 77. This Court has also stated that "[o]ur system of criminal laws is predicated usually on the imposition of punishment based on the defendant's intent. Indeed, our Code's ranking of crimes by degree places those crimes committed with intentional conduct *149 as the highest degree of crime, for which the defendant is most severely punished." State v. Ramseur, supra, 106 N.J. at 207-08. Ante at 77. The legislature itself effectuated this principle through adoption of the separate levels of culpability described in N.J.S.A. 2C:2-2(b). In applying this principle to criminal homicide, "[p]urposeful murder, knowing murder, aggravated manslaughter and reckless manslaughter are criminal homicides that lie on a descending scale of culpability." State v. Grunow, 199 N.J. Super. 241, 250 (App.Div. 1975), aff'd, 102 N.J. 133 (1986). These considerations all point to one basic principle: the severest sanctions should be reserved for actors exhibiting the most culpable mental states.
Although "purposely" and "knowing" are often yoked together relative to other culpability states, they nevertheless are two different measures of criminal intent. In the context of criminal homicide, "purposeful" commission of murder, N.J.S.A. 2C:2-2(b)(1), is the most culpable form, closely corresponding to the former mens rea requirement of premeditation, i.e., intent to kill. Knowing murder, however, a less culpable state than purposeful murder, contains no requirement of premeditation or willfulness and deliberation, the mental states or qualities that historically have justified the ultimate sanction of the death penalty.
The Court, in refusing to winnow out knowledge from capital murder, in effect, homogenizes distinctly different states of criminal culpability. While, in terms of culpability, the Court's result seemingly equates only purpose and knowledge, it fails to remove recklessness from the equation. Thus, in weighing culpability, what is disquieting about the Court's rejection of any constitutional distinction between purpose and knowledge is its failure to understand that it thereby obliterates the distinction between knowledge and recklessness.
Further, in terms of criminal culpability, the Court's determination permits recklessness to be equated with purpose, which is the critical characteristic of the most serious form of murder. *150 This is clearly what the Supreme Court did in Tison when it adopted this philosophy, viz:
[T]he reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.
[481 U.S. at 157-158, 107 S.Ct. at 1688, 95 L.Ed.2d at 144.]
Ostensibly the Court repudiates this philosophy when it states disapprovingly that "as a matter of federal proportionality principles ... capital punishment may be imposed on one who ... can be characterized as `recklessly indifferent to human life.'" Ante at 75. Nevertheless, by including "knowing" murder in the class of capital murder, the Court does not truly separate itself from the "federal proportionality principles" that it professes to reject.
There was not any genuine disagreement with the observation made recently, that "[t]he distinction between knowledge and recklessness, between `practical certainty' of a result and `conscious disregard' of `a substantial and unjustifiable risk' of a result, is a subtle one at best," and that "the distinction between `knowing' murder and `aggravated manslaughter' turns in close cases ... on the difference between `practical certainty' that one is inflicting injury with a substantial risk of death and a conscious disregard of a substantial risk of death that manifests `extreme indifference to the value of human life.'" State v. Rose, supra, 112 N.J. at 562-563 (Handler, J., dissenting). Because the distinction between knowledge and recklessness is so nebulous, I do not believe it is possible to include a non-intentional but knowing murder as capital murder without creating an intolerable risk that reckless murder will also become capital murder.
Aggravated manslaughter now exists as a lesser-included offense of knowing murder. See State v. Crisantos (Arriagas), 102 N.J. 265 (1986). Knowing murder itself can incorporate a degree of "indifference" that can, on a given state of facts, serve to make aggravated manslaughter the functional *151 equivalent of knowing murder. See State v. Palmer, 211 N.J. Super. 349, 352 (App. Div. 1986) (endorsing a definition of the element of aggravated manslaughter of "circumstances manifesting extreme indifference" as conduct "practically certain to kill any one who might happen to be in the way." (Emphasis added)). Conversely, on identical evidence, aggravated manslaughter can encompass a quality of indifference that could transform knowing murder into aggravated manslaughter. See State v. Rose, supra, 112 N.J. at 562-567 (Handler, J., dissenting).
In stressing the similarities between intentional murder and aggravated manslaughter, Justice O'Hern in his concurring opinion observes that the latter requires "[t]hat [the] actor, realizing death was rather probable, and fully aware of that, nevertheless committed the act with a state of mind that said `I couldn't care less, I don't care at all, I don't care in the least bit if this person dies, even though I know that my act possesses a high degree of probability of causing that person's death.'" Ante at 139. The Justice goes on to say: "[t]he conduct of the actor could be as broad as the scope of human behavior" but, to constitute capital murder that conduct "would have to include" a "state of mind that is almost, but not quite, the same as purposely causing death or knowingly causing death...." (emphasis added). Ibid. The "almost, but not quite the same" test might suffice and be acceptable to distinguish murder from manslaughter when the penal consequences entail only incarceration. That test, however, cannot, in my opinion, be used to determine degrees of criminal culpability to justify death as the just penalty for a homicide.
These offenses, knowing murder and aggravated manslaughter, are couched in terms that in any given case can render the two indistinguishable. See New Jersey Penal Code, Volume II: Commentary, Final Report of the New Jersey Criminal Law Revision Commission, 1971 (quoted in Cannel, New Jersey Criminal Code Annotated (1987), at 245-46). Hence, the inclusion of knowing murder as a capital offense creates a *152 system that will of necessity function arbitrarily and irrationally because it cannot reliably or consistently exclude homicides that may constitute only aggravated manslaughter and, in terms of underlying criminal culpability, are not truly different from aggravated manslaughter.
Moreover, it does not appear that the inclusion of knowing murder as a form of capital murder was itself expressly or impliedly intended by the Legislature. I have noted the omission in the enactment of the capital murder-death penalty statute of any explanation of why aggravated manslaughter is now an offense distinguishable from knowing murder. State v. Rose, supra, 112 N.J. at 563 (Handler, J., dissenting). Further, support for the conclusion that knowing murder was not intended to constitute capital murder can be derived from the statement of the sponsor of the capital murder legislation that this State's capital murder statute is "not as broad" as statutes in some other states, in part because defendants are death-eligible only if "found guilty ... of first-degree murder, willful, premeditated murder," a degree of murder closely corresponding only with a "purposeful" state of mind. Capital Punishment Act: Hearing on S. 112 Before the Senate Judiciary Committee (1982) at 1.
In sum, as noted, the Court rejects Tison v. Arizona, supra, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127, ante at 75-77 in which the Supreme Court in effect ruled that it was not essential that the State show intent to kill to obtain a conviction for capital murder. Id. at 155, 107 S.Ct. at 1687, 95 L.Ed.2d at 144. Indeed, according to the Supreme Court, it was sufficient to show that a defendant participate in a murder only with the knowledge that there was a risk of death. Ibid. The Court, in accepting a death-penalty scheme that includes non-intentional but knowing murder as a capital murder, thus indirectly endorses the federal philosophy of capital-murder culpability that it purports to repudiate, a philosophy that does not blanche at the inclusion of reckless homicide as a capital offense. In its prior decision, Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 *153 L.Ed.2d 1140 (1982), the Supreme Court insisted that capital murder required minimally an intent to kill, that this constituted the "highly culpable mental state" required to convert ordinary murder into capital murder. I believe therefore that this Court, in approving Enmund and disapproving Tison, should acknowledge the sound conceptual and policy basis for a legal understanding of capital murder that requires the intent to kill.
I conclude, consistent with the underlying premises of the majority opinion and with New Jersey's capital murder traditions that as a matter of state constitutional doctrine "knowing" murder should not be included in the class of the death-eligible murders.
II.
A significant issue in this case, not addressed by the majority, involves the twin concerns of unfettered prosecutorial discretion and disproportionality of sentence. Most recently I commented on this in my dissenting opinion in State v. Koedatich, 112 N.J. 225, 265-271 (1988). These concerns are closely related to the overly broad death-eligible class of murders attributable to both the lack of a narrow definition of this class and to the problematic application of aggravating factors. The absence of uniform standards governing prosecutorial discretion heightens the uncertainty and inconsistency in the administration of the capital murder statute. Derivatively, it loosens the guidelines, complicates immeasurably the discretionary responsibilities of the jury, and inevitably compounds the risk of arbitrary and capricious death sentences.
This uncertainty and arbitrariness is exacerbated by unstructured plea-bargaining practices. Here, three young men with equal culpability participated in the murder of Paul Matusz. Two of them escaped trial and received custodial terms by pleading guilty to some of the charges brought against them. The defendant did not; because of this, he is the only one who *154 may have to pay for this shared crime with his life. This demonstrates that the availability of guilty pleas on a random basis and the lack of uniform standards to control prosecutorial discretion engender an intolerable degree of sentence disproportionality.
A.
What occurred in this case the plea to lesser, non-capital offenses by co-defendants is reminiscent of the practice found unconstitutional under our prior capital murder statute. The former New Jersey murder statute was designed so that a plea of non vult removed the death penalty from the range of sentences that could be imposed on the defendant. While this statute was in effect, however, the Supreme Court asserted the unconstitutionality of a federal statute that "needlessly encouraged" guilty pleas or jury waivers by forcing defendants to choose between pleading guilty, thus assuring nothing worse than imprisonment, or asserting their right to contest guilt or the degree of guilt, thereby incurring the possibility of the death penalty. See United States v. Jackson, 390 U.S. 570, 583, 88 S.Ct. 1209, 1217, 20 L.Ed.2d 138, 148 (1968).
We were slow to recognize the constitutional infirmity of this practice. In 1968, in State v. Forcella, 52 N.J. 263, 274-81 (subsequent history omitted), we ruled that neither the death penalty nor the non vult plea provision of our statute was unconstitutional. However, three years later in Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859, reh'g den., 404 U.S. 876, 92 S.Ct. 31, 30 L.Ed.2d 125 (1971), the Supreme Court struck down New Jersey's death penalty in a summary disposition that cited Jackson. This Court then declared the New Jersey death penalty unconstitutional, finding that it fell within the area that Jackson had found unconstitutional (although the non vult plea was continued after 1972, defendants were simply sentenced to life imprisonment). See State v. Funicello, 60 N.J. 60, 67-68 (per curiam), cert. den. *155 sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972).
Funicello recognized that Jackson had been narrowed by the Supreme Court's intervening decision in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 749 (1970). Brady held that such "dilemma" statutes did not violate a defendant's fifth or sixth amendment rights if the non vult or guilty plea was intelligently and voluntarily made, even if the defendant faced a possible death penalty by contesting guilt. See also North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162, 171-72 (1970) (upholding statute in which defendant received a lesser penalty in exchange for a guilty plea). The Brady majority did not say whether death could be so significant a motivating factor that the fifth amendment was violated, but indicated that the defendant bore a very heavy burden. See Brady, 397 U.S. at 747, 90 S.Ct. at 1468, 25 L.Ed.2d at 755, approving and citing, from Jackson, supra, Laboy v. New Jersey, 266 F. Supp. 581 (D.N.J. 1967) (guilty plea held voluntary despite the fact that defendant was greatly upset by prospect of the death penalty).
The federal court's decision in Brady does not limit the protections granted by State constitutional sources. Some states have recognized that the prosecutor's use of the power to bargain for guilty pleas in capital murder prosecutions can lead to arbitrary and unjustifiable results. See, e.g., Commonwealth v. Colon-Curz, 393 Mass. 150, 163-64, 470 N.E.2d 116, 124 (1984) (state's newly enacted death penalty law violated the state constitution because the death penalty could only be imposed after a jury trial, thus coercing guilty pleas and impermissibly violating a defendants' rights to demand a jury trial and against self-incrimination); State v. Frampton, 95 Wash.2d 469, 627 P.2d 922 (1981) (where, pursuant to statute, the death penalty is imposed upon conviction following a plea of not guilty, but is not imposed when there is a plea of guilty, that statute is unconstitutional); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968) (death penalty scheme unconstitutional because *156 it impermissibly burdened the defendant's right to trial by jury since death penalty could be imposed as a result of jury verdict of guilty of rape).
Following the invalidation of the death penalty provisions of the former statute, this Court dealt with the issue of whether the former statute still unnecessarily coerced non vult pleas from defendants guilty only of manslaughter. In State v. Corbitt, 74 N.J. 379 (1977), aff'd, Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978), the petitioner unsuccessfully argued, on the basis of Jackson, that any system under which the defendant received a lesser penalty in exchange for a guilty plea was unconstitutional. This Court noted that "[t]he criminal process ... is replete with situations requiring `the making of difficult judgments' as to which course to follow," Corbitt, supra, 74 N.J. at 398 (quoting McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971)), and that such dilemmas were never thought to invade constitutional rights.
Significantly, however, the Court in Corbitt was considerably less sanguine about the dilemma when one choice involved the death penalty. The Court concluded:
Finally, it is our considered view that Jackson today is authority only for a situation where a defendant faces the prospect of a possible death sentence if convicted as against the alternative of merely a prison term if he pleads guilty. We have hereinabove stressed the language of Jackson emphasizing the awful pressure exerted upon a defendant whose choice of a course of action may mean his death. At the time of Jackson, the Court was undoubtedly already sensitive to the considerations which were to lead to the later broad invalidation of death penalties in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed2d 346 (1972). Cf. Whitherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 [1968].
* * * * * * * *
In summary of the foregoing, we conclude: (1) the authority of Jackson is confined to the case of a choice between trial and plea of guilty when a possible consequence of the former, and only of the former, is the death penalty; (2) alternatively, if the authority of Jackson goes beyond situation (1), any encouragement or inducement of a defendant to plea non vult under our statute and thereby waive his right to trial is not the result of a needless or unnecessary procedural device but a highly useful and desirable one, and the encouragement *157 is therefore not an impermissible infringement of defendant's Fifth Amendment rights.
[74 N.J. at 399-400.]
Although this Court was interpreting and limiting Jackson, supra, it ignored Brady's subsequent narrowing of Jackson in the death penalty context. On appeal, the United States Supreme Court, in a 6-3 decision, affirmed Corbitt, noting that:
[a]lthough we need not agree with the New Jersey court that the Jackson rationale is limited to those cases where a plea avoids any possibility of the death penalty ... it is a material fact that under the New Jersey law the maximum penalty for murder is life imprisonment, not death.
[Corbitt v. New Jersey, supra, at 217, 99 S.Ct. at 496, 58 L.Ed.2d at 473.]
The undue pressure in the context of a capital case involving the death penalty that the Court acknowledged and criticized in Corbitt was present in this case. It was indeed used by the prosecutor to obtain the guilty pleas of the co-defendants. Facing the death penalty in a jury trial, they assured themselves of custodial sentences by pleading guilty. However, the vice is not that the guilty pleas of these co-defendants were unconstitutionally coerced, but rather that the sentences that have emerged from this prosecution are so unequal and disparate: the plea bargain results directly in custodial terms for the co-defendants and indirectly in the death sentence for the defendant. This practice is of deep concern because there are no standards whatsoever to guide the prosecutor, and thus the courts, in determining whether what occurred here is fair, consistent, and rational. In the absence of guided discretion, the result strongly bespeaks of intolerable disproportionality.
B.
This case is further illustrative of the propensity toward disproportionality that inheres in uncontrolled prosecutorial discretion. This concern increases in this case because of the borderline nature of the evidence supporting a capital murder prosecution. The perception of disproportionality is strengthened by the growing empirical support from statistical evidence *158 that the death penalty is being administered in an arbitrary and capricious manner.
In several capital murder appeals, the Public Defender has brought to our attention statistical evidence gathered in analyzing the administration of the capital murder-death penalty statute. This study, entitled "The Reimposition of Capital Punishment in New Jersey: Homicide Cases from 1982-1986," by Leigh Bienen, Assistant Deputy Public Defender, and Neil Alan Wiener, Senior Research Associate at the Sellin Center for Studies in Criminology and Criminal Law at the University of Pennsylvania (hereinafter Study or Report), was acknowledged by the Court in State v. Koedatich, supra, 112 N.J. at 256. The Study is instructive. Among other things, it points out a clear differential in prosecutorial practices in our various counties. According to the Public Defender's Study, the county-to-county differences suggest that a "death-possible" case, one in which at least one statutory aggravating factor could have been alleged, was much more likely to be prosecuted as death-eligible in certain counties than in others.[1] Of particular relevance to this case is the suggestion that the county-to-county disparity also relates to plea-bargaining practices.[2] This correlation, if true, between pursuing prosecution aggressively while offering few plea bargains, and prosecuting relatively few death-possible homicides while settling many by means of a plea offer, suggests that homicides are being prosecuted not solely on the basis of the nature of the crime and the defendant, but also on the basis of *159 political or budgetary or moral considerations that vary from county to county. See discussion, infra 166. In the absence of clear uniform standards governing capital murder prosecutions, such unchecked discretion will continue to lead to unacceptable and anomalous results.
The Public Defender's Study is an indication that the absence of controlled prosecutorial discretion poses real, not imaginary, risks. The Study provides us at least initially with a reasonably objective framework within which to think about and confront the complex issue of uncontrolled prosecutorial discretion as an aspect of proportionality.[3] The Study may have shortcomings, but the data, particularly with reference to county-to-county *160 discrepancies, point to the need for controls on prosecutorial discretion. See State v. Koedatich, supra, 112 N.J. at 269-270 (Handler, J., dissenting).
The Study uses a data base of 703 homicides;[4] of the 703, prosecutors served a notice of aggravating factors
in cases involving 131 defendants (18.6 percent of the 703), for 94 of whom ... the case went to trial as a capital case before a judge or jury (the factor was neither dismissed by the judge nor withdrawn by the prosecutor). Of these 94 cases, 69 (73.4 percent) resulted in a capital conviction for death eligible murder followed by a penalty phase trial before a judge or jury. Of these 69 cases, 25 (36.2 percent) resulted in the death sentence being imposed. Overall, of the 703 homicide cases, 18.6 percent [131 cases] were recommended for the death penalty by the prosecutors serving a formal notice of statutory aggravating factors (cases were designated death-eligible), 13.4 percent (94 cases) resulted in a capital trial, 9.8 percent (69 cases) went to penalty phase ... and 3.6 percent ... resulted in the death sentence being imposed.
Study, Interim Report Part I, "Characteristics of the New Jersey Homicide Cases" at 5. The Public Defender's data also purport to show, however, that 404 of the 703 cases (57.5 percent) were death-possible because there was at least one statutory aggravating factor that could have been alleged. Only 131 of the *161 404 death-possible cases (32.4 percent) were charged as capital murder prosecutions.[5]
Thus, according to this data, there are 273 cases in which the prosecutor had a factual basis for seeking the death penalty but declined to do so. The Study suggests that one factor that correlates with the decision to prosecute is the policy of the prosecutor of the county in which the prosecution is to occur; these policies differ from county to county. Another factor is the race of various classes of victims and defendants. See discussion infra at 163-164.
The Report does suggest that county prosecutors have adopted differing philosophies; as a result, there are no uniform prosecutorial standards. The lack of prosecutorial uniformity in the absence of uniform statewide standards should not be surprising. The issue was discussed at length in State v. Willie E. Smith, 202 N.J. Super. 578 (Law Div. 1985), in which the court specifically challenged the county prosecutor to explain the basis on which discretionary decisions were made to prosecute capital cases. The prosecutor's explanation was less than satisfactory, and serves to highlight the need for greater control over prosecutorial discretion.[6]*162
*163 The concerns deriving from the statistical disparities among counties within this State is heightened in this case because defendant was prosecuted by the Atlantic County Prosecutor's Office. The Study suggests that with the exception of Monmouth County, this Office is far more likely to serve a notice of aggravating factors in a death-possible case than any other county in the State. Close to 60 percent (59%) of death-possible cases became death-eligible in Atlantic County. Study, Interim Report Part I, at TABLE CP4. In comparison, consolidation of the relevant statistics for Essex, Hudson, Camden, Mercer, and Passaic Counties reveals that in these five counties an average of only 25 percent of death-possible cases became death-eligible. Id. This seemingly wide disparity, coupled with the arguably tentative nature of the evidence supporting the capital-murder prosecution in this case, raises serious concerns of arbitrariness and disproportionality.
C.
The borderline nature of the evidence supporting capital murder prosecution in this case, as well as the lack of standards to control the prosecutor's discretion, is even more troubling in *164 light of the fact that defendant is black and his victim white. I acknowledge that there is no actual evidence of any racial bias or invidious discrimination in this case. Nevertheless, the statistical evidence indicates that we should not disregard the potential for racial bias.
As noted in State v. Koedatich, supra, 112 N.J. at 266-267 (Handler, J., dissenting), the Supreme Court in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), rejected petitioner's claim, based on statistical studies, that the Georgia capital punishment system violates equal protection guarantees and the eighth amendment by discriminating in application according to the race of the victim.[7] The Supreme Court felt that because the studies showed no discrimination in McCleskey's individual case, this foreclosed his equal-protection claim. I strongly disagree that we should be influenced or persuaded by the federal Court's analysis. State v. Koedatich, supra, 112 N.J. at 267 (Handler, J., dissenting). Our State Constitution, in light of our pronounced and consistent concern about the subtle evils of discrimination, demands the most scrupulous assessment of such claims. State v. Rasmeur, supra, 106 N.J. at 426 (Handler, J., dissenting).
The Public Defender's Study indicates that the race of the victim may be of some significance in whether a case is prosecuted as a capital-murder offense, with cases involving a white victim more likely to progress to the death-eligible class than those involving black or Hispanic victims.[8] The data, according to the Public Defender, also suggests that cases are designated *165 death-eligible in a manner that is influenced by the race of the defendants and victims, with a black defendant/white victim homicide more likely to be designated death-eligible than a white defendant/white victim homicide.[9] Indeed, the Interim Report of the Public Defender concluded its discussion of the racial statistics as follows:
At this initial point of examination of case progression probabilities, there is some indication, then, of differences in the comparative probabilities that homicide defendants will move more deeply into the New Jersey capital case processing system based on the race characteristics of the defendant and the victim.
[Study, Interim Report Part I, "Research Findings" at 10.]
These statistical differences, indicating some correlation between the race of victim and defendant and the decision by a prosecutor to serve a notice of aggravating factors in a death-possible case, are of greater concern in this case because the statistical disparity in Atlantic County is more pronounced than it is statewide. Supra at 163-64. Although the information is tentative, the study reveals that all (100%) of the death-possible cases involving a black defendant/white victim pattern became death-eligible, whereas only 25% of those involving a black defendant/black victim or 20% of those homicides involving a white defendant/white victim became death-eligible. Study, *166 Interim Report Part I, at TABLE CP11B. As noted, there are difficulties with the data presented, particularly in that the critical determination of whether a case was "death-possible" is heavily dependent on information furnished by defense counsel. Supra at 161 n. 5. Nevertheless, in light of uncontrolled prosecutorial discretion and the arguably tentative nature of the evidence supporting capital murder in the instant case, this rather emphatic difference must cause apprehension.
Most important, the question of prosecutorial discretion as it relates to the potential for racial bias cannot be utterly disregarded or discounted. Dissenting in McCleskey v. Kemp, supra, Justice Blackmun stated that "[t]he Court's emphasis on the procedural safeguards in the system ignores the fact that there are none whatsoever during the crucial process leading up to trial," 481 U.S. at 366, 107 S.Ct. at 1805, 95 L.Ed.2d at 326, implying that the substantial discretion afforded prosecutors during the process prior to trial might be the cause of the racial disparities shown in the statistics before the Court. As explained in Gross & Mauro, "Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization," 37 Stan.L.Rev. 27, 106-07 (1984): "Since death penalty prosecutions require large allocations of scarce prosecutorial resources, prosecutors must choose a small number of cases to receive this expensive treatment. In making these choices they may favor homicides that are visible and disturbing to the majority of the community, and these will tend to be white-victim homicides." See McCleskey, supra, 481 U.S. at 294 n. 13, 107 S.Ct. at 1803 n. 13, 95 L.Ed.2d at 322-23 n. 13 (Blackmun, J., dissenting). Thus, I would urge the Court, in the context of this case, to seriously examine the problem of prosecutorial discretion as it may relate to the difficult issue of racial disparity.
D.
Prosecutorial discretion in this case is troublesome not only with respect to race, but also with respect to the apparent lack *167 of proportionality evinced by the dramatically differing sentences received by Gerald and his two co-defendants. In the ordinary criminal setting, we can countenance some degree of sentencing disparity. In the context of capital sentencing, however, a system that affords prosecutors the leverage to force defendants to choose between imprisonment and a possible death sentence is no improvement over the prior unconstitutional system that forced defendants to choose between a non vult plea and a possible death sentence. See State v. Funicello, supra, 60 N.J. 60 (1972).
In State v. Ramseur, I expressed the view that under state constitutional and fundamental fairness doctrines our capital murder-death penalty statute did not provide sufficient guidance to overcome the genuine risk of arbitrary and capricious applications. 106 N.J. at 405-06. I pointed out that the global statutory definition of murder and the fusion of the guilt and sentencing determinations, with the simultaneous application of statutory aggravating factors to determine both death eligibility and the death sentence, robbed the statute of coherence and objectivity. Ibid. I emphasized that the absence of guided prosecutorial discretion and mandatory effective proportionality review exacerbated the risk of arbitrariness. Ibid. I reiterated these views in State v. Koedatich, supra, 112 N.J. at 264-271.
I continue to urge that guided prosecutorial discretion is integral to a valid death penalty scheme. As was noted by Justices Blackmun, Marshall, and Stevens in dissent in McCleskey v. Kemp, supra, "the establishment of guidelines for Assistant District Attorneys as to the appropriate basis for exercising their discretion as to the various steps in the prosecution" is needed in the interests of consistency. 481 U.S. at 365, 107 S.Ct. at 1805, 95 L.Ed.2d at 325-26 (Blackmun, J., dissenting). In the absence of a comprehensive recasting of the statute to overcome its current constitutional defects, guided prosecutorial discretion will serve at least to reduce, even if it cannot eliminate, the risk of arbitrary application and disproportionate sentencing.
*168 III.
I join in the Court's decision to reverse defendant's conviction and death sentence. I endorse its reasoning that under our State Constitution it is impermissible to permit an offender to be convicted of capital murder and sentenced to death without the intent to kill. I therefore agree that one whose state of mind is only to cause serious bodily injury that proves fatal should not be exposed to the death sentence. I also concur in the Court's interpretation of the "own conduct" requirement. I would, moreover, make expressly certain that under the State Constitution only offenders who intend to kill, not merely kill with knowledge of the fatal consequences of their acts, should be exposed to the death sentence.
In addition, I emphasize that the Court should find the capital murder-death penalty statute unconstitutional because of the lack of uniform standards to guide prosecutorial discretion and the failure to develop such standards in order to complement and assure proportionality of sentencing.
Accordingly, I concur in part and dissent in part.
O'HERN, GARIBALDI and HANDLER, JJ., concurring in the result.
For reversal and remandment Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, O'HERN, POLLOCK, GARIBALDI and STEIN 7.
For affirmance None.
NOTES
[1] The maximum sentence for a non-capital murder was later increased up to life imprisonment with thirty years without possibility of parole, L. 1982, c. 111; the maximum sentence for aggravated manslaughter was increased to thirty years with a possible fifteen-year parole bar. L. 1986, c. 172.
[2] Of course, the reticulated structure of the Code forbids absurd results. See N.J.S.A. 2C:2-3(b). An actor is not criminally culpable for the results of conduct unless the actual result either "be within the design or contemplation" of the actor (sometimes described as "the designed or contemplated result") or involve "the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense" (sometimes described as "the remote result"). N.J.S.A. 2C:2-3(b).
[3] See State v. Rose, 112 N.J. 454 at 484, (1988) (Handler, J., dissenting) (Justice Handler, noting the similarities between "purpose" and "extreme indifference," observed: "[T]he Commentary recognizes the propinquity indeed, it urges the inseparability of species of recklessness `manifesting extreme indifference to the value of human life' and `knowing' murder; `extreme indifference' is the formula by which `recklessness' is `assimilated to knowledge.'").
[4] As noted, the legislative history with respect to the 1979 consensus amendments is sparse indeed concerning whether the Legislature intended to create a less-morally-culpable form of criminal homicide that would be punished more severely than aggravated manslaughter.
[1] For example, "a death-possible" case was prosecuted as death-eligible in Monmouth County 70% of the time, whereas in Essex County only 23% of death-possible cases were prosecuted as death-eligible; in Hudson and Camden Counties the rates were 24% and 28%, respectively. Study, Interim Report Part I, at TABLE CP4.
[2] Thus, according to the Study, the chances that a plea bargain would be offered in a given case were significantly higher in Hudson and Camden Counties than in Monmouth County. Only 25% of such cases were given a plea bargain in Monmouth County, whereas 74% and 63% of such cases were pled out in Camden and Hudson Counties, respectively. Id. at TABLE PT4.
[3] The Study relies on the defense attorneys' designation of a case as "death-possible." According to the Preliminary Report of the Public Defender, the data base was compiled from interviews with defense counsel. The interviews were intended to "record precise information on the characteristics of the defendant and victim, the circumstances of the homicide, the legal result, and the stages of case processing." The interviewing process is described as follows:
When a case is completed the defense attorney is interviewed in person by the field attorney using the structured interview schedule. The defense attorney is interviewed with the case file before him.... The field attorneys ask for a copy of the indictment or accusation, the judgment sheet and the verdict sheet, and they also ask for a copy of the presentence report and the initial police report.... These documents are then filed by case study number and used for verification....
In addition to recording the data points on the structured interview schedule, the field attorneys .. . probe on the individual circumstances of each case.... If the case was not a capital case, but there was a factual basis for serving a notice of factors, why, in the defense attorney's opinion, was the case not designated a capital case by the prosecutor. What were the important issues in the case. What was the nature of the evidence. How credible were the State witnesses. Were there plea offers.... How strong was the prosecution's case, and how was the case structured prior to trial or plea. Was attorney conducted voir dire used, and was there significant pretrial publicity. What were the defense strategies. What was the prosecutor's theory of the case. Did the defendant make a statement and was the statement admitted. What was important in this particular homicide case. Why did the case result in this particular disposition.
[Study, Preliminary Report (January 1987) at 57-59.]
[4] The Study offers a statistical comparison of "all cases of homicide, except vehicular manslaughter, where the homicide occurred after August 6, 1982, the effective date of the reimposition of capital punishment in New Jersey." The criteria for inclusion in the data base are "formal charge for a homicide offense by the prosecutor's office and a final disposition of that charge at the trial court level." Study, Interim Report Part I, at APPENDIX A-1 Methodology. The specific data on the case, including the assessment of whether a factual basis existed for serving a notice of aggravating factors, is assembled by interviewing "the attorney, private counsel or public defender, who represented the defendant at trial or at plea and sentencing." Id.
[5] A reliable indicator of "death-eligible" cases could be simply whether cases are like ones in which a notice of aggravating factors is served. The Public Defender's Study, however, has allowed "death-possible" characteristics of a case to be defined essentially by the defense counsel in a given case, and the Study uses these "death-possible" data to make the serious charge that from 1982-1986, of 404 cases in which a factual basis existed for serving a notice of aggravating factors, prosecutors actually served such a notice on only 131 defendants. The validity of the implication of this statistic that the odds are great that at least some cases in which the death sentence was sought and obtained are factually indistinguishable from cases in which the penalty was not even sought, and thus that the system is operating arbitrarily is dependent on the accuracy of the data on how many death-possible cases existed.
[6] The Smith case is highly instructive and of more than passing interest. The defendant, a juvenile charged with capital murder (the legislature's amendment proscribing execution of juvenile offenders later mooted the capital issue), see State v. Bey (1), 112 N.J. 45 (1988), challenged the Essex County Prosecutor's exercise of discretion in seeking the death penalty in his case. To support his claim, Smith brought
to the court's attention 15 other recent homicide indictments ... [E]ach of these indictments charges the defendant with purposeful or knowing murder by his or her own conduct. Each also includes a count charging that the victim of the murder was also the victim of a robbery. In each of these cases, it was factually plausible for the prosecutor to seek the death penalty. Unlike Smith, however, none of these 15 other defendants was served with notice of [aggravating factors]. Thus, the prosecutor made the decision to treat Smith's case as a capital case, but declined to seek the death penalty against similarly situated defendants.
Smith, supra, 202 N.J. Super. at 591. Judge Cocchia acknowledged the "broad discretionary powers" with which a prosecutor is vested. Id. at 592 (citing State v. Laws, 51 N.J. 494, 510-11 (1968), cert. den., 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384; State v. Hermann, 80 N.J. 122 (1979); State v. Conyers, 58 N.J. 123, 146 (1971) (it is within the prosecutor's discretion not to seek the death penalty)). The court also acknowledged that "[a]s a general proposition, the conduct of a prosecutor is presumed to be valid," State v. McCrary, 97 N.J. 132, 142 (1984), but insisted that "[n]owhere is judicial intrusion into the realm of prosecutorial discretion more appropriately exercised or likely to be necessary than in capital criminal proceedings." Smith, supra, 202 N.J. Super. at 592 (citing McCrary, supra, 97 N.J. at 141). The court rejected the prosecutor's argument that "so long as there was an adequate factual basis for serving Smith with notice of the aggravating factor ... he cannot be said to have acted arbitrarily or capriciously.... This argument ... confuses arbitrary and capricious prosecution with groundless prosecution." Id. 202 N.J. Super. at 593. Arbitrary, the court declared, "`means depending on will or discretion, that is not governed by any fixed rules or standards.'" Id. (quoting Canada Dry Ginger Ale, Inc. v. F & A Distrib. Co., 28 N.J. 444, 456 (1958)). The court concluded:
Even now, almost three years after the reenactment of the death penalty, the guidelines by which the prosecutor determines whether to proceed with a homicide case as a capital or noncapital cause remains [sic] obscure. Indeed, in oral argument ... the attorney for the State admitted that she had no notion as to how the Essex County Prosecutor's Office chooses homicide cases for capital treatment. How then is a defendant ... to meet his burden of demonstrating that the decision of the prosecutor ... is arbitrary ... where the defendant has no comprehension of the criteria and procedure by which that vital decision is made?... The defendant ... the public ... and the court, which must be sufficiently informed about the decision-making process so as to be able to ensure that it is free of any randomness, vagary or discrimination, are all entitled to some understanding of how the prosecutor selected cases for capital treatment.
[Id. 202 N.J. Super. at 594.]
Accordingly, the court ordered "that the prosecutor submit in writing a statement setting forth the criteria and procedure by which the Essex County Prosecutor's Office selects homicide cases for capital prosecution." Ibid. The Prosecutor's Office responded with an unsigned, undated memorandum that provided none of the requested information. According to a brief filed in this case, the court responded in a letter: "The Court finds the statement submitted to be flagrantly inadequate.... The Court is displeased with what it perceives to be a cavalier response on the part of the Prosecutor's Office.... indeed, it is difficult to believe that the attorneys for the State legitimately anticipated that so cursory and deficient a statement would be acceptable to the Court." The Prosecutor's Office followed with a more detailed description of its internal procedures in capital cases. According to the revised memorandum, the decision whether to prosecute a given homicide as a death-penalty case depends on the Assistant Prosecutor's assessment that one or more aggravating factors can be proven.
It is clear that no explicit comparison is made among homicides; decisions are made on a case-by-case basis. According to arguments presented to this Court on behalf of the Attorney General in recent capital murder appeals, there is no commitment by that office to the need for uniform standards, nor is there any sense that non-uniformity among prosecutors constitutes any kind of a problem in the administration of the death penalty statute. This provides independent empirical support for the Public Defender's thesis that there exists a high probability of arbitrary prosecution on a case-by-case and county-by-county basis, stemming from an absence of uniform prosecutorial standards.
[7] The studies there indicated that a black murderer of a white person is more likely to be sentenced to death than a black murderer of a black person, and that prosecutors seek the death penalty in 70% of the cases involving black defendants and white victims and 15% of the cases involving black defendants and black victims. McCleskey v. Kemp, supra, 481 U.S. at 285, 107 S.Ct at 1763, 95 L.Ed.2d at 275.
[8] According to the Study, cases involving white victims comprise 40.5% of all death-possible cases but increase their percentage share substantially to 53.1% of the cases that are death-eligible. This increase is to be contrasted with cases involving a black victim, which comprise 44.8% of all death-possible cases, but only 38.5% of death-eligible cases. Similarly, cases involving Hispanic victims comprise 14.7% of death-possible cases, but only 8.4% of death-eligible cases. Because the odds that a case involving a white victim would advance from death-possible to death-eligible were substantially greater than in cases involving Hispanic or black victims, the Study points to some racial disparity in the plenary exercise of prosecutorial discretion over seeking the death penalty in death-eligible cases. Study, Interim Report Part I, at TABLE CP2.
[9] Black defendant/white victim cases had the highest probability of being death-possible (.85) followed, in decreasing order, by white defendant/white victim (.62), black defendant/black victim (.52), and Hispanic defendant/Hispanic victim (.50). White victim cases, regardless of whether the defendant was black or white, exhibited the highest probability of advancing to the death eligible stage. Id. at TABLE CP3B.
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632 F. Supp. 1546 (1986)
Clara SANCHEZ-TRUJILLO, Plaintiff,
v.
The IMMIGRATION AND NATURALIZATION SERVICE OF the UNITED STATES DEPARTMENT OF JUSTICE, and Louis M. Richard, in his Official Capacity as District Director, Defendants.
No. C-C-84-0593-P.
United States District Court, W.D. North Carolina, Charlotte Division.
April 21, 1986.
*1547 *1548 Robert Alan Donat, Charlotte, N.C., for plaintiff.
Charles R. Brewer, U.S. Atty., Charles R. Jonas, Charlotte, N.C., for defendants.
MEMORANDUM AND ORDER
ROBERT D. POTTER, Chief Judge.
THIS MATTER was heard before the undersigned on March 19, 1986 at Charlotte, North Carolina. The Plaintiff was represented by Robert Alan Donat, Attorney at Law. Terry C. Bird, District Counsel for the Immigration and Naturalization Service, and Charles E. Lyons, Assistant United States Attorney, appeared on behalf of the Defendants.
In its Order filed March 17, 1986, this Court directed the Clerk to enter the default of the Defendants for their failure to file an Answer to the Plaintiff's Amended Complaint within the time allowed by the Court. Since the Defendants in this case are agents of the United States, however, the Court declined to enter judgment by default without having heard the Plaintiff's evidence on the merits of her claim. A claimant may not obtain a default judgment against the United States unless he establishes his claim or right to relief by evidence satisfactory to the Court. Fed.R. Civ.P. 55(e). The Plaintiff, therefore, presented her case to the Court at the hearing on March 19, 1986.
After carefully considering the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law:
(1) The Plaintiff, Clara Sanchez-Trujillo, is a citizen of Colombia currently residing in the United States.
(2) The Defendant, the Immigration and Naturalization Service ("INS"), is an agency *1549 of the United States Department of Justice responsible for the administration of United States immigration laws.
(3) The Defendant, Louis M. Richard, is the District Director of District # 26 of the INS.
(4) The Plaintiff was born on December 3, 1960 in Medellin, Colombia.
(5) The Plaintiff's mother, Lucidia Trujillo Cartagena, and her father, Fernando Antonio Sanchez-Ceballos ("Sanchez"), were never married.
(6) On June 17, 1963, Sanchez was admitted to the United States as a lawful permanent resident. He established his residence in California.
(7) Sanchez returned to Colombia to visit the Plaintiff in 1966, 1969, and 1972. The Plaintiff lived with her father at his request and with the consent of her mother at her paternal grandparents' home during his visit from November 1972 to August 1973.
(8) The Plaintiff testified that her mother and father went to a public notary during his 1972 visit and signed a statement acknowledging that they were her legitimate parents. She further testified that her father's name had been placed on her civil birth certificate by the time he left Colombia in 1973.
(9) During each of his visits, Sanchez expressed a desire to take the Plaintiff back to the United States with him. The Plaintiff's mother, however, felt that she was too young to leave Colombia. She finally consented to allowing the Plaintiff to join her father in the United States when she reached the age of sixteen.
(10) In 1976, Sanchez telephoned the Plaintiff in Colombia and expressed his intention to bring her to the United States. Following that conversation, the Plaintiff obtained certified copies of her civil birth certificate, her church birth certificate, and an affidavit from her mother. She sent all three documents to her father at his request at the end of 1976. The contents of the documents were, of course, written in Spanish.
(11) The civil birth certificate recites the Plaintiff's date and place of birth, her gender, and her name, Sanchez Trujillo Clara Maria. See Plaintiff's Exhibit 12. Both of her parents' surnames appear in her name on the certificate. The Plaintiff explained that the custom in Colombia is for the father's surname to appearance first and the mother's surname to appear second in a child's name. If a child does not legally have her father's name, however, only her mother's surname will appear in her name. Therefore, the fact that the Plaintiff's father's surname appears on her birth certificate shows that her father indeed did acknowledge her as his child. The significance of the appearance of her father's name on her birth certificate is clarified by the addition of the notation, "The registered person is the daughter acknowledged by Mr. Fernando Antonio Sanchez and of Mrs. Lucidia Trujillo," to her birth certificate in 1983. The notation that the inscription was done in December 1972 bolsters the Plaintiff's testimony that her parents formally acknowledged her during Sanchez' 1972 visit. See Plaintiff's Exhibit 4.
(12) The church birth certificate, Plaintiff's Exhibit 11, recites the date that the Plaintiff was baptized in the church, her Christian name (i.e., Clara Maria), and that she is the daughter of Fernando Sanchez and Lucidia Trujillo. It also identifies her paternal and maternal grandparents.
(13) The affidavit submitted by the Plaintiff's mother declares that she is the mother of the Plaintiff and that the Plaintiff had always been under the guardianship of her father. The Plaintiff testified that her father paid for her school, that he had sent her money, and that he had held her out as his daughter whenever he came to Colombia.
(14) On November 30, 1976, Sanchez filed an Application for Verification of Lawful Permanent Residence of an Alien (Form I-550) with the INS. See Plaintiff's Exhibit 1. Sanchez stated on that form that the Plaintiff was his "daughter," "illegitimated *1550 child," and that she was "recognized by father."
(15) On January 3, 1977, Sanchez filed a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa (Form I-130) with the INS on behalf of the Plaintiff. See Plaintiff's Exhibit 2. On the face of that form, Sanchez directed the INS to the Form I-550 that he had filed earlier. The Defendants' attorney stated at the hearing that the Plaintiff's civil birth certificate and two other documents (presumably the other two documents mentioned above that the Plaintiff had sent to her father) accompanied the petition. No English translations of those documents were submitted, however.
(16) On March 23, 1977, the INS returned the petition and its supporting documents to the Plaintiff's father attached to INS Form I-72. See Plaintiff's Exhibit 3. On that form, the INS explained to Sanchez that if he had never been married to the Plaintiff's mother, he would not be eligible to file a petition in her behalf. It further stated that "[a]n illegitimate child does not recieve [sic] any benefits from its father under Immigration Law." The INS marked the box on the form directing the Plaintiff's father to "[f]urnish the marriage certificate of Fernando and Lucidia Trujillo." It did not mark the box next to the instruction that "[a]ll foreign language documents must be accompanied by English translations thereof ...."
(17) Sanchez attempted again to file the Form I-130 with its supporting documents with the INS.
(18) On April 29, 1977, the INS sent another Form I-72 to Sanchez' last known address, in which the INS stated:
Section 101(b)(1)(D) defines an "illegitimate child" in regard to eligibility to receive immigration benefits as a child "by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother." 8 C.F.R. 204.2(c)(5) also requires that a petition by a father for a child be accompanied by a marriage certificate of the father or stepfather to the natural mother of the child. Since you have not established that the beneficiary is the legitimate child and no benefits can be bestowed on an illegitimate child by a father, the visa petition is hereby rejected. Plaintiff's Exhibit 3A. This second notice was returned to the INS by the Post Office.
(19) The INS did not ever notify Sanchez of any appeal rights he might have.
(20) The Plaintiff testified that in June or July of 1977 she received a letter from the INS which stated that her father's petition had been denied because he never married her mother and she was an illegitimate child. She stated that she did not consider pursuing the matter any further in 1977 since her parents had never married.
(21) In August 1982, the Plaintiff arrived in the United States on a tourist visa with her boyfriend. An attorney advised her that her father was indeed eligible to file a visa petition in her behalf if she was his legitimated daughter, notwithstanding the fact that he had never married her mother. She went to visit her father in California in 1982, and she asked him to go back to the INS to pursue the visa petition for her once again.
(22) Sanchez had been suffering from acute schizophrenia for a number of years, however, and was quite ill at the time the Plaintiff went to see him in California. He did not return to the INS as a result of his severe depression, and eventually committed suicide in 1983.
(23) The Plaintiff requested an extension of her visa from the INS so that she could help administer her father's estate and consult with an attorney regarding her immigration status. The INS denied her request on January 6, 1984. See Plaintiff's Affidavit.
(24) The Plaintiff voluntarily submitted herself to the INS for processing for deportation since she was not granted a visa extension. On April 17, 1984, the Plaintiff was found deportable and was granted voluntary departure in lieu of deportation until August 1, 1984.
*1551 (25) On July 27, 1984, the Plaintiff filed with the INS a Motion to reconsider the I-130 petition previously filed by her father and denied. In addition, the Plaintiff requested an extension of her voluntary departure date until the INS decided her Motion to reconsider.
(26) Although the INS denied the Plaintiff's request for an extension of her voluntary departure, this Court granted her Motion for a preliminary injunction. The injunction issued by the Court on December 6, 1984 prevented the INS from enforcing the Plaintiff's departure until a final decision was made by the INS on her Motion to reconsider.
(27) On January 7, 1985, Defendant Richard notified the Plaintiff's attorney that her Motion to reconsider had been denied and that her voluntary departure date was being extended to January 31, 1985.
(28) On March 15, 1985, the Court allowed the Plaintiff to file an Amended Complaint seeking review of the Defendants' rejection of Sanchez' visa petition in her behalf.
(29) The Plaintiff alleges that she was legitimated under the law of her residence (Colombia) and/or her father's residence (California) before her eighteenth birthday and while she was in the custody of her father.
(30) She further asserts that the INS knew or should have known when her father filed the petition that she was the legitimated child of Fernando Antonio Sanchez-Ceballos.
(31) The Plaintiff alleges that her father would have pursued the visa petition, thus paving the way for her to apply to have her status adjusted to that of a permanent resident, if the INS had not misinformed him as to the supposed marriage requirement for legitimation, if the INS had not failed to inform him of a right to appeal the denial of his petition, and if her father had not been ill.
(32) The Plaintiff requests that:
(a) the Court declare her father's I-130 petition approved as of the date it was filed;
(b) she be given the priority date for a visa that she would have gotten had her father's petition been approved at the time it was filed;
(c) she be allowed to adjust her immigration status to that of a permanent resident;
(d) her voluntary departure date be extended until this Court renders a decision on the merits of her case;
(e) if this Court rules against the Plaintiff, her voluntary departure date be set at thirty days after that decision; and
(f) the costs of this action, including attorney's fees, be taxed to the Defendants.
(33) The Court informed the Plaintiff at the hearing that her voluntary departure date would be extended until the Court rendered a decision on the merits of her case.
CONCLUSIONS OF LAW
(1) The Court has jurisdiction over this case pursuant to 5 U.S.C. § 702 et seq.
(2) A federal district court may reverse a denial by the INS of a petition for preferential immigrant visa status only if the INS abused its discretion. North American Industries, Inc. v. Feldman, 722 F.2d 893 (1st Cir.1983); Mila v. District Director, 678 F.2d 123 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S. Ct. 726, 74 L. Ed. 2d 952 (1983). The Court may find an abuse of discretion "if there is no evidence to support the decision or if the decision is based on an improper understanding of the law." Kaliski v. District Director of Immigration and Naturalization Service, 620 F.2d 214, 216 n. 1 (9th Cir.1980).
(3) The Immigration and Naturalization Act provides that second preference for the availability of immigrant visas shall be given to "qualified immigrants who are the spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence." 8 U.S.C. § 1153(a)(2).
*1552 (4) To qualify as an unmarried son or daughter under 8 U.S.C. § 1153(a)(2), an immigrant must first qualify as a "child" under 8 U.S.C. § 1101(b)(1)(C). See Kaliski, supra, at 215; Nazareno v. Attorney General, 512 F.2d 936 (2d Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 53, 46 L. Ed. 2d 49 (1975). Pursuant to § 1101(b)(1)(C), a "child" is
(1) an unmarried person under twenty-one years of age who is
(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
8 U.S.C. § 1101(b)(1)(C).
(5) At the time the Plaintiff's father filed his I-130 petition on behalf of the Plaintiff with the INS, he was a resident of California. The law of California in effect at that time regarding legitimation was the Uniform Parentage Act, California Civil Code § 7000 et seq., which provides:
(a) A man is presumed to be the natural father of a child if he meets the conditions as set forth ... in any of the following subdivisions:
....
(4) He receives the child into his home and openly holds out the child as his natural child.
California Civil Code § 7004(a)(4).
(6) The Plaintiff was legitimated by her father under California law before she reached the age of eighteen when he took her into his home with his parents in Colombia from November 1972 to August 1973 and held her out as his daughter. It does not matter that the legitimating acts occurred outside of California, since her father reestablished California as his domicile when he returned to the United States. Kaliski, supra, at 216.
(7) Colombian Law No. 45 of February 21, 1936 governed the legitimation of children born out of marriage in Colombia, the Plaintiff's residence, at the time her father filed the I-130 petition. According to an opinion prepared by the Hispanic Law Division of the Library of Congress,
[t]he basic provisions of this law state that a child born to parents who at the time of his or her conception were not married to each other is a natural child when he or she has been acknowledged or declared as such according to the law.
....
The acknowledgment of natural children is irrevocable and can be made: 1) in the child's birth records by the parent who acknowledges him or her by signing the records, [or] 2) in a public, i.e., notarial instrument .... (art. 2).
A. Gonzalez, Hispanic Law Division Report on Colombian Law on Parentage, p. 1.
(8) It is not clear from the face of the copies of Plaintiff's birth certificates that her father actually signed the Plaintiff's birth records. The notation on the 1983 copy of the Plaintiff's civil birth certificate that the inscription registering her birth had been made on December 29, 1972, however, supports the Plaintiff's testimony that her father had gone before a notary public during his 1982 visit and signed a statement acknowledging that the Plaintiff was his daughter. Thus, the Court finds that the Plaintiff was legally acknowledged by her father according to Colombian law while she was in her father's custody in 1972.
(9) The INS was at least put on notice that the Plaintiff had been recognized or legitimated by her father when he filed the I-130 petition in her behalf. In the petition itself, Sanchez referred the INS to his Form I-550, which stated that the Plaintiff was his "illegitimated" child who was "recognized by father." The Colombian birth certificates contain Sanchez' name, and the church certificate specifically shows that she was baptized as the daughter of Fernando Sanchez. The mother's affidavit further states that the Plaintiff had been under the guardianship of her father. It is true that these documents were not accompanied by certified English *1553 translations as required by 8 C.F.R. § 103.2(b)(1). The INS, however, did not notify Sanchez of the need to submit translations of his supporting documents, even though it could have done so simply by marking the appropriate instruction on the Form I-72 it sent to him with the rejected petition and documents. See Exhibit 3, Instruction # 8. In any event, the INS was on notice of the contents of those documents. In addition, the INS was under a duty to investigate the facts of the case before deciding the fate of the petition. See 8 U.S.C. § 1154(b).
(10) Clearly, the INS' statement on its Form I-72 to Sanchez that he was not eligible to file a petition in his daughter's behalf if he had never been married to her mother was a misstatement of the law. As long as he had legitimated the Plaintiff under the law of his or her residence before her eighteenth birthday and while she was in his custody, he was eligible to file a petition for preferential visa status on her behalf. The INS' rejection of Sanchez' petition for failure to provide proof that he had been married to the Plaintiff's mother was based on an improper understanding of the law and was, therefore, an abuse of discretion that may be reversed by this Court.
(11) The INS' abuse of discretion in denying Sanchez' petition prevented the Plaintiff from proceeding with her plans to apply for adjustment of her status to that of a permanent resident. There is, however, no guarantee that her application would have been granted even if the INS had properly approved Sanchez' visa petition when he filed it. Eligibility to receive an immigrant visa is merely a prerequisite to consideration of an application for adjustment of status by the Attorney General. 8 U.S.C. § 1255(a). As the Sixth Circuit noted in Chen v. Foley, 385 F.2d 929 (6th Cir.1967), cert. denied, 393 U.S. 838, 89 S. Ct. 115, 21 L. Ed. 2d 109 (1968):
Section 245 [8 U.S.C. § 1255] contains certain objective prerequisites which must be met before the relief afforded by that section is available. Once these conditions are satisfied, then the alien has the burden of persuading the Attorney General to exercise his discretion favorably. Tibke v. Immigration and Naturalization Service, 335 F.2d 42 (2nd Cir.1964).
Simply because an alien fulfills the preliminary requirements, does not mean that he will automatically be accorded adjustment of status. Because this form of relief circumvents ordinary immigration procedures, it is extraordinary and will be granted only in meritorious cases, and the burden is on the immigrant to prove that his case is meritorious. Santos v. Immigration and Naturalization Service, 375 F.2d 262 (9th Cir.1967).
Id. at 934.
(12) The Court cannot assume that a proper handling of the Plaintiff's father's original petition would have led ultimately to the adjustment of the Plaintiff's status to that of a permanent resident. It merely would have placed her in a position to apply for the adjustment of status. The Court, therefore, will not adjust the Plaintiff's status to that of a permanent resident, but it will allow her to apply for such an adjustment by reversing the INS' rejection of her father's petition.
(13) The automatic revocation regulations promulgated pursuant to 8 U.S.C. § 1155 do not preclude the Court from retroactively approving the visa petition and placing the Plaintiff in a position to apply for an adjustment of her status to that of a permanent resident. Regulation 205.1 states that the death of the petitioner before a decision on the beneficiary's application for adjustment of status becomes final revokes the approval of a relative petition for preferential immigrant status "unless the Attorney General in his discretion determines that for humanitarian reasons revocation would be inappropriate." 8 C.F.R. § 205.1(a)(3). The statute under which that regulation is promulgated provides that the Attorney General may revoke the approval of any petition approved under 8 U.S.C. § 1154 "for what he deems to be good and sufficient cause." 8 U.S.C. § 1155. The Second Circuit has held that this statute "should not be interpreted to *1554 authorize the Attorney General's wooden application of rules for automatic revocation." Pierno v. Immigration and Naturalization Service, 397 F.2d 949, 950 (2d Cir.1968).
(14) In Pierno, the beneficiary of an approved petition for nonquota status filed by her husband had applied for an adjustment of her status to that of a permanent resident. When her stepson filed an annulment action against her and his father, however, the INS stayed all proceedings in connection with her application for adjustment of status pending the outcome of that action. Six months later the annulment action was dismissed; seven days later, the immigrant's husband died. The INS held that the husband/petitioner's death automatically revoked the approval of the petition for nonquota status, and for that reason alone found that she did not meet the statutory requirements for eligibility for adjustment of status. The Second Circuit noted that "[i]f the proceedings had continued in their normal course, her status would most probably have been adjusted before her husband's untimely death." Id. at 951. It found in essence that an alien should not be penalized as the result of interrupting events unrelated to the normal investigation process and remanded her cause to the INS for further proceedings not inconsistent with its opinion. Id.
(15) In the present case, the "normal course" for obtaining status as a permanent resident was thrown off by the INS' misstatement of the law to the Plaintiff and her father. The petition was originally filed January 3, 1977, and the Plaintiff's father did not die until June 18, 1983. If the INS had properly processed Sanchez' petition, she no doubt would have obtained a decision from the INS on an application for adjustment of status before her father's death six years later. Her father's death, therefore, would not appear to be "good and sufficient cause," 8 U.S.C. § 1155, for revoking approval of the petition. Accordingly, the automatic revocation provisions should not bar the Plaintiff's application for adjustment of her status to that of a permanent resident.
(16) The Court will allow the Plaintiff to remain in the United States pending the outcome of her application for adjustment of status.
(17) The Court will not tax the costs of this action or attorney's fees to the Defendants.
(18) Any finding of fact which is determined also to be a conclusion of law is so deemed, and any conclusion of law which is determined also to be a finding of fact is so deemed.
Based on the foregoing Findings of Fact and Conclusions of Law, IT IS, HEREBY, ORDERED that:
(1) The I-130 petition filed by the Plaintiff's father with the INS is retroactively approved as of March 23, 1977, the date on which the Immigration and Naturalization Service initially rejected it;
(2) The Plaintiff is given the priority date for a visa that she would have gotten had her father's I-130 petition been approved on March 23, 1977;
(3) The Plaintiff is allowed to file an application with the INS for adjustment of her status to that of a permanent resident;
(4) The Plaintiff is allowed to remain in the United States pending the outcome of her application to adjust her status;
(5) The parties will pay their own costs, including attorney's fees; and
(6) Default Judgment against the Defendants will be entered in accordance with this Memorandum and Order.
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632 F. Supp. 2d 194 (2009)
UNITED STATES of America,
v.
James J. NASCI, Defendant.
No. 5:09-CR-105 (DNH).
United States District Court, N.D. New York.
June 26, 2009.
*195 James F. Greenwald, Esq., Office of the Federal Public Defender-Syracuse Office, Districts of Northern New York & Vermont, Syracuse, NY, for Defendant.
Hon. Andrew T. Baxter, Office of the United States Attorney, of Counsel: Lisa M. Fletcher, Esq., Assistant United States Attorney, Syracuse, NY, for the United States of America.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
I. INTRODUCTION
Defendant James J. Nasci ("defendant") is charged with one count of traveling in interstate commerce and thereafter knowingly failing to register and update his sex offender registration in violation of 18 U.S.C. § 2250(a).
Defendant moves to dismiss the Indictment. The United States of America ("Government") opposes and moves for reciprocal discovery. Both parties' motions were taken on submit without oral argument.
*196 II. BACKGROUND
A. Facts
The factual circumstances leading up to defendant's Indictment, in large part, parallel the facts recently presented before the undersigned in United States v. Hall, 577 F. Supp. 2d 610 (N.D.N.Y.2008), appeal docketed, No. 08-6004 (2d Cir. Jan. 7, 2009) and United States v. Guzman, 582 F. Supp. 2d 305 (N.D.N.Y.2008), appeal docketed, No. 08-5561 (2d Cir. Nov. 21, 2008).
In 1998, defendant was convicted of a state sex offense in Florida requiring him to register as a sex offender with the state's sex offender registry. In subsequent years, defendant completed additional sex offender registrations while living in Florida and later moving to New York. However, annual residence verification forms sent to defendant's last registered address in New York in November of 2007 and again in 2008 were returned to the New York Department of Criminal Justice Services by the United States Postal Service as non-forwardable. Through an independent investigation, state law enforcement learned that defendant was living in Greenfield, Indiana. The United States Marshals Service arrested defendant on November 18, 2008, at a residence in Greenfield, Indiana.
Residents at the Indiana address confirmed that defendant was living there in July, September, October, and November of 2008. Defendant was thereafter charged with failing to register under the Sex Offender Registration and Notification Act ("SORNA") after traveling in interstate commerce from July of 2008 through November 2008 in violation of 18 U.S.C. § 2250(a).
B. The Federal Duty to Register as a Sex Offender
SORNA provides: "A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 42 U.S.C. § 16913(a). A "sex offender" is defined as any individual who is convicted of a sex offense under either state or federal law. 42 U.S.C. § 16911(1). Following a change of a sex offender's name, residence, employment, or student status, SORNA requires that a sex offender notify the state in which he lives of such change(s). 42 U.S.C. § 16913(c).
C. The Federal Criminal Penalty for Failure to Register
While § 16913 creates an obligation under federal law to register with state sex offender registries and continually update one's registration, 18 U.S.C. § 2250(a) serves as the enforcement mechanism for a sex offender's duty to register. Pursuant to § 2250(a), any sex offender who is required to register under SORNA and either was convicted of a federal sex offense or was convicted of a state sex offense and traveled in interstate commerce faces up to ten years in prison for knowingly failing to register or update his registration.
III. DISCUSSION
Defendant acknowledges in his memorandum of law that the constitutional issues raised in support of his motion are identical to the issues presented in Hall and Guzman. See Def's. Mem. of Law, Dkt. No. 9-2, 1, n. 1. In particular, defendant argues the duty to update one's sex offender registration pursuant to SORNA constitutes an unconstitutional exercise of Congress's power under the Commerce Clause.
Hall considered whether Congress, through its Commerce Clause powers, *197 could require sex offenders to update their state sex offender registration regardless of whether they remained in-state or were convicted of only a purely local sex offense. Hall, 577 F.Supp.2d at 618. Although the defendant in Hall raised a number of challenges to the federal duty to register established under § 16913, including New York State's failure to implement the statute's registration requirements, the Ex Post Facto Clause, the Due Process Clause, the Tenth Amendment, and the non-delegation doctrine, these arguments were ultimately rejected. Id. at 614-18. Nevertheless, Hall held that the federal duty to register with a state's sex offender registry regardless of whether a sex offender remained in-state or was convicted of a purely local sex offense was an unconstitutional exercise of Congress's authority under the Commerce Clause. Id. at 622. In light of the fact that a defendant's conviction under § 2250(a) requires the Government to prove that he was obligated to register with the state sex offender registry pursuant to § 16913, the constitutional defect of § 16913 extended to § 2250(a). Id. at 623; see also, Ward v. Illinois, 431 U.S. 767, 774, 97 S. Ct. 2085, 2090, 52 L. Ed. 2d 738 (1977) (explaining that an unconstitutional statute cannot serve as a predicate for a defendant's conviction).
Additionally, Hall considered sua sponte whether the federal duty to register with states' sex offender registries was a constitutional exercise of Congress's spending power. Hall, 577 F.Supp.2d at 622. Hall explained that the notion that § 16913 is constitutional pursuant to Congress's spending power is inconsistent with the argument that sex offenders are required to register under SORNA prior to the states' implementation of the statute's registration requirements. Id. If SORNA is nothing more than mere encouragement for the states to implement the statute's uniform registration requirements or otherwise lose a portion of their federal funding, then sex offenders are not yet required to register under SORNA since none of the fifty states have implemented the registration requirements.
Guzman considered the same constitutional issues related to SORNA. In addition to the arguments raised on its behalf in Hall, the Government presented new arguments for the first time in support of its position that Congress could constitutionally require sex offenders to register with states' sex offender registries regardless of whether they remained in-state or were convicted of purely local sex offenses: the Government argued that (1) the intrastate activity of sex offenders has a substantial effect upon interstate commerce; (2) the obligation to register under federal law is a proper exercise of Congress's power under the Necessary and Proper Clause; (3) the duty to register under federal law is proper under Congress's spending powers; and (4) that the defendant should be barred from challenging SORNA's constitutionality because he in fact failed to update his sex offender registration after traveling in interstate commerce. Guzman, 582 F.Supp.2d at 309. The Government's spending powers argument raised for the first time in Guzman was rejected by reference to the Hall decision and was not afforded further discussion. Id.
The Government's remaining arguments were also rejected. With respect to the contention that sex offenders' intrastate activity substantially affects interstate commerce, Guzman explained that sex offenders' intrastate conduct was neither commercial nor economic in nature. Id. at 310-11 (discussing the distinctions between sex offenders' intrastate activity and the regulated activity considered in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 *198 L.Ed. 122 (1942) and Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005)).[1] Alternatively, the Government cited United States v. Passaro, No. 07-CR-2308-BEN, 2007 WL 6147936 (S.D.Cal. Dec. 17, 2007) for the proposition that a sex offender's intrastate activity has an aggregate effect upon interstate commerce because individuals who elect to participate in interstate commerce may fear for their personal safety.[2]Guzman likewise rejected Passaro because its rationale parallels the "cost of crime" argument that the Supreme Court first rejected in United States v. Lopez, 514 U.S. 549, 563-64, 115 S. Ct. 1624, 1632, 131 L. Ed. 2d 626 (1995) and again in United States v. Morrison, 529 U.S. 598, 617, 120 S. Ct. 1740, 1754, 146 L. Ed. 2d 658 (2000) ("We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.").
Notably, the Government does not presently contend that sex offenders' intrastate conduct substantially affects interstate commerce. Instead, the Government presents three new arguments in support of upholding SORNA: (1) that, for different reasons than argued in Guzman, SORNA is a valid exercise of Congress's powers under the Necessary and Proper Clause; (2) that SORNA does not establish a federal obligation for sex offenders to update their registry outside of federal jurisdiction; and (3) that the federal obligation to register is a proper exercise of Congress's Commerce Clause power because Congress intended to help the states remedy a national problem that defied a local solution. The Government also reiterates its same argument asserted in Guzman that defendant is barred from challenging the constitutionality of SORNA because he in fact traveled in interstate commerce. See Guzman, 582 F.Supp.2d at 314-15 (rejecting the argument that the defendant was barred from challenging the constitutionality of the federal duty to register under § 16913).
In light of the identical issues raised in Hall and Guzman, all arguments previously raised by both parties with exception to defendant's Commerce Clause challenge will be rejected for the same reasons stated therein, and accordingly, only the three new arguments raised by the Government will be discussed further.
A. The Necessary and Proper Clause
Under the Necessary and Proper Clause, Congress may "make all Laws *199 which shall be necessary and proper" for executing its enumerated powers. U.S. CONST. art. I, § 8, cl. 18. Congress may regulate intrastate activities that do not substantially affect interstate commerce so long as the regulation is "a necessary part of a more general regulation of interstate commerce." Raich, 545 U.S. at 37, 125 S. Ct. at 2217 (Scalia, J., concurring). Whether the Necessary and Proper Clause supports federal regulation of intrastate activity requires courts to consider whether the means chosen by Congress are "reasonably adapted" to achieve a legitimate objective pursuant to one of Congress's other enumerated powers. Id. Additionally, the Supreme Court explained that the analysis focuses upon whether the more general "regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, 514 U.S. at 561, 115 S. Ct. at 1630-31; see also Raich, 545 U.S. at 38, 125 S. Ct. at 2218 (Scalia, J., concurring).
The Government contends that the regulation of sex offenders' intrastate activity pursuant to § 16913 is a necessary part of a more general regulation of interstate commerce, i.e., the tracking of sex offenders' across state lines. In general, the Government asserts that Congress may regulate sex offenders' intrastate activities, including when they move to a new home within the same state, change their name, graduate from school, or change jobs, because the regulation of these intrastate activities is needed to ensure the effective tracking of sex offenders who travel between states.
While the Government may presently contend that the regulation of intrastate activity under § 16913 is necessary for the effective monitoring of sex offenders' interstate travel, the fact that § 2250(a) is limited to sex offenders who travel in interstate commerce speaks otherwise. Any argument that Congress only intended to enforce SORNA's registration requirements "under circumstances supporting federal jurisdiction," see Government's Mem. of Law in Opp'n, Dkt. No. 10, 15, is irrelevant because, under the Government's Necessary and Proper Clause argument, Congress was free to criminalize sex offenders' non-compliance with SORNA's registration requirements even if they remained wholly in-state. If the regulation of sex offenders' intrastate activities is as necessary to the effective monitoring of sex offenders' interstate travel as the Government contends, Congress would have then found it appropriate to extend the criminal enforcement mechanism to include sex offenders who remained in-state, particularly in light of the Government's position that the intrastate activity is subject to federal regulation. Congress's decision to limit the criminal penalty statute to sex offenders who travel between states precludes the Government from arguing that § 16913 is constitutional under the Necessary and Proper Clause. The reality of SORNA is that Congress either determined § 16913 was not sufficiently necessary to the interstate tracking of sex offenders so as to criminalize all instances of non-compliance, or alternatively, criminal sanctions were limited to sex offenders who travel in interstate commerce in an attempt to bolster the constitutionality of the statutory scheme and sidestep the Supreme Court's jurisprudence established in Lopez. In either case, § 16913 is not a constitutional exercise of Congress's power under the Necessary and Proper Clause.
B. The Federal Obligations Created Pursuant to § 16913
The Government alternatively argues that § 16913 does not create an obligation for sex offenders to register outside of federal jurisdiction. In support of *200 this position, the Government contends that § 16913 serves a dual purpose. The Government argues that § 16913 first serves as a template for registration requirements that states must incorporate into their own registration programs or otherwise receive less federal funds. See 42 U.S.C. § 16925(a) (providing for a ten percent reduction in federal funding to any jurisdiction that fails to "substantially implement" SORNA's registration requirements); see also 42 U.S.C. § 16924(a) (affording states until July 27, 2009 to implement the registration requirements). With respect to this first purpose, the Government repeats its spending powers argument in support of why § 16913 is constitutional. "The second purpose of the registration requirements is to impose an obligation on sex offenders that may be enforced through federal criminal sanctions when a violation occurs under circumstances supporting federal jurisdiction, such as the failure to register following interstate travel or failure to register by a person convicted of a federal offense." Government's Mem. of Law in Opp'n, Dkt. No. 10, 15.
The Government contends that § 16913 could not have been limited to sex offenders who traveled in interstate commerce or who were convicted of federal offenses without inhibiting the first purpose of the statute, namely, to encourage the states through Congress's spending power to adopt the uniform registration requirements. Id. at 16. However, the purported second purpose of § 16913 is not supported by SORNA's statutory language. Under the section entitled, "Declaration of Purpose," SORNA explains that the statute was enacted "to protect the public from sex offenders" and that Congress enacted the statute to "establish[] a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901. As discussed in Guzman, 582 F.Supp.2d at 313, SORNA's stated purpose indicates Congress's intention to create uniform, national registration requirements; § 16901 does not demonstrate an intention to track sex offenders only when they cross state lines.
The Government may not portray § 16913 as an exercise of Congress's spending powers while simultaneously asserting that the statute creates an affirmative obligation under federal law for sex offenders to update their registration with state sex offender registries. Either SORNA represents Congress's attempt to encourage states to adopt the registration requirements under § 16913 or the statute unconstitutionally creates a federal obligation for sex offenders to register regardless of whether they remain in-state or were convicted of purely a local sex offense.[3] Section 16924(a) expressly provides a deadline for states to adopt the uniform registration requirements and § 16925(a) imposes a penalty for states' failure to do so. Significantly, none of the fifty states have yet to implement SORNA's registration requirements. In light of §§ 16901, 16924(a) and 16925(a), the Government's argument that § 16913 serves a dual purpose is unpersuasive and does nothing to overcome the fact that *201 Congress may not constitutionally impose a registration requirement onto all sex offenders regardless of whether they remain wholly in-state.
C. Efforts to Solve a National Problem that Defies a Local Solution
The Government also argues that SORNA, including the registration requirements established under § 16913, is a proper exercise of Congress's Commerce Clause power because the statute addresses a national problem that the states are incapable of solving on their own. The Government relies upon United States v. Sage, 92 F.3d 101 (2d Cir.1996) in support of its argument that the states' difficulties tracking sex offenders validates the federal regulation of sex offenders' intrastate activity. In Sage, the court held that Congress, pursuant to its Commerce Clause power, could permissibly criminalize a parent's failure to pay child support for a child residing in another state. Id. at 105-07.
The Government's reliance upon Sage is misguided because the Government presumes that § 16913 regulates commercial transactions related to economic activity. Unlike § 16913, the statute at issue in Sage intended to "prevent the frustration of an obligation to engage in commerce." Id. at 105-06. The court explained that "[b]ecause it presupposes an order of a State court imposing an obligation to pay money, the Act concerns transactions related to economic activity." Id. at 107.
In contrast, § 16913 establishes an obligation to update one's sex offender registration with state sex offender registries, thereby falling outside the category of "transactions related to economic activity." The Commerce Clause, although broad in its scope, does not grant Congress unlimited authority to enact legislation intended to address any national issue, let alone registration requirements for sex offenders. Rather, regulated activity must fall within the three categories established in Lopez. See 514 U.S. 549, 558-59, 115 S. Ct. at 1629-30. The Sage court explained that "[n]one of the concerns in the Lopez opinion is [sic] at stake in this case" because the statute under consideration regulated economic activity. Although the Sage court explained that "Congress has often passed legislation to help the States solve problems that defy local solution," each of the court's examples concerned statutes that regulated inherently economic activity. Sage, 92 F.3d at 105 (citing Perez v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357, 1359, 28 L. Ed. 2d 686 (1971) (evaluating the constitutionality of the Consumer Credit Protection Act); United States v. Sheridan, 329 U.S. 379, 384, 67 S. Ct. 332, 335, 91 L. Ed. 359 (1946) (considering whether the National Stolen Property Act was constitutional); United States v. Bishop, 66 F.3d 569, 579 (3rd Cir.1995) (determining the constitutionality of the Anti Car Theft Act)).
The argument with respect to states' difficulty with tracking sex offenders is unpersuasive for the same reasons that the regulation of sex offenders' intrastate activity is not substantially related to interstate commerce. Sage and its prior cases presupposed that the statutes under consideration regulated commercial, economic activity. Therefore, § 16913 is an unconstitutional exercise of Congress's legislative authority irrespective of the challenges states are presented with when tracking sex offenders.
D. Cross-Motion for Discovery
The Government moves for discovery of evidence the defendant intends to introduce during his case in chief pursuant to Federal Rule of Criminal Procedure 16(b)(1). In light of the decision to grant *202 defendant's motion to dismiss the Indictment, the Government's cross-motion will be denied as moot.
IV. CONCLUSION
As already mentioned, many of the arguments raised by both parties have already been considered in Hall and Guzman. To the extent that the Government asserts new arguments in support of upholding § 16913, none of the arguments persuasively demonstrate that the statute is a proper exercise of Congress's power under the Commerce Clause. Any argument that the regulation of sex offenders' intrastate activity is necessary to effectively monitor sex offenders' travel across state lines is belied by Congress's decision to limit the criminal enforcement statute to sex offenders who fail to register after traveling in interstate commerce. If, as the Government contends, Congress has both the need and the constitutional capability to impose a federal obligation for sex offenders to update their registry regardless of whether they remain in-state or are convicted of a purely local sex offense, it would logically follow that Congress would extend § 2250(a) to cover all sex offenders.
The Government's other arguments are equally unpersuasive. SORNA's stated purpose and incentives for states to implement its registration requirements cut against the Government's position that § 16913 has a dual purpose, and in any event, Congress cannot enact a statute that is intended to merely encourage state action and also establish affirmative obligations under federal law. Last, the Government's argument that § 16913 is constitutional because it helps address a national problem that defies local solution must be rejected because the Government presumes that § 16913 regulates economic activity. Section 16913 is easily distinguishable from the statute considered in Sage and the cases cited therein. Therefore, § 16913 unconstitutionally establishes a federal obligation for sex offenders to update their registration regardless of whether they remain in-state or were convicted of a purely local sex offense, and as a result, any conviction under § 2250(a) is likewise unconstitutional because a defendant's obligation to register pursuant to § 16913 is a predicate for conviction.
Accordingly, it is
ORDERED that
1. Defendant's motion is GRANTED;
2. The Government's motion is DENIED; and
3. The Indictment is DISMISSED.
IT IS SO ORDERED.
NOTES
[1] In Guzman, the Government conceded that Wickard and Raich regulated intrastate activity that was necessarily economic, whereas sex offenders' intrastate activity is of a non-economic nature. Despite this concession, the Government cited Raich in support of its argument that federally regulated intrastate activity need not be considered "commercial" so long as the activity had a substantial economic effect upon interstate commerce. Guzman distinguished Wickard and Raich on the grounds that, even if the statutes at issue in those cases did not concern commercial activity because the goods were produced locally and for personal consumption purposes only, the regulated intrastate activity nonetheless focused upon the production of commodities as opposed to the sexual abuse of children. Guzman, 582 F.Supp.2d at 310-11.
[2] The Passaro Court held:
It is rational to conclude that maintaining a comprehensive national registry of sex offenders affects interstate commerce. For individuals engaging in any commerce-related activity, personal safety and safety of their families is a prime concern. Economic development in certain areas may be encouraged or discouraged depending on the safety level. Requiring sex offenders to register within three days of a change in residence is a means reasonably adapted to achieving SORNA's purpose.
Passaro, No. 07-CR-2308-BEN, at 9.
[3] Congress delegated to the Attorney General the authority to determine the applicability of § 16913 to sex offenders prior to the states' implementation of the registration requirements. See 42 U.S.C. § 16913(d). In 2007, the Attorney General promulgated the federal regulation specifying that SORNA applied to sex offenders irrespective of whether a jurisdiction has implemented the statute's registration requirements. See 28 C.F.R. § 72.3 (2007); see also 72 Fed. Reg. 30228 (May 30, 2007). Although the actual delegation of authority did not violate the non-delegation doctrine, the constitutionality of the statutory scheme remains subject to challenge by defendant.
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228 N.J. Super. 320 (1988)
549 A.2d 874
STATE OF NEW JERSEY AND THE NEW JERSEY EDUCATIONAL FACILITIES AUTHORITY, PLAINTIFFS-APPELLANTS,
v.
SCIENTIFIC COATING CO., INC., UNITED STATES FIDELITY AND GUARANTY CO., SCRIMENTI/SHIVE/SPINELLI/PERANTONI, ARCHITECTS AND TESTWELL CRAIG TESTING LABORATORIES, INC., DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued September 26, 1988.
Decided October 21, 1988.
*321 Before Judges SHEBELL, GRUCCIO and LANDAU.
Valerie L. Egar, Deputy Attorney General, argued the cause for appellants (W. Cary Edwards, Attorney General, attorney, Michael R. Clancy, Deputy Attorney General, and Benjamin Clarke, Deputy Attorney General, of counsel, Valerie L. Egar, on the brief and the reply brief).
Charles J. Casale, Jr., argued the cause for respondent Testwell Craig Testing Laboratories, Inc. (David A. Gies, on the brief).
Waters, McPherson, McNeill, Fitzpatrick, attorneys, submitted a letter brief on behalf of Scientific Coating Co., Inc. and Jerry and Joan Goldfarb (Stephen E. Milazzo, on the letter brief).
The opinion of the court was delivered by SHEBELL, J.A.D.
*322 Plaintiffs State of New Jersey and the New Jersey Educational Facilities Authority appeal, on leave granted, the dismissal on statute of limitations grounds of their suit against defendant Testwell Craig Testing Laboratories, Inc. (Testwell Craig). Plaintiffs urge that under the doctrine of nullum tempus occurrit regi (nullum tempus) the statute of limitations cannot bar this claim.
On or about April 21, 1977, the State Division of Building and Construction authorized defendant Scrimenti/Shive/Spinelli/Perantoni Architects (Scrimenti) to design and prepare plans for the removal of asbestos material from Bohn Hall, a dormitory at Montclair State College. An agreement was entered into between the State and Scrimenti on or about July 14, 1977, for the asbestos removal plans. On or about June 30, 1977, the State entered into a contract with Scientific Coating for the asbestos removal. United States Fidelity and Guaranty Company executed a bond, securing the faithful performance by Scientific Coating of its contractual obligations.
On or about August 8, 1977, Testwell Craig contracted with the State to perform field sampling and laboratory analysis to test for the presence of airborne asbestos fibers at Bohn Hall. Testwell Craig performed the testing and provided the State with reports indicating that airborne asbestos levels were acceptable. A final acceptance certificate on the job was signed by the architect on December 23, 1977, and issued by the State on February 3, 1978. In May 1982 and January 1983, the State found evidence of the presence of asbestos at Bohn Hall. By letter dated March 2, 1983, Scientific Coating was notified of the State's finding of asbestos and requested to remove the remaining asbestos at Bohn Hall. A memorandum was issued on March 22, 1983 discussing the presence of asbestos at the dormitory and recommending legal action against the asbestos removal contractor. Correspondence between the State and Scientific Coating followed. The State amended its complaint on September 9, 1985 to include Testwell Craig as a defendant.
*323 The statute of limitations for an action based on a contract or a tort to property is six years (N.J.S.A. 2A:14-1). If the statute of limitations is applicable, the State's claim is precluded, as Testwell Craig was not joined as a party defendant until September 10, 1985, more than seven years after Testwell Craig performed the tests, and the project was substantially completed.
The parties to this appeal agree that New Jersey Educational Facilities Authority is a division of the State and that if the doctrine of nullum tempus is otherwise applicable, the Authority is entitled to invoke it. The New Jersey Educational Facilities Authority is unquestionably entitled to the status of a state authority in this action. N.J.S.A. 18A:72A-4a states that the New Jersey Educational Facilities Authority, "shall constitute a political subdivision of the state established as an instrumentality exercising public and essential government functions...."
The nullum tempus doctrine means, "[t]ime does not run against the king." Black's Law Dictionary 963 (5th ed. 1979). It "springs from the superior and pre-eminent policy to preserve public rights, revenues and property from injury and loss otherwise resulting from the inadvertence or neglect of public agents." Trustees, etc., Public Schools v. The Ott and Brewer Co., 135 N.J. Eq. 174, 177 (Ch. 1944). The authorities in other jurisdictions are split as to whether the bar of the statute of limitations is applicable against the State in tort and contract actions. See Bd. of Trustees of Bergen Com. Col. v. J.P. Fyfe, 192 N.J. Super. 433 (App.Div. 1983) (and citations therein at 436), certif. den. 96 N.J. 308 (1984).
We believe that the holding in Bd. of Trustees of Bergen Com. Col. v. J.P. Fyfe, 188 N.J. Super. 288, 296 (Law Div. 1982), aff'd 192 N.J. Super. 433 (App.Div. 1983), certif. den. 96 N.J. 308 (1984), should be limited to the proposition that a county college is not the kind of body which enjoys the appurtenances of sovereignty, and thus may not invoke the doctrine of nullum tempus. We do not agree that because New Jersey *324 has modified its immunity from contractual liability, N.J.S.A. 59:13-1 et seq., and from liability in tort, N.J.S.A. 59:1-1 et seq., that it is not entitled to the benefit of nullum tempus. See Port Authority of N.Y. and N.J. v. Bosco, 193 N.J. Super. 696, 700 (App.Div. 1984). The fact that the State has limited its sovereign immunity does not mean that its exemption from statutes of limitation is revoked as well. There is no inextricable link between the two. Ibid. We stated in Bosco, "[i]t is settled in the State of New Jersey that the Statute of Limitations does not run against the State or any of its agencies and subdivisions." Id. at 699-700.
We hold that, as an arm of state government, the Educational Facilities Authority is entitled to assert the doctrine of nullum tempus. As stated in Trustees, etc., Public Schools, 135 N.J. Eq. at 177, the doctrine of nullum tempus stands for the proposition that "a statute of limitation should not be construed to encircle the government unless it is manifest from the mischief to be reached, the express language employed or by necessary implication therefrom, that the government was in the contemplation of the legislature." We reaffirm that a statute of limitations is not applicable to the government unless included by express language or necessary implication. Veterans Loan Authority v. Wilk, 61 N.J. Super. 65, 70 (App.Div. 1960). The Supreme Court has stated, "[o]rdinarily the federal and state governments are immune from the operation of general statutes of limitations.... [h]owever, there would seem to be nothing to prevent the federal and state governments from forthrightly providing that claims by them or their governmental divisions shall be barred if not pursued within a stated period of time." Eureka Printing Co. v. Div., etc., Dept. of Labor and Industry, 21 N.J. 383, 387-88 (1956). See also State v. American-Hawaiian Steamship Co., 29 N.J. Super. 116, 138 (Ch. Div. 1953); Hyland v. Kirkman, 157 N.J. Super. 565, 581 (Ch.Div. 1978); Environmental Protect. Dep't v. Ventron Corp., 182 N.J. Super. 210, 226 (App.Div. 1981), aff'd as mod., 94 N.J. 473 (1983).
*325 We need not focus our analysis at this time on whether the doctrine should be applied to both governmental and proprietary functions as the controversy here clearly concerns a governmental function. See Rutgers v. Piluso, 60 N.J. 142, 153 (1972).
If a party dealing with the State desires the protection of the statute of limitations from claims by the State, the party may negotiate to obtain such protection. In that way the policy of the State to preserve public rights can be protected. We do not envision that our holding will cause injustice to parties doing business with the State or its governmental agencies. Prejudice to a party denied the benefit of the statute of limitations caused by the passage of time may be considered as a basis to provide relief where required in the interests of fairness. Skulski v. Nolan, 68 N.J. 179, 198 (1975); Christian Science Bd. of Directors v. Evans, 191 N.J. Super. 411, 425 (Ch.Div. 1983), aff'd in part, rev'd in part, 199 N.J. Super. 160 (App.Div. 1985), aff'd 105 N.J. 297 (1987); Dambro v. Union Cty. Pk. Comm., 130 N.J. Super. 450, 457 (Law Div. 1974).
REVERSED AND REMANDED.
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178 Cal. App. 4th 1092 (2009)
THE PEOPLE, Plaintiff and Appellant,
v.
CHAD JOSEF MEDLIN et al., Defendants and Respondents.
No. B209614.
Court of Appeals of California, Second District, Division Six.
October 29, 2009.
*1094 Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Appellant.
Wasserman, Comden & Casselman, Mark S. Gottlieb, Leonard J. Comden and Louis Samonsky, Jr., for Defendants and Respondents.
OPINION
COFFEE, J.
The People of the State of California appeal from an order finding registered nurse Chad Josef Medlin and licensed vocational nurse (LVN) Sandra Marie Monterroso factually innocent of felony charges of dependent adult abuse likely to produce great bodily harm or death in violation of Penal Code section 368, subdivision (b)(1).[1] The order followed their acquittal by jury. The court directed destruction of records of their arrests pursuant to section 851.8, subdivisions (b) and (c). We issued a writ of supersedeas staying the destruction of records pending appeal.
Appellant contends that, notwithstanding the acquittals, reasonable cause exists to believe that respondents committed the offense of which they were charged. We agree and reverse.
*1095 FACTUAL AND PROCEDURAL BACKGROUND
Jeremiah Allen nearly drowned in a surfing accident in October 2003. He was rendered semicomatose and paraplegic. In January 2004, he was admitted to CareMeridian, a long-term care facility at which respondent Medlin was director of nursing and Monterroso was employed as an LVN. CareMeridian is a 12-bed facility that specializes in accident victims. It was about half full while Allen was there. Allen died at the facility on the afternoon of June 2, 2004, because his tube feedings had been introduced into his abdominal cavity instead of his stomach.
Events Leading to Allen's Death
From the time of his accident, Allen had been fed with a size 20 gastrostomy tube, or "G-tube." A G-tube passes directly into the patient's stomach from his belly, through the abdominal cavity, bypassing the esophagus. Standing physician's orders called for a size 14 French G-tube and authorized G-tube replacement if the tube became blocked (occluded) or was pulled out. By the time of trial it was clear that the discrepancy in tube size did not contribute to Allen's death.
On June 2 at 3:00 a.m., Monterroso found Allen's G-tube lying beside him on the bed. She did not know how long it had been out. She noted in his chart that he had pulled it out forcibly, but she did not see that happen. She did not call Allen's physician or alert Medlin, and she did not check the standing orders. She had not recently been trained in G-tube placement.[2]
Monterroso replaced the G-tube. She used two methods to try to verify that she had placed the tube in the stomach. First, she used a stethoscope to listen to air passing from a syringe into the stomach (auscultation) and heard a whooshing sound in the abdominal area. Next, she unsuccessfully attempted to aspirate (pull up) gastric fluids. From the absence of gastric fluid, she concluded Allen's stomach was empty.
Monterroso proceeded with Allen's scheduled feedings after 3:00 a.m. and again at 6:00 a.m. She reported in his chart that he tolerated his 3:00 a.m. feeding well, but in the medication checkout record she noted that about 4:00 *1096 a.m. she gave Allen ibuprofen for "discomfort with G-tube removal" and Ativan for "G-tube reinserted, (increased) anxiety." She did not recall any problems with the 6:00 a.m. feeding.
After his 3:00 a.m. feeding, Monterroso noted that Allen was sweating, grimacing and groaning. She testified that she was not concerned because she had seen him sweat, grimace and groan before. She left her shift at 7:00 a.m. without notifying Allen's physician or Medlin of Allen's condition. She did inform the morning LVN, Patsy Carper, that she had replaced Allen's feeding tube. Before Monterroso left Allen appeared restful to her.
Carper observed that Allen was sweating and straining. She testified that he always sweated and strained before having a bowel movement. Carper had worked at the facility for two weeks and had not completed orientation. Before giving Allen his medications and morning feeding, Carper tried to aspirate gastric fluids to ensure that the G-tube was in the stomach. She got "very little contents." She concluded that this was because Allen had not had a bowel movement. She later told a State Department of Public Health (DPH)[3] investigator that the 9:00 a.m. feeding "went down slowly," but that she was able to complete it after she got him upright on a tilt table.
About 7:00 a.m., certified nursing assistant, Lazara Lavano, took Allen's vital signs. She noticed that Allen was pale and felt that something was wrong. She had not seen him this way before. She had cared for Allen since his arrival at the facility six months earlier.
Medlin arrived at the facility sometime after 9:00 a.m. About 10:00 a.m., Lavano and another staff member put Allen in a therapeutic standing frame. Lavano saw that he was breathing fast and perspiring. Allen's therapist saw that he was pale, sweating profusely and his eyes were wide open whereas they were usually closed. The therapist was new at the facility and had treated Allen only once before.
Staff returned Allen to his bed to rest before a scheduled therapy session. Lavano told LVN Carper what had happened. The therapist continued checking on Allen during the morning and Allen continued to sweat profusely.
Sometime between 11:00 a.m. and noon, Lavano took Allen's vitals. He had a fever over 101 degrees. She tried to take his blood pressure but could not hear anything. Another staff member tried and also could not hear *1097 anything. Lavano told the morning nurse that Allen had a fever, she could not get his blood pressure and he was pale and did not look good. Lavano used ice to try to cool Allen.
About 11:00 a.m., Carper asked Medlin to check Allen because he was sweating. Medlin entered Allen's room. Carper told Medlin that Lavano could not hear Allen's blood pressure, but that it was fine because she, Carper, was able to get his blood pressure using palpitation. Medlin, who was sick with a cold, left the room and returned sometime before 1:00 p.m. When he returned, he said, "Oh, he's fine. He's probably competing with me."
Between 11:30 a.m. and noon, Medlin spoke by phone with Allen's treating physician about a routine meeting. Medlin did not mention Allen's condition.
By 1:30 p.m., Allen's temperature was 101.2. Carper reported this to Medlin. She gave Allen ibuprofen.
Sometime during the afternoon a friend of Allen's came to visit. Allen's eyes were wide open and he looked desperate. Allen's eyes were usually closed. The friend had visited several times before for about an hour each time. He called for help and nurses came in and said, "[Y]ou have to leave now."
About 1:00 p.m., Allen's physician received a message that Medlin was trying to report a change in Allen's condition. The physician called Medlin's cell phone between 1:00 p.m. and 1:15 p.m. Medlin told the physician that Allen's pulse was under 60 and his oxygen saturation levels had dropped dramatically. Medlin did not tell the physician that Allen's G-tube had been changed. The physician told Medlin that Allen needed to be sent to the emergency department.
Dispatch records showed that facility staff called an ambulance company about an hour later, at 3:21 p.m., requesting a routine transfer of a patient with fever. The call did not come through 911 and there was no dispatch note that transfer was urgent.[4] Paramedics arrived within eight minutes at 3:29 and found Allen dead. They reported that he had rigor mortis in the jaw, his skin was cold and he had lividity. These signs indicated that he had been dead for at least half an hour. Nurses were trying to help Allen breathe with a bag device when the paramedics arrived.
*1098 Medlin told a DPH investigator that he first learned of Allen's deteriorating condition between 11:00 a.m. and noon. He corrected that time to 1:45 p.m. after he reviewed notes. He said he first called Allen's physician at 2:30 p.m., staff called the ambulance twice, and it arrived about 2:45 p.m. Medlin said he did not tell staff to call 911 because he did not think Allen's condition was that bad. He said Allen's condition changed just as the paramedics walked in.
An autopsy determined that Allen's cause of death was peritonitis: an infection of the lining of the abdominal cavity which can develop and cause death within hours. The G-tube was found in Allen's abdominal cavity, and the cavity was filled with all of the formula and water that he had been given in the 12 hours before death.
Department of Public Health
The DPH conducted an investigation. It issued a Class AA citation to the facility for "failure to identify care needs based on continuing assessment." Class AA citations are the most severe. They are issued when a regulatory violation causes the death of a patient in a care facility. (Health & Saf. Code, § 1424, subd. (c).) In January of 2005, the DPH referred a patient abuse complaint to the Department of Justice (DOJ).
Department of Justice Investigation
The DOJ conducted an investigation. It reviewed records and interviewed Medlin, Carper, Lozano, Allen's physician, the gastroenterologist and the paramedics.[5]
A nurse evaluator for the DOJ reached the conclusion that Monterroso "violated the practice of vocational nursing" in California by failing to follow the physician's orders or facility procedures for G-tube replacement. The tube replacement procedures required her to "obtain/verify the physician order," to "aspirate for stomach contents to check patency" once the tube was in place and to "document procedure results; resident's tolerance; and any other pertinent information . . . ."
Preliminary Hearing
Monterroso and Medlin were charged with dependent abuse and neglect and were held to answer after a preliminary hearing. At the preliminary *1099 hearing, the prosecution's medical expert, Loren Lipson, M.D., testified that Allen's death was caused because Monterroso used the wrong sized G-tube, among other things. Dr. Lipson was under the mistaken impression that Allen had a size 14 feeding tube until June 2.
Dr. Lipson also testified that Monterroso should have checked the physician's orders, should have called the physician to tell him that she was replacing the tube, should not have relied on auscultation to check placement and should not have interpreted the lack of gastric contents as meaning that Allen's stomach was empty. He testified that Monterroso should not have given fluid without checking or repositioning the tube after the patient became sweaty and distressed at 4:00 a.m.
According to Dr. Lipson, G-tube tracts can close up or become misaligned when the tube comes out, especially if the tube has been in place a short time. Allen's tube had been replaced six days earlier and Monterroso did not know how long the tube had been out that night.[6] Under these circumstances, she should have sent the patient to the emergency room so that a gastroenterologist could replace the tube.
Dr. Lipson testified that Medlin, as director of nursing, was responsible for ensuring nurse training in feeding tube placement, and there was no evidence that they had been trained in the recent past. He testified based on medical records that Allen was exhibiting signs and symptoms of infection between 7:00 a.m. and 3:30 p.m. consistent with inflammation of the peritoneal area. He testified that by noon Medlin was aware that Allen had severe problems and a fever with clear lungs, and that Medlin should have sent Allen to the hospital immediately.
Trial
The cases against Monterroso and Medlin were consolidated for trial. Dr. Lipson testified that both Medlin and Monterroso recklessly caused Allen's death. On cross-examination Lipson was confronted with records from Allen's initial treatment that showed Allen had always had a size 20 G-tube. Dr. Lipson said this information did not change his opinions.
*1100 Dr. Lipson testified that whenever a G-tube is pulled out the physician should be notified right away because it may have caused tearing or damage. If there is any question, the patient should be transferred to the emergency room where placement can be checked by X-ray. He testified that it is reckless not to aspirate gastric contents to ensure tube placement. If gastric fluids cannot be aspirated, the tube may be in the abdominal cavity instead of the stomach. He said that there is always some mucus or digestive fluid in the stomach. Lipson testified that auscultation does not verify proper placement because a whooshing sound can be heard in the abdominal area whether the tube is in the stomach or any other cavity. He also said that it is important to be consistent with tube size because a change can cause the path to the stomach to dislodge or open.
Dr. Lipson testified that Medlin was reckless because he did not immediately transfer Allen to a hospital when he showed signs of distress, fever and dropping oxygen saturation. He testified that signs of peritonitis include sweating, grimacing or groaning, rapid breathing and a drop in blood pressure and that peritonitis is very painful.
At the close of the prosecution's evidence respondents moved for dismissal pursuant to section 1118.1 on the ground that the prosecution's expert had been completely discredited. The trial court denied the motion, stating that it would defer to the jury on the question of credibility.
A nursing consultant and a physician testified on behalf of respondents that their care was not reckless and fell within the standard of care. The nurse testified that gastric contents should be aspirated, but it is not unusual to get no gastric contents. The physician (who had never placed a tube) testified that absence of gastric contents can mean it is time to feed the patient. They both testified that Allen's appearance and behavior were not unusual for Allen, based on nursing notes. Both testified that Medlin did not do anything wrong by waiting to call an ambulance. The jury acquitted respondents of all charges.
Motions for Determination of Factual Innocence
Both defendants moved for determinations of factual innocence. (§ 851.8, subd. (e).) In opposition, the prosecution submitted the investigation records of the DPH and the DOJ.
*1101 The court granted the motions. The court first stated that its tentative decision was to deny the motions because, "While I think they are factually innocent, I can't find that there was no probable cause or just cause to initiate the prosecution based on the information [the prosecution] had at that time ...." After hearing argument, the court granted the motions because "evidence did come before the People that indicated that their total theory was wrong," and it did "still feel that the defendants are factually innocent." When asked to identify the evidence to which the court referred, the court said, "the fact that there was a 20-gauge ... needle [sic] in place from the beginning, [is] one thing. And I don't think that the failure to call a doctor, while it was a violation of an order, I don't think it had anything to do with gross negligence or criminal negligence."
DISCUSSION
An order granting a petition for factual innocence is appealable by the prosecution. (§ 851.8, subd. (p)(1); People v. Adair (2003) 29 Cal. 4th 895, 909 [129 Cal. Rptr. 2d 799, 62 P.3d 45] (Adair).) We apply an independent standard of review and consider the record de novo to decide whether reasonable cause exists to believe that the person arrested committed the crime charged. "[A]lthough the appellate court should defer to the trial court's factual findings to the extent they are supported by substantial evidence, it must independently examine the record to determine whether the defendant has established `that no reasonable cause exists to believe' he or she committed the offense charged. (§ 851.8, subd. (b).)" (Adair, at p. 897.) This stringent standard of review is necessitated by a legislative "intent to limit substantially the scope of relief under section 851.8." (Id. at p. 905.)
(1) "[A]cquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt." (United States v. One Assortment of 89 Firearms (1984) 465 U.S. 354, 361 [79 L. Ed. 2d 361, 104 S. Ct. 1099].) A finding of factual innocence "shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (§ 851.8, subd. (b).) "[T]he record must exonerate, not merely raise a substantial question as to guilt." (Adair, supra, 29 Cal.4th at p. 909.)
In considering the petition, the court applies an objective standard. (Adair, supra, 29 Cal.4th at p. 905.) The hearing is not limited to the evidence presented at trial. (Id. at pp. 903-904.) The court may consider any evidence relied upon to arrest and charge, including "declarations, affidavits, police *1102 reports, or any other evidence submitted by the parties which is material, relevant and reliable." (§ 851.8, subd. (b).) Even suppressed evidence is considered. (Adair, at p. 905, fn. 3.) The court may consider facts disclosed after arrest. (Id. at p. 905, fn. 4.)
(2) A person petitioning for a finding of factual innocence has the initial burden to demonstrate the absence of reasonable cause. To meet this burden, the petitioner must show more than a viable defense to the crime. He or she must establish, "`that there was no reasonable cause to arrest him in the first place.'" (Adair, supra, 29 Cal.4th at p. 905, quoting People v. Matthews (1992) 7 Cal. App. 4th 1052, 1056 [9 Cal. Rptr. 2d 348].) If this burden is met, the burden shifts to the prosecution to demonstrate the existence of reasonable cause. (§ 851.8, subd. (b).)
We give no deference to the trial court's subjective determination that, "I do still feel that and find that the defendants are factually innocent," because "[a] trial court's finding of factual innocence based solely on its own interpretation of the evidence does not sustain the defendant's burden any more than a failure of the prosecution to convict." (Adair, supra, 29 Cal.4th at p. 905.) The terms of the statute do "not accommodate any exercise of discretion to which the appellate court should defer." (Id. at p. 908.)
(3) Violation of section 368, subdivision (b)(1) requires proof of willful conduct that caused a dependent adult to suffer under circumstances likely to produce great bodily harm or death.[7] Respondents concede that Allen was a dependent adult in respondents' care and that he died as a result of feedings being introduced directly into his abdominal cavity.
There is legal cause to believe that respondents willfully caused Allen to suffer. The statute does not require specific intent to injure but does require criminal negligence. (§ 7; People v. Superior Court (Holvey) (1988) 205 Cal. App. 3d 51, 60 [252 Cal. Rptr. 335], disapproved on other grounds in People v. Heitzman, supra, 9 Cal.4th at p. 209, fn. 17.)
*1103 Criminal negligence requires a gross violation of an existing duty of care. (People v. Manis (1992) 10 Cal. App. 4th 110, 114 [12 Cal. Rptr. 2d 619, 12 Cal. Rptr. 619], disapproved on other grounds in People v. Heitzman, supra, 9 Cal.4th at p. 209, fn. 17.) There must be proof of "aggravated, culpable, gross, or reckless conduct, which is such a departure from the conduct of an ordinarily prudent person under the same circumstances as to demonstrate an indifference to consequences or a disregard of human life." (In re Jerry R. (1994) 29 Cal. App. 4th 1432, 1439 [35 Cal. Rptr. 2d 155].) The question is "whether a reasonable person in the defendant's position would have appreciated the risk his or her conduct posed to human life." (People v. Lara (1996) 44 Cal. App. 4th 102, 108 [51 Cal. Rptr. 2d 402].) The defendant's subjective awareness is irrelevant. (Ibid.)
There are no reported decisions describing criminally negligent medical procedures that violated section 368. Criminal convictions for violation of section 368 most commonly involve nonprofessional caregivers neglecting or abusing family members. (People v. Heitzman, supra, 9 Cal. 4th 189; People v. Matye (2008) 158 Cal. App. 4th 921 [70 Cal. Rptr. 3d 342] [adult son beat disabled mother]; People v. McKelvey (1991) 230 Cal. App. 3d 399 [281 Cal. Rptr. 359] [adult son left mother malnourished lying in excrement with insects crawling on her].)
Health care professionals, however, have been prosecuted under section 368. In People v. Superior Court (Holvey), supra, 205 Cal. App. 3d 51, the court considered a constitutional challenge to section 368 after two doctors and a nurse were held to answer on charges arising from the death of their elderly patient. That case had not yet gone to trial and the factual basis for the charges is not described in the opinion. (People v. Superior Court (Holvey), at p. 55, fn. 3.) In the wrongful death case Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal. App. 4th 963 [114 Cal. Rptr. 2d 748], the defendant health care facility had previously pled no contest to six felony counts of violating section 368 in connection with the death of three elderly patients. The plaintiffs alleged that patients were denied adequate nutrition and hydration, developed bedsores and infections after lying in their own feces and urine, experienced severe pain which was not managed, that one patient was left partially nude, and that one patient's blood infection was not diagnosed or prevented.
In this case, respondents contend that they are factually innocent of criminal neglect because the entire prosecution was based on the mistaken belief that Monterroso replaced a 14 G-tube with a 20 G-tube, contrary to the physician's standing order. This is an oversimplification.
*1104 The expert's mistake about tube size substantially undermined his credibility, but it did not negate all legal cause to suspect criminal negligence. Evidence available to the prosecution showed that Monterroso replaced a G-tube without consulting a physician. Although there was a recent history of tube dislocation, it may have been forcibly removed and she did not know how long the tube had been out. There was evidence that Monterroso did not use graduated markings on the tube provided by the manufacturer to ensure proper placement, and that she failed to recognize that the tube was improperly placed when she was unable to aspirate gastric fluids. There was evidence that she proceeded to feed Allen at 6:00 a.m. without checking with anyone, although she had already medicated Allen for distress that she attributed to the tube change. Evidence was presented that a nurse trained in G-tube replacement would appreciate the risks of misplacing a tube and the need to ensure its placement by aspirating gastric fluids. This evidence gave reasonable cause to believe that Monterroso was criminally negligent.
Medlin contends that he is factually innocence because he had no notice of Allen's change in condition until 1:45 p.m., and that he had every reason to believe Allen suffered only from a cold. Carper testified that she called Medlin to check on Allen about 11:00 a.m., because he was sweating. By this time he had a fever and two nursing assistants had been unable to hear his blood pressure. There was evidence that Medlin failed to respond to obvious signs of patient distress: Allen's fever and dropping oxygen saturation. He attributed these signs to a cold notwithstanding the fact that Allen's lungs were clear, he had no mucus, and his feeding tube had recently been replaced. There was evidence that Medlin did not call for transport to the emergency room until an hour after Allen's physician told him to and that when the facility did call the ambulance, Allen was already dead. There was also evidence that Medlin had not ensured Monterroso was properly trained in G-tube placement, that he was responsible for doing so and that the risks of improper placement are well known by nurses. These facts provided reasonable cause to believe Medlin was criminally negligent.
(4) The acquittals notwithstanding, after independent review of all of the evidence available to the prosecution we cannot conclude that "`no objective factors justified official action ....'" (Adair, supra, 29 Cal.4th at p. 909, quoting People v. Scott M. (1985) 167 Cal. App. 3d 688, 700 [213 Cal. Rptr. 456].)
*1105 DISPOSITION
The order under review is reversed and vacated.
Gilbert, P. J., and Perren, J., concurred.
NOTES
[1] All statutory references are to the Penal Code unless otherwise stated.
[2] According to facility records, Monterroso had demonstrated competency in G-tube replacement in 1998. She was terminated from the facility in 1999 for, "patient abandonment/failing to report to work." She was rehired in 2000, although her personnel records indicated that she was ineligible for rehire.
[3] The functions of the former State Department of Health Services were transferred to the new State Department of Public Health in 2007, after Allen's death and before trial. (Health & Saf. Code, § 131050, added by Stats. 2006, ch. 241, § 34, eff. July 1, 2007.) For simplicity, we will refer to both agencies as the DPH.
[4] The physician testified that he expected Medlin to call 911. He did not specifically instruct him to.
[5] Monterroso had moved to Las Vegas. The DOJ scheduled an interview with her in her home in July 2005, but she canceled the interview and did not return subsequent calls. She had moved out of her Las Vegas home suddenly on June 30, 2005. Monterroso was arrested later that month.
[6] A week before Allen's death, his father noticed a dark coffeelike substance coming up from Allen's G-tube. Allen's father alerted Allen's treating physician. On May 28, 2004, gastroenterologist Ahmed Rashed, M.D., performed an esophagogastroduodenoscopy and found that the feeding tube had become displaced. The tube had lodged in the opening of the small intestine (the duodenal bulb) where it was causing irritation. Dr. Rashed returned the tube to the correct position in the stomach. The G-tube was then used to feed Allen without incident until June 2.
[7] Monterroso was charged with willfully placing Allen in a situation where his person or health was endangered under circumstances likely to produce great bodily harm or death. (§ 368, subd. (b)(1).) Medlin was charged with willfully causing or permitting Allen to suffer unjustifiable pain or suffering under circumstances or conditions likely to produce great bodily harm or death and having a legal duty to supervise and control persons who caused or inflicted unjustifiable pain or mental suffering on Allen, and failing to supervise or control that conduct. (§ 368, subd. (b)(1); People v. Heitzman (1994) 9 Cal. 4th 189, 212 [37 Cal. Rptr. 2d 236, 886 P.2d 1229].)
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178 Cal. App. 4th 1317 (2009)
RONALD SIMANDLE et al., Plaintiffs, Cross-defendants and Appellants,
v.
VISTA de SANTA BARBARA ASSOCIATES, LP, Defendant, Cross-complainant and Respondent.
No. B209735.
Court of Appeals of California, Second District, Division Six.
November 4, 2009.
*1319 Martin Cohen & Associates and Dennis Shea for Plaintiffs, Cross-defendants and Appellants.
Hart, King & Coldren, Robert S. Coldren, Robert G. Williamson, Jr., and Daniel T. Rudderow for Defendant, Cross-complainant and Respondent.
OPINION
YEGAN, J.
Ronald Simandle and Warren Simandle appeal from a judgment entered after the trial court found that appellants abandoned a statutory right under the Mobilehome Residency Law (Civ. Code, §§ 798, 798.78, subd. (a)) to sell their parents' mobilehome at the Vista de Santa Barbara Mobilehome Park.[1] The trial court ruled that park owner, respondent Vista de Santa Barbara Associates, LP, could remove the mobilehome at appellants' expense. (§ 798.78, subd. (b).)
(1) Appellants argue, inter alia, that the law abhors a forfeiture. This is true but the law also abhors a public and private nuisance which, in this case, lingered for months on end. (Civ. Code, §§ 3479-3481; Code Civ. Proc., § 731.) "Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it." (Civ. Code, § 3483.) We affirm.
(2) The Mobilehome Residency Law (MRL; Civ. Code, § 798.78, subd. (a)) provides that an heir who gains ownership of a mobilehome in a mobilehome park through the death of the tenant-mobilehome owner, has the *1320 right to sell the mobilehome in situ providing the homeowner's rent, utilities and maintenance obligations arising after the homeowner's death are satisfied until the mobilehome is sold.[2] (See Friedman, Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2008) ¶ 11:260, pp. 11-75 to 11-76 (rev. # 1, 2005); 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 782, p. 911.) Section 798.78, subdivision (b) states in pertinent part: "In the event that the heir . . . does not satisfy the requirements of subdivision (a) with respect to the satisfaction of the homeowner's responsibilities and liabilities to the management which accrue pursuant to the rental agreement in effect at the time of the death of the homeowner, the management shall have the right to require the removal of the mobilehome from the park." Thus, appellants, and persons similarly situated, have a valuable right. But, like other rights, this right can be forfeited.
Facts and Procedural History
In 2005, appellants (brothers) inherited their parents' mobilehome located at Vista de Santa Barbara Mobilehome Park, space 35, Carpinteria. Brothers quarreled over the inheritance and let the vacant mobilehome fall into disrepair.
Brothers decided to sell the mobilehome and requested that Park Manager Ruth Bevington inspect it. In a December 5, 2005 letter, Bevington listed what repairs had to be done before the mobilehome could be put on the market.
Brothers did some yard work but failed to correct the deficiencies set forth in Bevington's letter. Bevington testified that the mobilehome and park space were in "really bad" shape. The mobilehome had a broken window, a rotted fence, steps in disrepair, debris and combustible material, a filthy brown ooze running down the front and side of the home, and smelled of sewage.
At Bevington's request, Nick Alexakis of California's Department of Housing and Community Development (HCD) inspected the mobilehome. Alexakis issued a September 16, 2006 report, citing the mobilehome owner *1321 for Mobilehome Parks Act (Health & Saf. Code, § 18200 et seq.)[3] violations: a rotted deck, steps, and guardrails; a bent carport awning column; a blocked exit door; combustible material behind a shed within three feet of the rear lot line; and electric code violations.
Brothers fixed the code violations but again failed to repair the problems listed in Bevington's letter. On October 19, 2006, respondent served a seven-day "Notice To Correction Violations of Rental Agreement Or Surrender Possession." (§ 798.56, subd. (d).) When no corrective action was taken, respondent served a 60-day notice to terminate the tenancy and remove the mobilehome from the park. (§§ 798.55-798.77.)
Brothers sued for declaratory relief and damages. Respondent filed a cross-complaint for trespass, ejectment (removal of the mobilehome) and declaratory relief.
Michael Cirillo, a mobilehome park expert, testified that the mobilehome was not habitable, had a market value of $13,806, and required $30,000 in repairs before it could be sold. He photographed the mobilehome which showed a wide assortment of electrical, drainage, roof, plumbing, and maintenance problems.
The trial court concluded that any right to sell the mobilehome in the park hinged on brothers' statutory duty to maintain the home in accordance with park rules and the MRL. (§ 798.78, subd. (a).) It found that brothers had ample opportunity to make repairs but did "literally nothing for over a year to protect and secure their rights in the mobile home space. They had been provided the park rules as well as a copy of the [M]obilehome [R]esidency [L]aw. Their failure to read, let alone abide by the rules, is the source of their loss, not any action by the park." The trial court awarded respondent $400 a month rent plus attorney fees and authorized the removal of the mobilehome at brothers' cost and expense. Brothers filed a notice of appeal about a month after respondent moved the mobilehome out of the park.
Estoppel
Brothers contend that repairs were made, estopping respondent from claiming that brothers no longer had the right to sell the mobilehome in the park. In November 2006, HCD reported that all the code violations had been corrected.
*1322 (3) Although brothers corrected the code violations, most of the maintenance problems listed in Bevington's December 2005 letter were not fixed. It was uncontroverted that the mobilehome was in disrepair for quite some time and remained so at trial. The trial court reasonably concluded that correction of the code violations did not estop respondent from seeking an order to remove the mobilehome. Mobilehome Parks Act remedies to correct code violations are cumulative and do not restrict "any remedy, provisional or otherwise, provided by law. . . ." (Health & Saf. Code, § 18423.)
Brothers claim that respondent waited too long to bring the ejectment action but there was no laches bar. The trial court found that respondent "acted with restraint in permitting two warring brothers over a year to decide what they wished to do with the one remaining, declining asset left to them upon the death of their parents. They gave ample opportunity for the brothers to take responsibility for the care of the home, giving several notices prior to the critical notice of termination of October 26, 2006. The fact that the [seven-day] notice of violation and the notice of termination came so closely together in time is of little significance, for the Simandles had done literally nothing for over a year to protect and secure their rights in the mobilehome space." This finding is supported by the record.
Waiver
(4) Brothers claim that respondent, in serving the 60-day notice of termination, waived any right under the MRL to remove the mobilehome. The MRL, however, requires that a park owner serve the 60-day notice before removing a mobilehome.[4] (§ 798.55, subd. (b)(1); Friedman, Cal. Practice Guide: Landlord-Tenant, supra, ¶ 11:150, p. 11-55 (rev. # 1, 2007).) Here the notice stated: "you must remove your mobilehome from the Park on or before December 25, 2006. If you fail to do so, legal proceedings will be commenced against you to recover possession of the space you occupy in the mobilehome park and to recover a judgment for damages for each day you continued to occupy the space beyond the sixty (60) day period."
Brothers had no right to maintain a park nuisance. (See § 798.88; Friedman, Cal. Practice Guide: Landlord-Tenant, supra, ¶ 11:277.12, p. 11-80.3 (rev. # 1, 2005).) Respondent's managing general partner, David Robbins, testified *1323 that the mobilehome was "dilapidated, [and] unkempt. . . . It was filthy outside. The inside was a wreck . . . [and] [t]here was an abandoned car out in front and debris."
(5) Nor was there an express or implied waiver of respondent's statutory right to remove the mobilehome. (See, e.g., § 798.77 [waiver of MRL in rental or sale agreement is void and contrary to public policy]; Friedman, Cal. Practice Guide: Landlord-Tenant, supra, ¶ 11:235, p. 11-68 (rev. # 1, 2007).) The MRL, which regulates sales and transfers of mobilehomes in parks, is intended to protect management, homeowners, purchasers, and park residents. (SC Manufactured Homes, Inc. v. Canyon View Estates, Inc. (2007) 148 Cal. App. 4th 663, 673-674 [56 Cal. Rptr. 3d 79].)
Settlement Letter
Brothers argue that the trial court erred in not considering a November 28, 2006 settlement letter entitled "CONFIDENTIAL SETTLEMENT COMMUNIQUE." The letter stated that respondent would consent to "transfer" (i.e., sale) of the mobilehome "contingent upon" brothers making the necessary repairs.
After the trial court granted an in limine motion to exclude evidence of settlement discussions, brothers questioned HCD Inspector Alexakis about the letter. The trial court ruled that the letter was subject to the in limine order. Similar objections were sustained when brothers offered the settlement letter as a party admission.
(6) It is well established that statements made during settlement negotiations are not admissible to show liability. (Evid. Code, § 1152, subd. (a); C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal. 3d 1, 13 [151 Cal. Rptr. 323, 587 P.2d 1136].) Brothers' reliance upon Moving Picture etc. Union v. Glasgow Theaters, Inc. (1970) 6 Cal. App. 3d 395 [86 Cal. Rptr. 33] is inapposite and holds that an admission made independent of a settlement negotiation may be admissible. (See Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2009) § 36.17, p. 866.)
Brothers contend that the settlement letter was admissible to show Bevington's bias and prejudice as an adverse witness. (See, e.g., Moreno v. Sayre (1984) 162 Cal. App. 3d 116, 126 [208 Cal. Rptr. 444].) The trial court rejected the argument because the settlement letter was written by the park owner's attorney, not Bevington. The court found "a complete failure to produce one shred of evidence that [Bevington] acted inappropriately in seeking an inspection of a mobilehome which had, for all intents and purposes, been abandoned for over a year by the Simandle brothers." *1324 Assuming, arguendo, that the trial court erred, it is not reasonably probable that appellants would have obtained a more favorable result had the letter been considered for impeachment purposes. (Evid. Code, § 354; Zhou v. Unisource Worldwide (2007) 157 Cal. App. 4th 1471, 1480 [69 Cal. Rptr. 3d 273].)
Conclusion
The judgment is affirmed. Respondent is awarded costs and attorney fees on appeal in an amount to be determined by the trial court on noticed motion. (§ 798.85; Del Cerro Mobile Estates v. Proffer (2001) 87 Cal. App. 4th 943, 951 [105 Cal. Rptr. 2d 5].)
Gilbert, P. J., and Perren, J., concurred.
NOTES
[1] All statutory references are to the Civil Code unless otherwise stated.
Respondents argue that the appeal is moot because the mobilehome has been removed and the park space has been rented to a new tenant. These developments do not moot the judgment for damages. "[A]n appeal will not be dismissed where, despite the happening of the subsequent event, there remain material questions for the court's determination. This qualification or exception has been applied to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed [citation], and the relief thus granted may encompass future and contingent legal rights." (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal. 2d 536, 541 [63 Cal. Rptr. 21, 432 P.2d 717].)
[2] Section 798.78, subdivision (a) provides: "An heir, joint tenant, or personal representative of the estate who gains ownership of a mobilehome in the mobilehome park through the death of the owner of the mobilehome who was a homeowner at the time of his or her death shall have the right to sell the mobilehome to a third party in accordance with the provisions of this article, but only if all the homeowner's responsibilities and liabilities to the management regarding rent, utilities, and reasonable maintenance of the mobilehome and its premises which have arisen since the death of the homeowner have been satisfied as they have accrued pursuant to the rental agreement in effect at the time of the death of the homeowner up until the date the mobilehome is resold." (Italics added.)
[3] The Mobilehome Parks Act was enacted to "[a]ssure protection of the health, safety, and general welfare of all mobilehome park residents" (Health & Saf. Code, § 18254, subd. (a)(1).) Under the act, HCD promulgates and enforces regulations governing the use, maintenance, and occupancy of mobilehomes. (Health & Saf. Code, § 18207; Cal. Code Regs., tit. 25, § 1000 et seq.; see Sequoia Park Associates v. County of Sonoma (2009) 176 Cal. App. 4th 1270, 1281 [98 Cal. Rptr. 3d 669].) "Title 25" regulations are the equivalent of the Uniform Building Code.
[4] The seven-day notice was served before the 60-day tenancy termination notice. (§ 798.56, subd. (d).) "This seven-day notice of opportunity to `cure' is independent of the 60-day notice requirement: i.e., if a cure is not timely effected, management may follow-up with a 60-day notice to terminate. [¶] The [MRL] does not authorize concurrent service of both notices. Thus, management must wait the full seven days before serving the 60-day termination notice." (Friedman, Cal. Practice Guide: Landlord-Tenant, supra, ¶ 11:167, p. 11-58.1 (rev. # 1, 2006).)
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228 N.J. Super. 346 (1988)
549 A.2d 888
RISA WEITZMAN (NOW SMITH), PLAINTIFF-APPELLANT,
v.
GERALD WEITZMAN, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued September 26, 1988.
Decided October 27, 1988.
*349 Before Judges DEIGHAN and BAIME.
*350 Jack L. Wolff argued the cause for appellant (Scerbo, Kobin, Litwin & Wolff, attorneys, Jack L. Wolff on the brief).
George E. Sabbath argued the cause for respondent (Sabbath, Struble, Appelt & Ragno, attorneys, George E. Sabbath on the letter-brief).
The opinion of the court was delivered by BAIME, J.A.D.
Plaintiff appeals from a post-divorce judgment order denying her motion for reimbursement of defendant's proportionate share of college expenses she advanced on behalf of the parties' two children. Plaintiff also appeals from other provisions contained in the order denying her application for reimbursement of medical, dental and insurance expenses. Relying upon a cryptic and ambiguous order which had been entered approximately four years earlier denying plaintiff's motion requesting somewhat similar relief, the trial court apparently determined that it was divested of the power to consider the present application on the merits. We reverse.
We need not recount the facts at length. The parties were divorced on April 10, 1973. The final judgment, which incorporated a property settlement agreement, was supplemented some six months later. The supplemental judgment directed defendant to pay plaintiff $25 per week for each of the parties' two children "until emancipation," to provide Blue Cross-Blue Shield medical insurance or its equivalent for the children's benefit, and to be "responsible for extraordinary medical and dental expenses." In the latter respect, plaintiff was required to give defendant advance notice of anticipated extraordinary expenses and to permit him to have the children examined by a physician or dentist of his own choosing.
Although the paltry record is generally uninformative, it is clear that both parties confronted difficult economic plights following the divorce. At least for some period of time, plaintiff found it necessary to accept public assistance. In a similar *351 vein, defendant was sporadically employed during this period. Sometime in the autumn of 1982, plaintiff sought a court order compelling defendant to pay his proportionate share of expenses for the room, board and tuition of the parties' oldest child who had matriculated at Trenton State College. On December 17, 1982, an order was entered granting each party discovery. The matter proceeded at a desultory pace until December 1985 when the parties filed cross-motions, plaintiff's seeking a proportionate share of their daughter's college expenses, and defendant's seeking to suspend payment of child support without accumulation of arrears.
Unfortunately, the record is not altogether clear with respect to the manner in which these motions were resolved. No oral argument or evidentiary hearing was conducted. All that we have is a cryptic order signed by the then presiding judge of the Family Part, denying defendant's motion to suspend support payments. The order, which was prepared by plaintiff's attorney, contained provisions requiring defendant to pay a proportionate share of college expenses, but these portions were crossed out by the court. According to plaintiff's counsel, no appeal was taken from that order because defendant had moved to Texas and then California, and, in any event, was financially unable to contribute.
Plaintiff, who had remarried, continued to shoulder the burden of her daughter's college education. In addition, the younger of the two children ultimately graduated high school and matriculated at William Paterson College. Although she left college after three semesters, plaintiff expended $3,556.40 on her behalf during this period. Ultimately the older daughter graduated from Trenton State College. It is undisputed that plaintiff paid a total of $20,585.20 to finance her children's education.
Some three months after her daughter's graduation, plaintiff filed a motion seeking (1) reimbursement by defendant of his proportionate share of amounts paid for the children's college *352 education, (2) reimbursement of payments made to secure medical insurance as a result of defendant's alleged failure to comply with his obligation under the supplemental divorce judgment, (3) reimbursement of extraordinary medical and dental expenses and (4) payment of arrearages. In support of her application, plaintiff emphasized that defendant's mother had recently died, leaving him with the bulk of her estate. It was estimated that the value of the estate was in excess of several hundred thousand dollars. Plaintiff argued that defendant, who had remarried, was obliged to reimburse her for expenses she had incurred on behalf of the parties' two children. Although the amount of arrearages was stipulated and paid, the trial court denied the remainder of plaintiff's motion. As we have noted, the trial court relied upon the prior order denying plaintiff's motion to compel defendant to contribute to the children's college education.
We are convinced the trial court was mistaken in determining that the order entered some four years earlier had a preclusive effect upon the issues plaintiff sought to raise. Initially, we point out that the prior order contained no reference to defendant's obligation to maintain Blue Cross-Blue Shield coverage on behalf of the children. Nor did it relate in any way to amounts plaintiff had expended for the children's orthodontics. Although the record discloses that the parties had engaged in negotiations pertaining to these matters, we stress that the prior order is wholly devoid of anything suggesting that these issues had been presented to the court. Succinctly stated, the trial court was inaccurate in its statement that the question of reimbursement for medical insurance and orthodontic expenses had been resolved previously by the order of January 16, 1984.
Beyond this, we are of the view that the prior order was not of the quality which would, as the trial court perceived it, divest it of the authority to rehear the matter. As we observed previously, no oral argument or evidentiary hearing was conducted *353 on plaintiff's prior motion. No statement of reasons accompanied the order. Although the judge crossed out the portion of the proposed order requiring defendant to pay a proportionate share of the daughter's college expenses, it cannot fairly be said that this somewhat enigmatic action was intended to resolve the issue on the merits for all time. See Wanner v. Litvak, 179 N.J. Super. 607, 610-612 (App.Div. 1981). Cf. State v. Reldan, 100 N.J. 187, 203-204 (1985).
The fact that plaintiff failed to appeal from the prior order or seek clarification from the trial court did not preclude her from renewing her application. It is undisputed that defendant had left the state, and, in any event, was impecunious. It would be wholly unreasonable to require plaintiff to file a costly appeal under these circumstances. Although perhaps it would have been wise had plaintiff sought clarification or taken other action to reserve her right to such reimbursement in the future, it hardly can be said that she voluntarily waived this right by failing to take such action.
Wholly apart from these considerations, the court's determination was plainly inconsistent with the broad equitable powers of trial judges to review and modify alimony and support orders at any time, as recognized by N.J.S.A. 2A:34-23. That statute provides in pertinent part that such "[o]rders ... may be revised and altered by the court from time to time as circumstances may require." Ibid. In Lepis v. Lepis, 83 N.J. 139 (1980), our Supreme Court stressed that "[a]s a result of this judicial authority, alimony and support orders define only the present obligations of the former spouses" and "[t]hose duties are always subject to review and modification on a showing of `changed circumstances.'" Id. at 146. See also Smith v. Smith, 72 N.J. 350, 360 (1977). While we recognize that a claim of "changed circumstances" should not be a shibboleth used to open the floodgates to an avalanche of repeated motions, all seeking redress for the same perceived grievance, we are satisfied that plaintiff's motion and accompanying *354 papers presented genuine issues that should have been addressed and decided by the trial court. See Wanner v. Litvak, supra, 179 N.J. Super. at 611-612.
Since the trial court did not consider plaintiff's application on its merits, we are obliged to reverse and remand for further proceedings. We merely offer the following comments for future guidance. The principal issue presented is whether defendant's recent inheritance, which now enables him to perform an obligation he was unable to assume when his children attended college, constituted such a "changed circumstance" as to compel him to reimburse plaintiff for the amounts she expended for that purpose. In this respect, defendant contends that the child support order contained in the supplemental divorce judgment operated "in praesenti" and reflected his then financial ability to pay. He claims that it would be unfair to retroactively increase his child support obligation based upon the unforeseeable happenstance of his inheritance.
The question presented is of first impression. We have long held that a court "has every right to appraise realistically [a spouse's] potential earning power." Mowery v. Mowery, 38 N.J. Super. 92, 102 (App.Div. 1955), certif. den. 20 N.J. 307 (1956). "In treating the matter of support, our courts have always looked beyond the [spouse's] claims of limited resources and economic opportunity." Ibid. Although historically, "[t]he [spouse's] current income is the primary fund looked to, nevertheless his property and capital assets, `his capacity to earn the support awarded by diligent attention to his business his earning capacity or prospective earnings' are all proper elements for the court's consideration in fixing the amount of the award." Id. 38 N.J. Super. at 105, quoting Bonanno v. Bonanno, 4 N.J. 268, 275 (1950). "There is no case ... in our jurisprudence which holds that current earnings are the sole criterion to establish a party's obligation for support." Lynn v. Lynn, 165 N.J. Super. 328, 341 (App.Div. 1979), certif. den. 81 N.J. 52 (1979). Where an increase in spouse's ability to pay is *355 fairly predictable, inventive measures can and should be taken to insure that his support obligation reflects this fact. This can take the form of "the trust devise," id. 165 N.J. Super. at 342, the invasion of capital or savings, id. at 343, or any other means reasonably designed to assure the appropriate support and maintenance of the children.
The problem here is that defendant's enhanced financial capacity was not reasonably foreseeable when the divorce judgment was entered and his support obligation established. Under those circumstances, it is understandable that in the 17-year period following the divorce no provision was ever made for the eventuality that defendant's financial status would change. As we said in Dunne v. Dunne, 209 N.J. Super. 559 (App.Div. 1986), "a court should not ordinarily lay down rules for the future which will depend upon circumstances materially different from those shown by the evidence" and which are not fairly predictable. Id. at 568.
We recognize the danger attendant to recasting retrospectively a spouse's support obligation based upon an unexpected enhancement of his financial ability. Even in the context of post-divorce judgment litigation where the "changed circumstance" doctrine has left the parties' financial obligations somewhat fluid, there must be some room for the right of repose and the value of finality. We are not unmindful of the perils of reviewing such obligations from the vantage point of twenty-twenty hindsight and revising them based upon the fortuitous and unpredictable changing and shifting financial fortunes of the parties.
This much conceded, countervailing considerations strongly militate in favor of plaintiff's right to reimbursement of amounts she paid for her children's college education in the unusual circumstances of this case. We begin with the principle that parents are "equally charged with their [children's] care, nurture, education and welfare...." N.J.S.A. 9:2-4. See also Grotsky v. Grotsky, 58 N.J. 354, 356 (1971); Cohen v. *356 Cohen, 6 N.J. Super. 26, 29 (App.Div. 1949); Sakovits v. Sakovits, 178 N.J. Super. 623, 627 (Ch.Div. 1981). In general, this obligation terminates upon the emancipation of the child. Emancipation can occur upon the child's marriage, by court order, or by attainment of an appropriate age. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). A rebuttable presumption against emancipation exists prior to attaining the age of majority. See N.J.S.A. 9:17B-3. Parents are thus not ordinarily under a duty to support children after the age of majority.
However, "in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for [the] children." Newburgh v. Arrigo, supra, 88 N.J. at 543. The concept of what constitutes a "necessary education" has changed considerably in recent years. In Khalaf v. Khalaf, 58 N.J. 63 (1971), our Supreme Court observed that "[w]hile a `common public school and high school education' may have been sufficient in an earlier time, ... the trend has been toward greater education." Id. at 71, quoting Ziesel v. Ziesel, 93 N.J. Eq. 153 (E. & A. 1921). See also Limpert v. Limpert, 119 N.J. Super. 438, 441 (App.Div. 1972); Sakovits v. Sakovits, supra, 178 N.J. Super. at 628.
This trend was more recently noted by the Court in Newburgh v. Arrigo, supra. There, as in its earlier opinion in Khalaf, the Court observed that "[i]n the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone." 88 N.J. at 544. While the cost of a college education has vastly increased over the years, "[s]tate, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs." Ibid. Emphasizing the emerging need for post-secondary education, the Court stated that "[i]n general, financially capable parents should contribute to the higher education of children who are qualified students" and "[i]n *357 appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a post-graduate education such as law school." Ibid. Justice Pollock, writing for the Court, enunciated specific standards and guidelines to be applied:
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Id. at 545].
We are of the view that these factors should be applied by the court on remand in determining whether defendant should be compelled to reimburse plaintiff for the amounts she advanced for the children's college education. In making this determination, we are not unmindful that the duty to contribute to higher education costs, as described by the Supreme Court in Newburgh v. Arrigo, supra, was said to depend on "financially capable parents," 88 N.J. at 544, and the "ability ... to pay," 88 N.J. at 545, such amounts. Nevertheless, plaintiff unilaterally assumed and shouldered this burden. During this difficult period, defendant remained on the sidelines. Had he obtained his inheritance at an earlier time, clearly it would have been incumbent upon him to share in this joint, coequal obligation. It would be patently unfair were we to permit defendant to avoid fulfilling his parental responsibility on the fortuitous circumstance that his financial status and capacity improved some three months after his daughter graduated college rather *358 than four years earlier. Depending upon the trial court's assessment of the factors described in Newburgh v. Arrigo, supra, we perceive no unfairness in compelling defendant "to do what in equity and good conscience should be done for his children." Mowery v. Mowery, supra, 38 N.J. Super. at 102.
There is nothing in the record to suggest that, in the seventeen years since his divorce, defendant conducted his financial affairs on the belief that he would ultimately obtain a substantial inheritance from his mother, or that such inheritance would be sacrosanct and beyond the reach of his other obligations. Nor is there anything to support the thesis that he relied upon the inviolability of his inheritance. Thus, this is not a case in which a retroactive recasting of a party's support obligation would in any sense impair his rightful expectations. The only "right" that will be lost by defendant in the event he is required to reimburse plaintiff is the "right" to enjoy, with his new family, the fruits of his inheritance free of any obligation owed to his old. In our view, that "right" is not worthy of recognition.
We must not lose sight of the broad equitable powers of the Family Part to accomplish substantial justice. Although the precise question presented by this appeal is novel, we emphasize that this is not the first time a court has been asked to retroactively modify or revise a support order. It is well-established, for example, that "on an application to determine the amount of arrearages and to compel their payment, the court has discretion to determine whether the prior support order or judgment should be enforced and whether and to what extent a spouse should be forced to pay...." Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App.Div. 1981). See also Brennan v. Brennan, 187 N.J. Super. 351, 357 (App.Div. 1982); Winter v. Winter, 162 N.J. Super. 456, 561 (App.Div. 1978); Tancredi v. Tancredi, 101 N.J. Super. 259, 261 (App.Div. 1968); Liss v. Liss, 19 N.J. Super. 358, 361 (App.Div. 1952); Federbush *359 v. Federbush, 5 N.J. Super. 107, 110 (App.Div. 1949); Madden v. Madden, 136 N.J. Eq. 132, 136 (E. & A. 1945). Paradoxically, defendant, in his brief and again during oral argument, has asked us to exercise this power and extinguish his obligation to pay "extraordinary medical expenses," because plaintiff was dilatory in pursuing her remedy. The point to be stressed is that in both situations the court has the equitable power to review prior support orders and to alter and modify them retroactively when justice plainly requires it.
Again, we stress the limited contours of our holding. We find that the trial court erred when it imbued the prior order of the Family Part with the quality of finality. In our view, the prior order had no such preclusive effect. We hold that plaintiff's application for reimbursement of college expenses should be considered on the merits. On remand, the issue is to be addressed within the framework of the factors set forth in Newburgh v. Arrigo, supra. In addition, other equitable considerations, such as the passage of time,[1] whether and to what extent defendant may have relied upon the inviolability of his inheritance, etc. should be applied. As to plaintiff's application for reimbursement of "extraordinary medical expenses" and insurance costs, the court should consider whether plaintiff was dilatory in pursuing her remedy and whether and to what extent defendant was prejudiced thereby.
The order of the Family Part is reversed and the matter is remanded for further proceedings in accordance with this opinion.
NOTES
[1] During oral argument defendant raised the specter of motions being made "twenty or more years after the event," based upon an unexpected change in a spouse's financial status. The short answer is that the passage of time constitutes a factor, and in some cases a substantial factor, militating against ordering reimbursement. As we have pointed out, however, here plaintiff filed her application for reimbursement approximately three months after her daughter graduated from college.
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123 Cal. Rptr. 2d 708 (2002)
101 Cal. App. 4th 191
FRIENDS OF EAST WILLITS VALLEY, et al., Plaintiffs and Respondents,
v.
COUNTY OF MENDOCINO, Defendant and Respondent; Sherwood Valley Rancheria, Real Party in Interest and Appellant.
No. A094872.
Court of Appeal, First District, Division Five.
August 14, 2002.
Review Denied November 20, 2002.
*709 Rapport and Marston, David J. Rapport, Ukiah, for real party in interest and appellant.
Brandt-Hawley & Zoia, Rose M. Zoia, Glen Ellen, for plaintiffs and respondents.
No Appearance for Defendant and Respondent County of Mendocino.
Certified for Partial Publication.[*].
GEMELLO, J.
This case presents an apparent conflict between a Native American tribe's desire to build low-income homes for its members and Willits Valley residents' efforts to preserve open space for agricultural uses. The Mendocino County Board of Supervisors voted to grant the Sherwood Valley Rancheria's request for cancellation of Williamson Act agricultural use restrictions on land the Tribe sought to develop. It issued a negative declaration that the Tribe's limited project would have no significant environmental impacts. The trial court issued a peremptory writ of mandate directing Mendocino County to set aside its approvals. Because we conclude that the decision to adopt a negative declaration was permitted as a matter of law and the decision to cancel the agricultural use restrictions was supported by substantial evidence, we reverse.
Background
The Sherwood Valley Rancheria (Tribe) consists of approximately 400 members of the Pomo Indian tribe. The Willits Valley is its aboriginal territory. Its existing land is insufficient to provide homes for the current members of the Tribe; approximately 40 families are now on a waiting list for adequate housing. The Tribe has obtained a community development grant from the United States Department of Housing and Urban Development (HUD) for use in acquiring additional land and constructing additional homes.
In May 1997, after approximately two years of searching unsuccessfully for suitable additional land, the Tribe settled on acquiring the Bettansid Ranch (Ranch), a 160-acre parcel two and one-half miles east of Willits, California. The Tribe intended to convey the Ranch to the federal government in trust for the Tribe and then *710 construct 15 low-income homes on three and one-half acres of the property.
The Ranch consists of two distinct regions. The flat valley bottomland portion, approximately 53 acres to the west of East Side Road, is prime agricultural land when irrigated. However, it has not been actively farmed since 1995. The hilly upland portion, approximately 107 acres to the east of East Side Road, has never been considered prime agricultural land. The Tribe's plan calls for constructing homes in a cluster in this upland portion of the Ranch, reforesting the remainder of the upland side, and planting orchards in the bottomlands.
Since 1971, the Ranch has been the subject of a Williamson Act contract between the County of Mendocino (County) and the ranch's owners, Bettansid Ranch, Inc. The Williamson Act establishes a mechanism for saving agricultural land by allowing counties to create agricultural preserves and then to enter into contracts with landowners within those preserves. (Gov. Code, § 51200 et seq.) A Williamson Act contract obligates the landowner to maintain the land as agricultural for 10 or more years, with resulting tax benefits. (Id., §§ 51240-51244.) Absent contrary action, each year the contract renews for an additional year, so that the use restrictions are always in place for the next 9 to 10 years. (Id., § 51244.)
Three methods exist for terminating a Williamson Act contract. The county or the landowner may give notice of nonrenewal, in which case automatic renewal will cease and the contract will expire at the end of its remaining term. (Gov.Code, §§ 51245, 51246.) Alternatively, the landowner may petition the county for cancellation of the contract, and the county may approve the petition upon finding that cancellation is in the public interest or is consistent with the purposes of the Williamson Act. (Id., §§ 51280-51282.) Finally, the government may institute eminent domain proceedings. A taking nullifies the contract. (Id., § 51295.)
As a condition of the release of any funds, HUD required that the Williamson Act restrictions on use of the Ranch be lifted. In September 1997, Bettansid Ranch, Inc. and the Tribe jointly applied to the County for cancellation of the Williamson Act contract. Also in September 1997, Bettansid Ranch, Inc. gave notice of nonrenewal of the Williamson Act contract. Consequently, absent cancellation, the Williamson Act restrictions would expire in 2006 or 2007.
The Tribe commissioned an analysis of the environmental impacts of Williamson Act cancellation and construction of the planned homes (the Project) in order to comply with the National Environmental Policy Act and HUD's requirements for use of grant money. In addition, the Tribe commissioned a report on biological resources and a report on archaeological resources. We refer to the environmental, biological, and archeological reports collectively as the "Environmental Assessment." The Environmental Assessment concluded that the Project would not result in any significant environmental impacts provided that several small archaeological sites were avoided in construction.
On November 18, 1997, the Mendocino County Lands Program Committee voted 2-1 to recommend approval of the cancellation. The dissenting member expressed concerns that the Project would induce further growth both on-site and in the surrounding area.
The County Department of Planning and Building Services (Planning Staff) subsequently prepared an initial study of environmental impacts. The initial study reported no impacts on traffic flow, drainage, *711 water resources, or growth rates. It did identify issues concerning archaeological and natural resources. The initial study concurred with the conclusion of the Environmental Assessment that so long as development avoided the archaeological sites on the Ranch, there would be little impact on archaeological resources. As for natural resources, the initial study concluded that the Project would result in a reduction in acreage for agricultural crops and an alteration of an agricultural resource protection zone. The Planning Staff viewed any voluntary agreement by the Tribe not to develop the 53 acres of bottomland as unenforceable. Because of this impact, and because the Planning Staff believed findings related to general plan consistency were required and could not be made, the Planning Staff recommended denial of cancellation. Nevertheless, in the event the Planning Commission or Board of Supervisors ultimately approved the Project, the Planning Staff prepared a draft negative declaration.
On March 16, 1998, influenced by the initial study's concerns about a loss of agricultural land, the Agricultural Commissioner, one of the Lands Program Committee members who had voted for cancellation, reversed his recommendation. On March 19, 1998, concurring with the recommendations of its staff, the Planning Commission voted to deny the petition for cancellation.
The Tribe appealed to the Mendocino County Board of Supervisors (Board of Supervisors). On April 13, 1998, the Board of Supervisors held a lengthy public hearing and voted 4-1 to adopt a negative declaration that cancellation and subsequent development would have no significant environmental impacts. It also tentatively approved the cancellation application and scheduled a further hearing to follow circulation of documents to various state agencies. In July 1998, the Board of Supervisors confirmed its tentative decision and granted the Tribe's petition to cancel the Williamson Act contract by a 3-2 vote.
A critical factor underlying the approvals was the Tribe's submission of a proposed Tribal/County Land Use Agreement (Tribal/County Agreement). The Tribal/County Agreement, signed on April 13, 1997 and subsequently recorded as a covenant running with the land, obligated the Tribe to comply with the terms of the prior Williamson Act contract on the 53acre bottomland portion of the Ranch until September 30, 2007. The Tribe also agreed to waive its sovereign immunity for the limited purpose of allowing the County to seek specific enforcement of the Tribal/County Agreement. The Tribal/County Agreement included as a condition precedent that the County cancel the Williamson Act restrictions.
Within one month of approval of the Project, this lawsuit followed. A group of local residents calling themselves Friends of the East Willits Valley (Friends) brought a mandamus action to challenge the County's adoption of a negative declaration under the California Environmental Quality Act (CEQA) and cancellation of the Williamson Act contract. Bettansid Ranch, Inc. and the Tribe were named as real parties in interest. In a prior unpublished decision, we rejected initial challenges to trial court jurisdiction over the Tribe, concluding that because the Tribe had made a general appearance, it waived its sovereign immunity.
After full briefing and a hearing, the trial court granted the petition for a writ of mandamus. It concluded that substantial evidence prevented the County from adopting a negative declaration and required it to prepare an environmental impact report (EIR). It further held that no substantial evidence supported the decision *712 to grant Williamson Act cancellation and that the grant of cancellation was therefore an abuse of discretion. It also reversed the County's findings of consistency with its own general plan. The Tribe has timely appealed.
During the pendency of this appeal, the Tribe applied to the Bureau of Indian Affairs (BIA) to have the Ranch accepted into trust by the United States.[1] The BIA granted an initial approval. Friends appealed to the Department of Interior's Board of Indian Appeals, notifying it of this proceeding and asking that approval be denied, but its appeal was denied for lack of standing. On April 25, 2002, the BIA issued a final determination accepting the Ranch into trust, and on June 3 the Tribe conveyed title to the Ranch to the United States in trust for the Tribe.
Discussion
I. This Case Is Not Moot Because Passage of the Ranch Into Trust Does Not Void the Williamson Act Restrictions
The BIA's acceptance of the Ranch as federal trust land during the pendency of this appeal makes it necessary for us to consider the fundamental issue of jurisdiction. The Tribe contends that the BIA's action voids the Williamson Act restrictions as a matter of either state law (Gov. Code, § 51295) or federal law (28 U.S.C. § 1360) and that we therefore need not decide whether the County's cancellation of the restrictions was valid. In the alternative, the Tribe argues that the BIA's action conclusively deprives this Court and future courts of jurisdiction to enforce the restrictions. We disagree. Neither state nor federal law voids the Williamson Act contract at issue here; neither state nor federal law prevents the Tribe from waiving its immunity and acceding to jurisdiction. This case presents a live controversy that we must resolve.
A. Section 51295 Does Not Void the Williamson Act Restrictions Because It Applies Only to Eminent Domain Actions
As we interpret Government Code section 51295, it does not apply here. Section 51295 provides in part: "When any action in eminent domain for the condemnation of the fee title of an entire parcel of land subject to a [Williamson Act] contract is filed, or when that land is acquired in lieu of eminent domain for a public improvement by a public agency or person, or whenever there is any such action or acquisition by the federal government," the Williamson Act contract will automatically terminate. (Gov.Code, § 51295, emphasis added.) "Such action or acquisition" refers back to those specific actions and acquisitions defined in the first clause of the statute, i.e., condemnation actions under the eminent domain power or acquisitions negotiated under threat of institution of a condemnation action. The Legislature did not provide that any federal acquisition terminated Williamson Act restrictions, only acquisitions through or under threat of the exercise of federal eminent domain powers. The Tribe's voluntary transfer of title and the federal government's acceptance of that title in trust is not the involuntary taking contemplated by the statute and does not automatically terminate the restrictions on the Ranch under Government Code section 51295.
*713 The Tribe contends that the federal acquisition of the Ranch was for a public use, low-income housing for the Tribe, and that this acquisition is analogous to an eminent domain taking and should trigger cancellation under Government Code section 51295. (See State of Minnesota v. United States (8th Cir.1942) 125 F.2d 636, 640-641 [use of government land for Native American housing is public use].) Essentially, the Tribe argues that the federal government could have acquired the Ranch by actual or threatened use of its eminent domain powers, even though it did not. Whether this is so we need not decide. Government Code section 51295 does not require the courts to exercise such hindsight; it is triggered only when specified procedures are in fact used for acquisition.
The Tribe's implicit argument, that exercise of the trust power can be read into Government Code section 51295 as an alternate basis for termination, also does not withstand analysis. The federal government's power to take land through eminent domain and its power to hold lands in trust for Native American individuals or tribes are historically distinct both in their constitutional underpinnings and their application. The eminent domain power is a long-acknowledged fundamental incident of sovereignty. (United States v. Carmack (1946) 329 U.S. 230, 236, 67 S. Ct. 252, 91 L. Ed. 209 ["The power of eminent domain is essential to a sovereign government"]; Kohl et al. v. United States (1875) 91 U.S. 367, 371-372, 23 L. Ed. 449 ["The right [of eminent domain] is the offspring of political necessity; and it is inseparable from sovereignty"]; see U.S. Const., 5th Amend.) In contrast, the trust power finds its roots in Johnson v. McIntosh (1823) 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681, which declared that the government held title to all lands as successor to colonial explorers, who acquired title by right of discovery. (Id. at p. 574.) According to Chief Justice Marshall, the act of discovery displaced the inhabitants' right of ownership, though not their right of possession. (Ibid.) Subsequent judicial decisions have concluded that the federal government may hold lands in trust for Native Americans as an incident of this title. (Santa Rosa Band of Indians v. Kings County (9th Cir.1976) 532 F.2d 655, 666, fn. 19; Boisclair v. Superior Court (1990) 51 Cal. 3d 1140, 1148, 276 Cal. Rptr. 62, 801 P.2d 305.) The eminent domain power and the trust power are different in application as well. A taking pursuant to eminent domain necessarily rests on a prior finding that the land is needed for a public purpose. (Hawaii Housing Authority v. Midkiff (1984) 467 U.S. 229, 241, 104 S. Ct. 2321, 81 L. Ed. 2d 186; U.S. Const., 5th Amend.) In contrast, acceptance of land into trust may be, but need not be, for the public's benefit. (See 25 C.F.R. §§ 151.10, 151.11 [considerations involved in trust acceptance].) Nothing in the language of Government Code section 51295 suggests that the Legislature intended for termination to be triggered by exercise of this fundamentally different federal power. We conclude that acquisition pursuant to the trust power does not terminate the Williamson Act restrictions under Government Code section 51295.
B. Federal Law Does Not Preempt Jurisdiction Over This Transaction
In the alternative, the Tribe argues that federal law preempts the contractual Williamson Act restrictions. The federal government has "the plenary and exclusive power" to deal with Native American tribes. (Bryan v. Itasca County (1976) 426 U.S. 373, 376, fn. 2, 96 S. Ct. 2102, 48 L. Ed. 2d 710.) This power "derives from federal responsibility for regulating commerce with Indian tribes and for treaty *714 making." (McClanahan v. Arizona State Tax Comm'n (1973) 411 U.S. 164, 172, fn. 7, 93 S. Ct. 1257, 36 L. Ed. 2d 129; see U.S. Const., art. I, § 8, cl. 3; art. II, § 2, cl. 2.) In 1953, Congress passed Public Law 280, which granted certain states (including California) limited civil and criminal jurisdiction over Native American matters. (28 U.S.C. § 1360, subd. (a).)[2] Section 1360, subdivision (b) specifies that the grant of jurisdiction is not intended to authorize preempted state or local regulation of Native American property.[3] Courts applying section 1360 consistently have found federal preemption of state and county regulation of trust land. (E.g., Bryan v. Itasca County, supra, 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed. 2d 710 [state and county may not impose property tax]; United States v. County of Humboldt (9th Cir. 1980) 615 F.2d 1260 [county may not enforce zoning and building codes]; Santa Rosa Band of Indians v. Kings County, supra, 532 F.2d 655 [same]; Middletown Rancheria v. Workers' Comp. Appeals Bd. (1998) 60 Cal. App. 4th 1340, 71 Cal. Rptr. 2d 105 (Middletown Rancheria) [workers' compensation board may not enforce workers' compensation laws on tribal land].)
However, the federal preemption of involuntary restrictions on tribal land use is not at issue here. The issue is not whether the state or County can regulate the Ranch in the future; it is, instead, whether the Ranch remains subject to voluntarily accepted contractual restrictions. While section 1360 may limit regulation, nothing in its language invalidates contractual commitments made before the passage of land into trust. Indeed, the Tribe and County expressly contemplated that the Ranch would be accepted into trust, and nevertheless entered into an agreement to restrict development after this was accomplished.[4] We hold that federal law does not void prior restrictions on land agreed to before the land passed into trust.
Finally, the Tribe argues that even if the restrictions were to remain in place, *715 they would be unenforceable in the future because Public Law 280 precludes jurisdiction over the Tribe. This is an overreading of the statute. It is true that the Tribe enjoys sovereign immunity from suit in state court. (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58, 98 S. Ct. 1670, 56 L. Ed. 2d 106; see United States v. State of Or. (9th Cir.1981) 657 F.2d 1009, 1012-1013 ["Indian tribes enjoy immunity because they are sovereigns pre-dating the constitution, and immunity is thought necessary to preserve autonomous tribal existence"].) It is also true that, while Congress may abrogate that immunity and subject tribes to state court jurisdiction, it did not do so when it passed Public Law 280: "We have never read Pub.L. 280 to constitute a waiver of tribal sovereign immunity, nor found Pub.L. 280 to represent an abandonment of the federal interest in guarding Indian self-governance." (Three Affiliated Tribes v. Wold Engineering (1986) 476 U.S. 877, 892, 106 S. Ct. 2305, 90 L. Ed. 2d 881.)
However, congressional authorization and tribal consent are separate and independent bases for jurisdiction. "As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." (Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 754, 118 S. Ct. 1700, 140 L. Ed. 2d 981, emphasis added; accord C & L Enterprises, Inc. v. Citizen Band Potawatomi Tube of Okla. (2001) 532 U.S. 411, 418, 121 S. Ct. 1589, 149 L. Ed. 2d 623 [holding that tribe contractually waived sovereign immunity and subjected itself to state court jurisdiction].) "Indian tribes may consent to suit without explicit Congressional authority." (United States v. State of Or., supra, 657 F.2d at p. 1013; accord Smith v. Hopland Band of Porno Indians (2002) 95 Cal. App. 4th 1, 6, 115 Cal. Rptr. 2d 455; Middletown Rancheria, supra, 60 Cal.App.4th at p. 1347, 71 Cal. Rptr. 2d 105; Hydrothermal Energy Corp. v. Fort Bidwell Indian Community Council (1985) 170 Cal. App. 3d 489, 494-495, 216 Cal. Rptr. 59 (Hydrothermal Energy Corp.); see also People ex rel. Dept. of Transportation v. Naegele Outdoor Advertising Co. (1985) 38 Cal. 3d 509, 519, 213 Cal. Rptr. 247, 698 P.2d 150.) Indeed, the Tribe waived sovereign immunity previously when it made a general appearance in this case. It also expressly waived sovereign immunity in connection with enforcement of the Tribal/County Agreement.[5] If a tribe elects to waive sovereign immunity and submit itself to state court jurisdiction, nothing in the language of section 1360 stands as a bar to assumption of that jurisdiction. Consequently, section 1360 does not render restrictions on the Tribe's development of the Ranch unenforceable.
In reaching these conclusions concerning the scope and effect of section 1360 and Government Code section 51295, we accord respect to the public policies underlying federal Native American law: federal predominance and the promotion of tribal sovereignty and self-determination. (See generally Boisclair v. Superior Court, supra, 51 Cal.3d at pp. 1147-1149, 276 Cal. Rptr. 62, 801 P.2d 305.) Section 1360 precludes involuntary local regulation of *716 tribal lands; our decision does not alter that rule. Moreover, sovereignty and self-determination are promoted when tribes are free to decide what voluntary agreements they will or will not enter into, and when and under what circumstances they will waive their sovereign immunity and subject themselves to state court jurisdiction. (Hydrothermal Energy Corp., supra, 170 Cal.App.3d at p. 494, 216 Cal. Rptr. 59; United States v. State of Or., supra, 657 F.2d at p. 1014.) Were we to hold that even voluntary restrictions on land use are automatically voided by the passage of land into trust, or that section 1360 forecloses jurisdiction even when a tribe otherwise voluntarily waives sovereign immunity, the ability of tribes to negotiate and plan would be impeded. (United States v. State of Or., at p. 1014; Parker Drilling Co. v. Metlakatla Indian Community (D.Alaska 1978) 451 F. Supp. 1127, 1131.) Here, for example, the Tribe entered into a Tribal/County Agreement in which it both voluntarily accepted land use restrictions and agreed to waive sovereign immunity. (See ante, fn. 4 & 5.) The Tribal/County Agreement was predicated on the assumption that the Tribe's concessions would be enforceable. The public policies underlying federal Native American law countenance statutory interpretations that confirm that assumption, thereby preserving for Native American tribes the freedom to judge for themselves what agreements best promote their own welfare.[6]
Because this case is not moot, we turn to the merits: whether the County's cancellation of the Williamson Act restrictions comported with CEQA, the Williamson Act, and general plan consistency requirements.
II. The County's Adoption of a Negative Declaration Did Not Violate CEQA[**]
III. The County Did Not Violate the Williamson Act
As a second basis for issuing the writ of mandate, the trial court concluded that the County violated the Williamson Act. We review this holding de novo. (Sierra Club v. City of Hayward (1981) 28 Cal. 3d 840, 849, fn. 2, 171 Cal. Rptr. 619, 623 P.2d 180.) In contrast to our analysis of the negative declaration, here we must accord deference to the County's actions. We are limited to reviewing the County's Williamson Act findings for an abuse of discretion. (Id. at pp. 849, fn. 2, 850, 171 Cal. Rptr. 619, 623 P.2d 180; Code Civ. Proc. § 1094.5, subd. (b).) We will not disturb those findings unless the County "has not proceeded in the manner required by law, the ... decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc. § 1094.5, subd. (b).) We conclude that the County made the necessary findings and its findings were supported by substantial evidence. Consequently, this ground cannot support issuance of the writ.
*717 A. Findings Required by the Williamson Act
A county may grant a Williamson Act cancellation petition only after making either of two discrete findings: that cancellation is "consistent with the purposes of [the Act]," or that cancellation is "in the public interest." (Gov.Code, § 51282, subd. (a).) Here, the County concluded that cancellation was in the public interest. (Id., § 51282, subd. (a)(2).) That determination requires two subordinate findings: that "other public concerns substantially outweigh[ ]" the concerns protected by the Act, and that no suitable land not subject to a Williamson Act contract is available. (Id., § 51282, subd. (c).)
In the trial court, Friends argued that the County was required to make an entirely different set of findings: that (1) an emergency situation existed (citing Sierra Club v. City of Hayward, supra, 28 Cal.3d at pp. 852-853, 171 Cal. Rptr. 619, 623 P.2d 180); (2) the Project was contiguous to existing development (citing Honey Springs Homeowners Assn. v. Board of Supervisors (1984) 157 Cal. App. 3d 1122, 203 Cal. Rptr. 886 (Honey Springs)); (3) the Project would not result in adjacent properties being removed from agricultural use (citing Gov.Code, § 51282, subd.(b)(2)); and (4) the Project was consistent with the Mendocino County General Plan. The trial court agreed, and concluded that these findings were not supported by substantial evidence.
However, in light of the statutory structure, we cannot agree that any of these findings are necessary. We do not read Sierra Club v. City of Hayward, supra, 28 Cal. 3d 840, 171 Cal. Rptr. 619, 623 P.2d 180 as requiring a board or council to make a specific finding that an emergency situation exists. Even if it had, however, the Legislature amended the Williamson Act in direct response to Sierra Club v. City of Hayward, passing the Robinson Act in 1981. (See Stats.1981, ch. 1095, § 8.) It is the Robinson Act's amended version of Government Code section 51282 that now governs, and section 51282, subdivision (f) confines the findings required for cancellation to those "expressly set forth" in section 51282. Section 51282 does not specify an emergency situation finding.
Similarly, the contiguity requirement discussed by Honey Springs was part of Government Code section 51282.1, a set of temporary cancellation requirements that were put in place by the Robinson Act and expired in 1983. The contiguity requirement is still part of Government Code section 51282, subdivision (b)(4), but the findings called for by subdivision (b) only come into play when a board bases cancellation on the alternate finding that cancellation would be consistent with the purposes of the Williamson Act. The County did not do so here. For the same reason, the findings called for by subdivision (b)(2) have no bearing here. Finally, as we will discuss in detail in Part IV, post, the Williamson Act does not require findings of general plan consistency.
We turn to a consideration of the evidence supporting the two subordinate findings actually required to justify cancellation.
B. Public Interest Finding
The County identified the need for more low-income housing as the public interest supporting cancellation. Substantial evidence supports its conclusion that this interest substantially outweighs the interest in keeping the Ranch under the Williamson Act.
There is no dispute that the provision of low-income housing constitutes a substantial public interest. Federal, state, and local law recognize the significance of this interest. (See 25 U.S.C. §§ 4131-1135 [providing special funding for low-income housing for Native Americans]; Health & *718 Saf.Code, §§ 34201, 50001-50003.3 [declaring promotion of decent low-income housing a matter of state public policy and concern]; Mendocino County General Plan Policy 1.4e [making provision of housing for low income and special need populations under specified circumstances a County priority].)[11] However, Friends argues that before the County could conclude that that interest was being served here, it first had to determine that the specific findings required by Policy 1.4e of its General Plan could be made. We disagree. The Williamson Act requires a finding that cancellation would promote other public interests that substantially outweigh the interests underlying the Williamson Act. (Gov.Code, § 51282, subd. (c).) While various federal, state and local statutes and ordinances may stand as evidence of a particular public policy, it does not follow that their provisions are thereby incorporated into the Williamson Act. The County could conclude that the Project promoted its interest in ensuring an adequate stock of low-income housing without concluding that the specific provisions of Mendocino County General Plan Policy 1.4e had been satisfied.[12]
Substantial evidence supports the County's finding that the Project will promote low-income housing. The record establishes that more than 70 percent of Tribe member's households have incomes below 50 percent of the median in Mendocino County. More than 40 families are living in substandard or overcrowding housing or housing that consumes more than 30 percent of their income and are on a waiting list for adequate housing. Seventeen families are living on the Tribe's existing lands without electricity and with inadequate water. The County could therefore conclude that the additional homes arising from the Project serve a compelling public need.
Furthermore, the County was entitled to decide that the impact on Williamson Act interests from cancellation would be negligible. Approximately one-third of the Ranch is considered prime agricultural land when properly irrigated. That land is not currently being farmed. Under the terms of the Tribal/County Agreement, the portion of the Ranch that potentially constitutes prime agricultural land will remain subject to Williamson Act restrictions until September 30, 2007, essentially the same period for which such restrictions would have continued to apply in the absence of cancellation. The County therefore could conclude that cancellation would have little, if any, impact on the interests protected by the Williamson Act, and that those interests were substantially outweighed by the need for additional low-income housing.
C. Absence of Alternatives Finding
The County also concluded that there was no proximate noncontracted land that was both "available and suitable" for the proposed project. (Gov.Code, § 51282, subd. (c).) Under the deferential standard of review we employ, we find the evidence *719 in the record sufficient to support this finding.
The Tribe submitted a declaration from its realtor, Pamela Baxman, indicating that she had reviewed all properties for sale in the unincorporated Willits and Laytonville area and that only the Ranch was suitable for the Project. Other properties that were otherwise available reportedly had inadequate access, inadequate water, insufficient on-site sewage treatment capacity, or excessive costs associated with acquisition and development. The Tribe supplemented this evidence with a declaration from its Chairperson, Robin Phillips, who testified to details of the Tribe's unsuccessful multi-year search for proximate alternatives other than the Ranch. Although Phillips' declaration did not explain why various alternatives were determined to be unsuitable, Phillips supplemented his description of the search in his testimony to the Board of Supervisors, as did the Tribe's attorney. Friends points to no contrary evidence, and our independent review of the record reveals no concrete evidence of viable alternative properties. The County was entitled to credit the statements of both Chairperson Phillips and Baxman. (See Silveira v. Las Gallinas Valley Sanitary Dist. (1997) 54 Cal. App. 4th 980, 986, 63 Cal. Rptr. 2d 244.)
Friends criticizes the submissions of Phillips and Baxman as conclusionary. We agree, to an extent. Certainly our job, and that of the County, would have been easier had the Tribe offered substantially more specifics concerning the nature and extent of its search. But the evidence submitted, taken together, discloses at least the minimum information necessary to sustain a finding by the County: the fact that a search for available alternatives was conducted, the fact that the search encompassed the region proximate to the Tribe's current location, the timing and duration of the search, and the fact that criteria permissible under the Williamson Act were used to determine unsuitability and unavailability.
The Tribe concedes that cost played a role in some of its decisions. The Williamson Act properly looks on cost considerations with a jaundiced eye. (Cf. Gov. Code, § 51292 [public improvements may not be placed on Williamson Act parcels based primarily on cheaper cost of such parcels].) If the greater cost of non-Williamson Act land were generally sufficient cause to deem land unavailable, the narrow cancellation exception might well turn into a four-lane freeway. Here, however, there is specific evidence of irremediable financial constraints. The County was entitled to take those constraints, as well as the public policies served by the Project, into account in determining that unaffordable parcels could be treated as unavailable under the Williamson Act.
Friends also criticizes the search for including other Williamson Act parcels and for apparently confining itself to parcels that were actually offered for sale during the search period. In rural areas such as the Willits Valley, much of the available land may be locked up under Williamson Act contracts. Evidence before the County indicated that at least 75 percent of the properties on the market were under contract. The Tribe investigated alternative Williamson Act and non-Williamson Act sites, conducted environmental reviews, and determined that other sites were unsuitable for development for various reasons. The Act requires consideration of all proximate, available non-Williamson Act parcels, but it does not preclude consideration of available Williamson Act parcels. Similarly, the Act requires only that a petitioner and county consider "available" properties (Gov. Resources Code, § 51282(c)), a constraint that means, at a minimum, that a property is available for sale.
*720 From the evidence before it, the County was entitled to find that no proximate and suitable non-Williamson Act land was available. Consequently, its decision to grant cancellation of the Williamson Act contract on the Ranch was lawful.
IV. Williamson Act Cancellation Does Not Require Findings of General Plan Consistency
Friends contends that the County was required to make findings that the Project is consistent with its General Plan, and that it could not do so on this record. The trial court agreed. Because we hold that findings of general plan consistency are not required, we reverse on this ground as well.
In 1981, the Legislature passed the Robinson Act, which substantially revised the Williamson Act. It did so in order to "clarify and make the [Williamson Act] workable in light of problems and ambiguities created by the California Supreme Court decision in the case of Sierra Club v. City of Hayward [1981], 28 Cal. 3d 840 [171 Cal. Rptr. 619, 623 P.2d 180]." (Stats.1981, ch. 1095, § 8.) One of the principal issues debated by the majority and dissent in Sierra Club was the extent of any express findings required to grant a petition for cancellation. (Compare Sierra Club, supra, 28 Cal.3d at pp. 858-860, 171 Cal. Rptr. 619, 623 P.2d 180 (maj. opn. of Mosk, J.) with id. at pp. 865-870, 171 Cal. Rptr. 619, 623 P.2d 180 (dis. opn. of Richardson, J.).) The Sierra Club majority found in the pre-1981 Williamson Act a series of implied required findings; the dissent interpreted the Act as mandating only those findings expressly required. (Id. at pp. 860, 862, 171 Cal. Rptr. 619, 623 P.2d 180 (maj. opn. of Mosk, J.); id. at pp. 866-867, 171 Cal. Rptr. 619, 623 P.2d 180 (dis. opn. of Richardson, J.).)
In response, the Robinson Act rewrote Government Code section 51282, the statute governing the findings required for cancellation. In the new section 51282, the Robinson Act included a provision expressly delimiting the findings required:
In approving a cancellation pursuant to this section, the board or council shall not be required to make any findings other than or in addition to those expressly set forth in this section, and, where applicable, in Section 21081 of the Public Resources Code.
(Gov.Code, § 51282, subd. (f).) In other words, the only findings required for approval of a petition for cancellation are those explicitly stated in section 51282 and those required by CEQA. To imply additional findings would run directly counter to the express language of subdivision (f). Consequently, the County was not required to make any other findings, including findings of general plan consistency.
Other provisions of the Robinson Act make clear that the decision to omit general plan consistency findings was intentional. The Robinson Act included an alternative "window" provision for cancellation applicable only in 1982. (Gov.Code, § 51282.1 [repealed Jan. 1, 1983 by Stats. 1981, ch. 1095, § 9].) This window provision included among the findings required for cancellation the finding "[t]hat the alternative use is consistent with applicable provisions of the city or county general plan...." (Former Gov.Code, § 51282.1, subd. (f)(2).) The inclusion of this requirement in the temporary cancellation requirements and its omission from the permanent cancellation requirements leaves no doubt that the Legislature intended to eliminate any obligation to make general plan consistency findings.
Because the County was not required to make findings that the Project would be consistent with its general plan, issuance of the writ on the basis of its failure to do so was error.
*721 Disposition
The County's issuance of approvals for the Project represented the considered judgment of elected officials after reasoned deliberation and evaluation of the available evidence. Having considered each of the bases relied upon by the trial court, we find no legal cause to set aside the County's decisions. Accordingly, we reverse the judgment of the trial court ordering issuance of a writ of mandate and remand with instructions to deny the petition. The Tribe shall recover its costs on appeal.
We concur. STEVENS, Acting P.J., and SIMONS, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
[1] The Tribe has filed two requests that we take judicial notice of BIA documents evidencing the BIA's actions. We granted the first request previously by separate order, and we now grant the second request as well. (Evid.Code, §§ 452, subd. (c), 459.)
[2] Title 28 United States Code section 1360, subdivision (a) grants California "jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such state that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere in the State[.]" For brevity's sake, we refer to the statute as section 1360 or Public Law 280, by which it is also commonly known.
[3] Section 1360, subdivision (b) provides: "Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein."
[4] The Tribal/County Agreement provides in part: "9. Prior to constructing the houses, the Tribe intends to convey the Property to the United States to be held in trust . . . pursuant to 25 U.S.C. Section 465.'' Nevertheless, the Tribe agreed "as the owner of the Property in fee or as the beneficial owner, if the Property is accepted in trust" to comply with restrictions on its development of the Ranch, including Williamson Act restrictions: the Tribe shall "continue to be bound by and comply with the provisions of the [Williamson Act] Contract that provided for the exclusion of uses other than agricultural, and other than those compatible with agricultural uses, on the [flat valley bottomland portion] until September 30, 2007, after which time said provisions shall cease to have any further force or effect."
[5] The Tribal/County Agreement provides in part: "3. The Tribe hereby waives its sovereign immunity from unconsented suit and consents to suit by the County of Mendocino in the courts of the state of California within Mendocino County for the limited purpose of specifically enforcing the provisions of this Agreement. The Tribe waives any right it might otherwise have to insist upon exhaustion of tribal court remedies prior to the filing of an action to enforce this Agreement and consents to jurisdiction and venue in Mendocino County."
[6] In a footnote, the Tribe also contends that the Williamson Act restrictions fail for want of consideration because the Tribe is immune from real property taxes and receives no benefit from the Williamson Act's tax relief. (See Bryan v. Itasca County, supra, 426 U.S. at p. 376, 96 S. Ct. 2102.) This argument ignores the nature of Williamson Act contracts. Under such contracts, future restrictions on development are the consideration for present tax benefits. (See Sierra Club v. City of Hayward (1981) 28 Cal. 3d 840, 851-852, 171 Cal. Rptr. 619, 623 P.2d 180.) The future restrictions at issue here are (at least in part) the quid pro quo for tax benefits already received by the Tribe's predecessor in interest, Bettansid Ranch, Inc. There is no failure of consideration.
[**] See footnote *, ante.
[11] Policy 1.4e provides that "[qualifying housing projects which substantially advance Housing Element goals or quantified objectives for the production or conservation of housing may be determined to have a higher priority than resource protection, when [particular findings related to environmental and growth impacts] can be made by the decision making body...." For a project to substantially advance Housing Element goals under Policy 1.4e, it must provide housing for low income or special needs households in specified amounts. Policy 1.4e thus recognizes the potentially overriding importance of low-income housing.
[12] Moreover, as we discuss in more detail in Section IV, infra, the Williamson Act, as amended by the 1981 Robinson Act, expressly absolves the County from having to make a finding that cancellation was consistent with its general plan policies.
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228 N.J. Super. 428 (1988)
549 A.2d 1275
LEONARD WOLFE AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF DEBRA WOLFE, PLAINTIFFS,
v.
SPERLING AGENCY, INC., AND THE HANOVER INSURANCE COMPANY, DEFENDANTS.
Superior Court of New Jersey, Law Division Essex County.
Decided August 12, 1988.
*429 Pamela Giannotto for Plaintiffs (Gallo, Geffner, Fenster, Farrell, Turitz & Harraka, Attorneys).
Anthony C. Stuart, for Defendant Hanover Insurance Company (Sellar, Richardson, Stuart & Chisholm, P.C., Attorneys).
YANOFF, J.S.C. (retired and temporarily assigned on recall).
At issue is the meaning of an "underinsured motor vehicle," in N.J.S.A. 17:28-1.1 e.
The context is not in dispute. On January 13, 1985, plaintiff's daughter, Debra Wolfe, was killed in an automobile accident. She was a passenger in a car driven by Gregory Reyes, whose negligence caused the accident. Of the two other passengers in the car, one was killed and one was severely injured. *430 Reyes carried a bodily injury/property damage liability of $25,000 per person and $50,000 per accident. Each of the three passengers in the automobile received approximately $16,600 of the $50,000.
When the accident occurred, the decedent, Debra Wolfe, was covered by her father's underinsured motorist policy, with limits of $25,000 per person and $50,000 per accident, identical to Reyes's liability coverage. Plaintiff seeks to recover the difference between the amount collected under Reyes's policy, $16,600, and his underinsured motorist coverage of $25,000. The defendant Hanover Insurance Company denies coverage. Both parties move for summary judgment.
The statute involved is part of a comprehensive act to revise and reform the law of automobile insurance. N.J.S.A. 17:28-1.1 e reads:
For the purpose of this section, (1) `underinsured motorist coverage' means insurance for damages because of bodily injury and property damage resulting from an accident arising out of the ownership, maintenance or use of an underinsured motor vehicle. Underinsured motorist coverage shall not apply to an uninsured motor vehicle. A motor vehicle is underinsured when the sum of the limits of liability under all bodily injury and property damage liability bonds and insurance policies available to a person against whom recovery is sought for bodily injury or property damage is, at the time of the accident, less than the applicable limits for underinsured motorist coverage afforded under the motor vehicle insurance policy held by the person seeking that recovery. A motor vehicle shall not be considered an underinsured motor vehicle under this section unless the limits of all bodily injury liability insurance or bonds applicable at the time of the accident have been exhausted by payment of settlements or judgments. The limits of underinsured motorist coverage available to an injured person shall be reduced by the amount he has recovered under all bodily injury liability insurance or bonds;
(2) `uninsured motor vehicle' means: (a) a motor vehicle with respect to the ownership, operation, maintenance, or use of which there is no bodily injury liability insurance or bond applicable at the time of the accident;
(b) a motor vehicle with respect to the ownership, operation, maintenance, or use of which there is bodily injury liability insurance in existence but the liability insurer denies coverage or is unable to make payment with respect to the legal liability of its insured because the insurer has become insolvent or bankrupt, or the Commissioner of Insurance has undertaken control of the insurer for the purpose of liquidation; or
*431 (c) a hit and run motor vehicle as described in section 18 of P.L. 1952, c. 174 (C.39:6-78).
`Uninsured motor vehicle' shall not include an underinsured motor vehicle; a motor vehicle owned by or furnished for the regular use of the named insured or any resident of the same household; a self-insurer within the meaning of any financial responsibility or similar law of the state in which the motor vehicle is registered or principally garaged; a motor vehicle which is owned by the United States or Canada, or a state, political subdivision or agency of those governments or any of the foregoing; a land motor vehicle or trailer operated on rails or crawler treads; a motor vehicle used as a residence or stationary structure and not as a vehicle; or equipment or vehicles designed for use principally off public roads, except while actually upon public roads.
Defendant maintains that the Reyes vehicle was not underinsured under N.J.S.A. 17:28-1.1 e because the limits of Reyes's policy were exactly the same as plaintiff's policy, $25,000 per person, $50,000 per accident. Thus, it is argued, plaintiff may not recover the difference between the $16,600 actually received and the $25,000 for which he is covered on his own underinsured motorist policy.
Plaintiff's position is that the word "available" in N.J.S.A. 17:28-1.1 e indicates a legislative intent to allow the claimant to recover when the limit of liability coverage is greater than the payment claimant actually receives. Thus, the vehicle should not be considered underinsured merely because Reyes's policy limit is the same as that of the plaintiff.
The section in controversy became law by L. 1983, c. 65, and operative January 1, 1984. It should be noted that there was another amendment to the statute by L. 1983, c. 362 which became effective October 4, 1983, prior to the section in question.
Three general categories of underinsured motorist statutes have been recognized, using the nomenclature in Stott, Underinsured Motorist Coverage: Working out the Bugs, 36 Fed'n Ins.Couns.Q. 121, 122 (A, B and C) (1986). Type A statutes provide that the underinsured motorist limits must exceed the sum of the tortfeasor's liability limit for underinsurance to apply. Type B statutes provide that the tortfeasor's liability limit must be less than the insured's damages for him to be *432 considered uninsured. Type C statute, least common, simply requires that the claimant's liability limits exceed that of the tortfeasor, e.g., N.Y.Ins.Law, sec. 167(2-a) (McKinney 1966). The New Jersey statute is Type A. Cf. for example, Tennessee's statute, also Type A.
`Uninsured motor vehicle' means a motor vehicle ... for which the sum of the limits of liability available to the insured under all valid and collectible insurance policies, bonds, and securities applicable to the bodily injury, death, or damage to property is less than the applicable limits of uninsured motorist coverage provided to the insured under the policy against which claim is made. [Stott, supra at 122, citing Tenn. Code Ann. § 56-7-1202 (1982)]
The Tennessee statute is a particularly good example because like New Jersey's it uses the word "available."
In construing the statute we are required to rely upon its language and the purpose of the Legislature in enacting it. Unfortunately, there are no controlling New Jersey cases. Wert v. Picciano, 189 N.J. Super. 178 (Law Div. 1982), which has a factual context similar to that at bar, was decided prior to enactment of the statute and dealt only with interpretation of the language of an insurance policy.
Gorton v. Reliance Ins. Co., 77 N.J. 563 (1978), does afford some guidance because it deals with an argument similar to one advanced by plaintiff. The question there considered was whether uninsured motorist coverage carried pursuant to the statute was available where the tortfeasor was underinsured. The tortfeasor's liability insurance was insufficient to satisfy the claims of the victims of the accident. The victims sought recourse to the uninsured motorist coverage provisions of their insurance policies. The Court held that they could not, and explicitly disavowed the logic of Porter v. Empire Fire & Marine Ins. Co., 106 Ariz. 274, 475 P.2d 258 (1970), mod. on other grounds, 106 Ariz. 345, 476 P.2d 155 (1970). Its reasoning is important because it refutes plaintiff's argument that the legislation was to provide complete coverage for tortfeasors. The Court noted that "... one of the purposes of UM provision was to reduce the drain on the Unsatisfied Claim and Judgment *433 Fund...." 77 N.J. at 572. It then continued directly addressing plaintiff's argument:
At the same time we acknowledge the oft-cited anomaly that those in the position of these claimants would find themselves a better position were the tortfeasor's vehicle totally uninsured rather than underinsured. However, the objective of the legislature as we perceive it was to protect the public from a noninsured, financially irresponsible motorist, not one who is insufficiently insured. See Lund v. Mission Insurance Co., 270 Or. 461, 528 P.2d 78 (1974). The protection intended is against an `uninsured' motorist, not one who is `underinsured.' The legislature required that a minimum level of coverage be available for each accident when more than one person was injured. It did not undertake to guarantee an irreducible minimum sum available to every injured person under every set of circumstances but simply to make available a policy offering minimum levels of coverage. [Id.]
The opinion continued, referring to Motor Club of America Ins. Co. v. Phillips, 66 N.J. 277 (1974):
While we reiterated our adherence to the principle of liberality in effecting the broadest protection of auto accident victims, we noted that that salutary principle operates as of course it must within the constraints imposed by the language of the pertinent statute. 66 N.J. at 293. On the issue before us the legislative intent appears clear to the effect that an uninsured automobile is one which does not meet the requirements of the Financial Responsibility Law, and not simply an underinsured vehicle. [77 N.J. at 573]
Ciecka v. Transamerica Ins. Group, 81 N.J. 421 (1979), to some extent emphasizes the teaching of Gorton. There, the problem was whether the injured plaintiff could have recourse to uninsured motorist coverage of the tortfeasor as well as his normal liability coverage ("stacking"). It was held that the tortfeasor's insurance carriers had "... to make available their UM coverage without any offset for payments heretofore made under Transamerica's liability coverage." Id. at 428.[1]
Ciecka was before the Court when Gorton was decided. Gorton, 77 N.J. at 567, n. 2. The Court differentiated the case from the issues in Ciecka. It must be noted that the "socially desirable policy of adequate indemnification of innocent automobile victims,"[2] underlay the Court's ruling in Ciecka that *434 "stacking" was permissible, but that in Gorton this policy was overcome by the clarity of the statutory language. It is significant also that the Court in Gorton cited Phillips, 77 N.J. at 571, but considered it not applicable.
As indicated, plaintiff's argument that the basic legislative intent was to afford complete coverage to persons injured by motor vehicle accidents, and that to adopt defendant's position would lead to the unreasonable result that if the tortfeasor's policy limits were $1 less than the underinsured policy, there would be underinsured coverage, was rejected in Gorton. Of course, reciprocally, it was open to the injured party to buy one dollar's worth more of underinsured's policy.
In Rogers v. Tennessee Farmers Mut. Ins. Co., 620 S.W.2d 476 (Tenn.Sup.Ct. 1981) the majority rejected the same argument, despite a dissenting opinion which articulated a similar contention.
The importance of Gorton is underscored by the interaction between uninsured and underinsured cases.
Annotation, "Uninsured and underinsured motorist coverage: recoverability, under uninsured or underinsured motorist coverage, of deficiencies in compensation afforded injured party by tortfeasor's liability coverage," 24 A.L.R.4th 13 (1983), lists cases in which uninsured motorist coverage has been treated as underinsured motorist coverage. See id. at 17, 42, 50.
Longworth v. Van Houten, 223 N.J. Super. 174 (App.Div. 1988), the most recent word on the statute, does not help either side. The case held that subrogation and consent to settle clauses in underinsured motorist coverage contravened public policy as set forth in the statute and therefore fell out of the policy. The opinion states:
Paragraph (e) in pertinent part defines an underinsured vehicle as one which is covered by total liability insurance in an amount less than the victim's UIM coverage. Paragraph (e) further provides that the amount of the victim-insured's UIM coverage available to compensate him for the damages caused by the tort-feasor is his UIM coverage limit less the sum the insured has received from the tortfeasor under all the tortfeasor's liability insurance. This deduction *435 provision of the statute comports with pre-statutory judicial construction of voluntarily offered UIM coverage in this state. See Wert v. Picciano, 189 N.J. Super. 178 (Law Div. 1982). [Id. at 177-78, n. 3]
This language, while hardly decisive, supports the ruling herein.
The upshot, reverting to Gorton, is that while there is a public policy that the insurance policy should be construed so as to afford relief to persons injured in motor vehicle accidents, the ultimate question is, what does the statute mean? The statutory language means that where the policy limits of the tortfeasor are more, or the same as the underinsured motorist policy limits, the motorist is not an underinsured motorist.
For cases under statutes similar to that under consideration in accord with this ruling see Herrod v. National Indem. Co., 643 F. Supp. 956 (N.D.Miss. 1986), and Wilson v. Nationwide Mut. Ins. Co., 667 F. Supp. 349 (N.D.Miss. 1987) ("uninsured" vehicle defined in terms of policy limits, without regard to proceeds received by claimants).
Plaintiff's reliance upon Florida law fails. Florida has the same type of underinsured motorist provision as New Jersey. This statute was construed to require a credit against underinsured motorist coverage of the amount tendered under tortfeasor's liability coverage. Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077, 1081, n. 5 (Fla.Sup.Ct. 1978), rev'd on other grounds, 383 So.2d 1109 (Fla.Ct.App. 1980), involving uninsured coverage, but stating that underinsured coverage would be treated similarly, and Jones v. Travelers Indem. Co. of Rhode Island, 368 So.2d 1289 (Fla.Sup.Ct. 1979). In Hurley v. State Farm Mut. Auto Ins. Co., 438 So.2d 1002 (Fla.Ct.App. 1983), it was held that where the uninsured motorist coverage equalled the tortfeasor's liability coverage, there could be no recovery under the uninsured policy. The Court stated: "The appellant is neither an uninsured nor an underinsured motorist." Id. at 1003. In Holt v. State Auto Mut. Ins. Co., 385 So.2d 1058 (Fla.Ct.App. 1980), petition for review den., 394 So.2d 1152 (Fla. Sup.Ct. 1981), the same rule was applied where the tortfeasor's *436 policy was apportioned among multiple claimants. Florida law probably supports defendant's rather than plaintiff's position.
The defendant's motion for summary judgment is granted and the plaintiff's is denied.
Defendant will submit an appropriate order.
NOTES
[1] Subsection c of N.J.S.A. 17:28-1.1, the statute here considered, prohibits stacking. See Christy v. City of Newark, 102 N.J. 598 (1986).
[2] Citing Motor Club of America Ins. Co. v. Phillips, 66 N.J. at 292.
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428 A.2d 1158 (1981)
FRATERNAL ORDER OF POLICE, DELAWARE-WILMINGTON LODGE NO. 1 and International Association of Firefighters, Local 1590, Petitioners, Appellants,
v.
William T. McLAUGHLIN, Mayor, City of Wilmington, Respondent, Appellee.
Supreme Court of Delaware.
Submitted March 12, 1981.
Decided April 10, 1981.
Jeffrey M. Weiner (argued), of Bayard, Brill & Handelman, P.A., Wilmington, for petitioner, appellant Fraternal Order of Police, Delaware Wilmington Lodge No. 1.
Charles P. Brandt, of Brandt & Benson, Wilmington, for petitioner, appellant Intern. Ass'n of Firefighters, Local 1590.
Jeffrey S. Goddess (argued), City Sol., and John R. Sheridan, Asst. City Sol., Wilmington, for respondent, appellee.
Before DUFFY, McNEILLY and HORSEY, JJ.
*1159 DUFFY, Justice:
This is an appeal by two public employee unions from an order of the Superior Court denying a petition for a writ of mandamus directed to the Mayor of the City of Wilmington. We are asked to review the methods by which an amendment to the Home Rule Charter of the City of Wilmington may be initiated.
I
The undisputed facts are these:
The Fraternal Order of Police, Delaware Wilmington Lodge No. 1 (FOP) and the International Association of Firefighters, Local 1590 (Firefighters) seek an amendment to the Wilmington City Charter to provide binding arbitration for the settlement of disputes which are not resolved by collective bargaining with their employer, the City of Wilmington. Following a procedure for initiating a Charter amendment, stated in Chapter 6 of the City Code,[1] the FOP and the Firefighters circulated an application among Wilmington citizens and secured signatures in number greater than ten percent of the total number of votes cast in the immediately preceding mayoral election. In September 1980, the unions submitted the application to the Mayor. It asked that a question regarding the establishment of binding arbitration be submitted to the people of Wilmington at the mayoral election to be held on November 4, 1980. The Mayor refused to accept the unions' application and returned it on September 4, indicating that the procedure under Chapter 6 was no longer a valid means of initiating a Charter amendment.
The FOP and the Firefighters immediately filed a petition in Superior Court for a writ of mandamus to be issued to the Mayor, compelling him to accept the application. Following an expedited briefing and argument schedule, on October 14 the Superior Court denied the petition holding that the procedure for initiating a Charter amendment stated in Chapter 6 had been repealed by implication through enactment of Wilmington's Home Rule Charter, which had become effective July 1, 1965. The FOP and the Firefighters then docketed this appeal. We affirm.
II
Although the election has been held, all parties join in asking the Court to decide the appeal. Since the issue concerns the validity of a procedure for amending the Wilmington Charter, and thus is of continuing *1160 significance to the City and its citizens, we conclude that the issues are not moot and that this Court should decide them. Traub v. Brown, Del.Supr., 9 W.W.Har. 187, 197 A. 478, 479 (1938); compare Moore v. Ogilvie, 394 U.S. 814, 815, 89 S. Ct. 1493, 1494, 23 L. Ed. 2d 1 (1969).
III
The initiative and referendum provisions of Chapter 6 were enacted in 1907, 24 Del. Laws c. 75, § 1, and currently appear in the "Related Laws" section of the Wilmington Code. In 1961, the General Assembly passed the Home Rule Enabling Act, 53 Del.Laws c. 260, codified in Chapter 8 of Title 22 of the Delaware Code, granting to every municipal corporation in the State with a population of 1,000 persons or more the power to "proceed as set forth in this chapter to amend its municipal charter and... subject to the conditions and limitations imposed by this chapter, amend its charter so as to have and assume all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration and which are not denied by statute." 22 Del.C. § 802. Section 811 of the Enabling Act states two methods of initiating an amendment to a charter enacted thereunder.[2] 22 Del.C. § 811.
. . . . .
In the general election of 1964, and pursuant to the Home Rule Enabling Act, the City adopted Wilmington's Home Rule Charter. Consequently, Wilmington's Charter is comprised of the 1965 Home Rule Charter provisions and all unrepealed "Related Laws" theretofore enacted. The sole issue presented, then, is whether the initiative and referendum procedure of Chapter 6 continues as a viable means of initiating a Charter amendment, or, whether it was implicitly repealed by enactment of the Home Rule Charter in 1965 and replaced by the methods provided in the Enabling Act.
It is conceded that because Chapter 6 is included in the "Related Laws" of the City of Wilmington, it is to be considered part of the City's Charter. In Re Opinion of the Justices, 276 A.2d 736 (1971). And both sides accept the Superior Court's view that if enactment of the Home Rule Charter in 1965 effectively repealed Chapter 6, it did so by implication, because there is not an express reference to the initiative and referendum procedure. Thus our determination of Legislative intent, like the analysis of the Superior Court, must start with the general rule that repeal by implication is not favored in law, DuPont v. DuPont, 32 Del. Ch. 156, 87 A.2d 394 (1952), except when two provisions are irreconcilably inconsistent, Hodson v. Hodson Corp., 32 Del. Ch. 76, 80 A.2d 180 (1951), repugnant to each other, Philadelphia, B. & W. R. Co. v. Mayor and Council of Wilmington, 30 Del. Ch. 213, 57 A.2d 759 (1958), or when they lead to absurd, unjust or mischievous results, C. v. C., Del.Supr., 320 A.2d 717 (1974). Given that rule, the unions attack the Superior Court's determination that initiative and referendum is "repugnant to the orderly scheme" of charter amendments provided by § 811 and would "encourage *1161 absurd or mischievous consequences"; they argue that initiative and referendum is merely an additional, complimentary method of initiating a Charter amendment.
We reject this contention and adopt the rationale of the Trial Court to buttress, in part, our view that the initiative and referendum procedure of Chapter 6 has been repealed. As we read the Enabling Act, such was the intent of the General Assembly. The Act grants certain municipalities the power to adopt Home Rule, but "subject to the conditions and limitations" imposed by the Act. 22 Del.C. § 802. In our view, § 811, which appears in Subchapter II of Chapter 8, titled "Method of Exercising Power," and which states two distinct and precise methods[3] of amending a Charter adopted under the Enabling Act, clearly constitutes one such condition or limitation. Moreover, § 811 makes no mention of initiative and referendum; indeed, unlike that procedure, both methods of initiating a charter amendment delineated by that section include a "pre-screening" mechanism conducted by the "legislative body" of the municipality or by a charter commission created as provided in § 81. Without such pre-screening the proposal cannot be submitted to the electorate. See § 813. Given that two-step procedure for amendment required by § 811, there is an irreconcilable inconsistency between the general law stated therein and the special law embodied in Chapter 6; accordingly, the latter was repealed by implication, In the Matter of Application of Slaughter Beach Water Company, Del.Supr., 427 A.2d 893 (1981).
Accordingly, we hold that the orderly scheme of initiating a municipal charter amendment envisioned by § 811 evidences a Legislative intent that § 811 encompass the entire field; in other words, that an amendment to a charter adopted under § 802 of the Enabling Act may be initiated only pursuant to one of the methods provided by § 811. It follows that the judgment of the Superior Court that adoption of the Home Rule Charter in 1965 repealed, by implication, the initiative and referendum procedure of Chapter 6 is correct. See Sloane v. City of Waterbury, 150 Conn. 24, 183 A.2d 839 (1962); Hitchins v. Mayor and City Council of Cumberland, 208 Md. 134, 117 A.2d 854 (1955).
* * * * * *
Affirmed.
NOTES
[1] Chapter 6 is titled, "Initiative and Referendum." Section 6-1 provides, in part:
"On application addressed to the council, signed by citizens of the city, qualified to vote at the last preceding election for the mayor of the said city, aggregating in number not less than ten per centum of the whole number of votes cast at such election for such mayor, asking for the submission to the people of the said city of any question relating to the affairs of the said city, for an expression of opinion thereon, such question shall be placed before the people at the next city election."
[2] 22 Del.C. § 811 provides, in pertinent part:
"The amendment of a charter shall be proposed either by a resolution of the legislative body of a municipal corporation, three quarters of all members elected thereto concurring or by a charter commission of 7 members elected by the qualified voters of the municipal corporation from their membership at large pursuant to petition for such an election bearing the signatures of at least 10% of the qualified voters of the municipal corporation and filed with the clerk or other chief recording officer of the legislative body of the municipal corporation. The charter commission candidates who receive the most votes shall constitute the commission. On the death, resignation or inability of any member of a charter commission to serve, the remaining members shall elect a successor. The commission shall have authority to propose the amendment of the charter as specified in the petition, to hold public hearings thereon and to arrange for putting the proposed amendment on the ballot or voting machine to be used at the next referendum election.
In addition to the procedure hereinbefore set forth, a charter may be amended by act of the General Assembly, passed with the concurrence of two thirds of all the members elected to each House thereof."
[3] To be entirely accurate, § 811 provides a third manner in which a municipal charter may be amended, but because that requires action by the General Assembly, it is not important to the case before us. See 22 Del.C. § 811.
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228 N.J. Super. 267 (1988)
549 A.2d 491
STATE OF NEW JERSEY,
v.
FRANK BARCIA, AND ALPHONSE J. SIRACUSA, DEFENDANTS.
Superior Court of New Jersey, Law Division Bergen County.
Decided August 5, 1988.
*270 Philip Tornetta, Assistant Prosecutor, for the State (Larry J. McClure, Bergen County Prosecutor).
Brian J. Neary, for Defendant Barcia.
Joel Reinfeld, for Defendant Siracusa.
NAPOLITANO, J.S.C.
This case addresses the constitutionality under both the United States Constitution and the New Jersey Constitution of a roadblock established by the State of New Jersey at the George Washington Bridge in Fort Lee, New Jersey, on September 12, 1986. Because this Court finds that the roadblock violated (a) both the Fourth Amendment to the U.S. Constitution[1]*271 and Article I, paragraph 7 of the N.J. Constitution, and (b) the defendants' and others' right to travel, and (c) the Commerce Clause of the U.S. Constitution, the roadblock is constitutionally infirm and so all evidence of criminality obtained from these defendants is suppressed.
I. The Roadblock of September 12, 1986.
On Friday, September 12, 1986, at approximately 8:46 p.m., the defendants herein were traveling in an automobile from New York City to New Jersey across the George Washington Bridge. The automobile was ordered to the side of the roadway in Fort Lee, New Jersey, by law enforcement officials who had established a roadblock for the purpose of detecting persons operating vehicles who were transporting controlled dangerous substances or were under the influence of drugs or alcohol.
Larry J. McClure, the Bergen County Prosecutor, along with the chiefs of the Fort Lee, Palisades Interstate Parkway, and Bergen County police departments, determined substantially in advance of September 12, 1986, that roadblocks at the George Washington Bridge would serve useful law enforcement purposes because of the high incidence of drug activity in the area, particularly the transportation of the "crack" form of cocaine across the George Washington Bridge from the Washington Heights area of New York City into Bergen County, New Jersey. Several New Jersey newspapers had, prior to September 12, 1986, announced in various prominent articles that the Prosecutor was planning roadblocks in this area and for this purpose.
*272 After the agreement to establish the roadblocks had been reached, the Prosecutor formulated and promulgated guidelines that would govern the implementation of the roadblocks. The Prosecutor's guidelines were adapted from those used by the New Jersey State Police to govern their drunk driving roadblock operations, which the Prosecutor believed had received judicial sanction in State v. Kirk, 202 N.J. Super. 28 (App.Div. 1985).
In addition to the State Police guidelines, the Prosecutor directed the police to follow other procedures. He mandated the presence of a police officer at each checkpoint throughout the roadblock area who was specially trained in narcotics investigations and in detecting the symptoms of motorists under the influence of alcohol and drugs. He also sought to minimize inconvenience to persons stopped by notifying area hospitals in advance of the possible need to take blood and urine samples.
The roadblock here under scrutiny was the first of a series approved by the Prosecutor and it occurred on Friday, September 12, 1986. The written request of Lieutenant James Matt of the Fort Lee Police Department satisfied the Prosecutor that there was particularly heavy trafficking of crack from New York City to New Jersey between approximately 7 p.m. and 3 a.m. during the weekends. Four "checkpoints" were set up throughout the roadblock on the New Jersey side of the George Washington Bridge on September 12, 1986 in the areas where the Prosecutor believed they would yield the most significant results and at the same time the least inconvenience to the public. Each driver stopped by the police who was not ordered to the side of the roadway was given a printed brochure which warned of the personal and public risk of driving under the influence of alcohol or drugs. The roadblock was set up at 7:30 p.m. and terminated at 10:50 p.m. There was one county police captain, two county detectives, and eight uniformed police officers supervising and operating this particular checkpoint which was located in Fort Lee several hundred yards west of the point *273 on the public highway where the lower level of the George Washington Bridge joins New Jersey.
The first vehicle was stopped at approximately 8:00 p.m., and the next vehicle was stopped five minutes later. Vehicles were then stopped every two minutes until 8:26 p.m. After that, a vehicle was stopped approximately every minute. The roadblock was announced by signs, and traffic was funneled through the checkpoints of this roadblock by cones, flares, and lighted police vehicles. During the operation, approximately one out of every twenty vehicles was stopped briefly for a license, registration, and insurance card check and for the detection by observation of any drugs or of any driver under the influence of drugs or alcohol. When all police personnel at the roadblock were occupied, traffic, though narrowed to one lane, was allowed to pass and thus was neither counted nor stopped.
On the evening in question, a total of fifty-nine vehicles out of the many which were stopped were actually ordered off the main thoroughfare to the side of the roadway and from those vehicles nine persons were arrested. The defendants herein two of the nine arrestees were charged with possession of controlled dangerous substances, possession of drug paraphernalia, being under the influence of a controlled dangerous substance, and possession of a controlled dangerous substance in a motor vehicle. At the time the defendants' vehicle was stopped, the police observed in it a brown paper bag containing syringes and ten small packages of white powder labeled "Dynamite." Neither of these defendants was charged with operating a motor vehicle in an illegal manner. Both defendants now move to suppress the physical evidence (including urine samples which were later taken and which were positive for narcotics) obtained by the police from their search of the vehicle, asserting that the roadblock at which they were stopped was unconstitutional.
*274 II. The Interdiction of Defendants' Fundamental Liberties.
The use by the police of a roadblock which actually stops motor vehicles on a public thoroughfare for the purpose of detecting evidence of criminality facially interdicts the constitutionally protected fundamental liberties of persons to be free from unreasonable governmental intrusion and to travel freely on public highways. The right to be free from unreasonable governmental intrusion is protected by the Fourth Amendment to the United States Constitution and, in New Jersey, by Article I, paragraph 7 of the New Jersey Constitution.[2] The right to travel freely is protected by the Fifth and Fourteenth Amendments to the U.S. Constitution.
The Fourth Amendment to the U.S. Constitution applies to all seizures of the person including seizures that involve only a brief detention short of traditional arrest. Whenever a police officer restrains the freedom of a person to leave, the reasonableness of such a restraint depends upon a balance between the public's interest in enforcing law and the individual's right to personal security free from arbitrary intrusions by the government. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Kirk, 202 N.J. Super. at 40. The Brignoni-Ponce *275 case is particularly instructive here since it invalidated the use by the federal government of roving border patrols which randomly stopped motor vehicles in order to search for the presence of illegal aliens. Prouse is similarly instructive since it invalidated random police roadblocks seeking to ferret out drunk drivers from among the driving public. In both cases the court held that no seizures may be conducted unless the government can show that it had an articulable suspicion for seizing the specific person. While the Supreme Court did not rule on and did not rule out all warrantless automobile stops where there is less than articulable suspicion, it invited trial courts to scrutinize carefully the reasonableness of all stops. Justice Powell wrote in Brignoni-Ponce at 422 U.S. at 878, 95 S.Ct. at 2578, 45 L.Ed.2d at 614-615, that:
The Fourth Amendment applies to all seizures that involve only a brief detention short of traditional arrest, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868 [1877-1879], 20 L.Ed.2d 889 (1968) and the Fourth Amendment requires that the seizure be "reasonable." As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Terry v. Ohio, supra, at 20-21, 20 L.Ed.2d 889, 88 S.Ct. 1868 [at 1879-1880]; Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727 [1734-1735], 18 L.Ed.2d 930 (1967).
Since the basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals from unreasonable (i.e., arbitrary, unbalanced, or excessive) intrusion by government officials, Camara v. Municipal Court, 387 U.S. at 538-540, 87 S.Ct. at 1735-1736, 18 L.Ed.2d at 935, an analysis of the constitutionality of all warrantless seizures requires a trial court to assess the reasonableness of the government's behavior by balancing the gravity of the government's concerns against the severity of the interference with individual liberty. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
*276 Our own state courts have also held that Article I, paragraph 7 of the New Jersey Constitution, which is always at least coterminous to the Fourth Amendment, proscribes those searches and seizures that are unreasonable. State v. Bruzzese, 94 N.J. 210 (1983). Normally the constitutional requirement of reasonableness is satisfied where the government, upon a showing of probable cause, obtains a search warrant from a judge of competent jurisdiction. However, the seizure of a person without a warrant is presumed to be invalid and the government has the burden of proving the overall reasonableness and validity of such a seizure. State v. Valencia, 93 N.J. 126 (1983). Both the United States Supreme Court and the Supreme Court of the State of New Jersey have consistently asserted that the right to be free from unreasonable governmental intrusion is of the very essence of constitutional liberty and is one of our most protected rights. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); State v. Bruzzese, 94 N.J. at 213.[3]
The leading case in New Jersey governing the constitutionality of roadblocks is State v. Kirk, an Appellate Division opinion, decided exclusively on New Jersey and not federal constitutional grounds. After a careful survey and analysis of the relevant federal cases addressing the circumstances under which a person may be seized, and the cases of our sister states, addressing the circumstances under which roadblocks have elsewhere survived constitutional challenge,[4] and the New Jersey cases *277 bearing upon governmental intrusion as it offends the N.J. Constitution, the Kirk court held that any New Jersey constitutional objections to a roadblock will be overcome if three criteria are met: (a) establishment of the roadblock by command authority, (b) careful targeting of a designated area at a specified time and place, based upon data justifying the site selection, and (c) adequate warnings to the public near the site of the roadblock, together with advance general publicity, and neutral, courteous procedures.
In the facts here under scrutiny, the Court finds that the Prosecutor of Bergen County was aware of Kirk but did not meet all of its requirements. At the motion to suppress, the State produced evidence of its awareness of drug trafficking from Washington Heights in Manhattan across the George Washington Bridge to Fort Lee, N.J. It also produced evidence that the roadblock in this case was planned and supervised by the Prosecutor or his first assistant, was the subject of warnings both in the media and at the roadside, and was conducted by uniformed officers who were courteous, and who used a numerical determination as to which car to stop.
However, Kirk invites an analysis under federal constitutional principles, 202 N.J. Super. at 38-40, and thus allows that any roadblock may be found constitutionally wanting under the U.S. Constitution if the balancing of the severity of the interference with individual liberty is not outweighed by the gravity of the immediate pressing need for public safety and if the result of the activities which interfere with individual liberty does not adequately serve the public need. This balance prong of the reasonableness test, of course, is at the heart of any inquiry about constitutionality under both the U.S. Constitution and the N.J. Constitution and ought to be applied by a *278 trial court for any warrantless stop by any government of any person for any reason other than a particularized suspicion involving the stopped person. In Brown, Chief Justice Burger wrote for a unanimous court that "The reasonableness of seizures that are less intrusive than a traditional arrest, depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers,'. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." 443 U.S. at 50-51, 99 S.Ct. at 2640, 61 L.Ed.2d at 361 (citations omitted). In Bruzzese, Justice Garibaldi wrote that "a warrantless search is presumed to be invalid. Hence the State must prove the overall reasonableness and validity of [such a] search." 94 N.J. at 218. The Bruzzese court held that all the recognized exceptions to the warrant requirements of either the Fourth Amendment to the U.S. Constitution or Article I, paragraph 7 of the N.J. Constitution are justified only on the grounds of reasonableness. State v. Bruzzese, id. In Kirk, Judge King wrote that the State must prove that the "roadblock or checkpoint was reasonable or justified in the circumstance." 202 N.J. Super. at 55-56. It is incumbent, then, upon a trial court to apply the balance prong of the reasonableness test which the Brown and Bruzzese and Kirk courts mandated.
A second prong of the reasonableness test must also be applied because another right ostensibly interfered with here freedom to travel is itself a fundamental liberty, the interference with which requires the State to meet the strict scrutiny prong of the reasonableness test in addition to the balance prong discussed heretofore.
Freedom to travel has long been recognized as a basic right *279 under the U.S. Constitution.[5]Attorney General of New York v. Soto Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986); Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974); Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600, 613 (1969); United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 16 L.Ed.2d 239, 249 (1966). In Shapiro v. Thompson, the State of Connecticut imposed as a condition to receiving welfare benefits a one year residency period. Justice Brennan wrote for the Supreme Court that any state action "which serves to penalize the exercise of that right (to travel freely), unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." 394 U.S. at 634, 89 S.Ct. at 1331, 22 L.Ed.2d at 615 (emphasis in original). The right to travel is a "virtually unconditional personal right," Shapiro, 394 U.S. at 643, 89 S.Ct. at 1331, 22 L.Ed.2d at 620, the exercise of which may not be restrained more than incidentally except under the strict scrutiny test. "The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clause of the Fifth and Fourteenth Amendments." Jones v. Helms, 452 U.S. 412, 419, 101 S.Ct. 2434, 2440, 69 L.Ed.2d 118, 124-125 (1981).
It is a fundamental and well-grounded principle of constitutional construction that whenever a state action infringes upon a constitutionally protected fundamental liberty, the court must undertake highly intensified or strict scrutiny of that action. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1281, 36 L.Ed.2d 16, 40 *280 (1973). In such cases, the State must come forward with a compelling state need, and a demonstration that the state action which supports the compelling state need is the least restrictive means available to the State under the circumstances and actually does serve the need. Attorney General of New York v. Soto Lopez, 476 U.S. at 902-903, 106 S.Ct. at 2321-22, 90 L.Ed.2d at 505; Barone v. Department of Human Services, 107 N.J. 339, 364-365 (1987). If there are other reasonable ways to achieve the state's goal, with at least one causing lesser burden on constitutionally protected activity, "a state may not choose the way of greater interference." Smith v. Paulk, 705 F.2d 1279, 1284 (10th Cir.1983) citing San Antonio School District v. Rodriguez, 411 U.S. at 16-17, 93 S.Ct. at 1287, 36 L.Ed.2d 16 (1973) and Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972).
Returning now to an application of the aforestated federal and New Jersey constitutional principles to the facts in this case, it becomes clear that the roadblock here under scrutiny (a) did not balance the gravity of the public's legitimate immediate law enforcement needs against the severity of the interference with individual fundamental liberties and (b) was not reasonable under the strict scrutiny test. On September 12, 1986, between 7:30 p.m. and midnight, as a result of the roadblock here under scrutiny, traffic came to a complete halt from Fort Lee, New Jersey, over the George Washington Bridge, down the West Side Highway in Manhattan to West 56th Street; from Fort Lee, New Jersey, across the George Washington Bridge, up Route 95 to Riverdale in the Bronx; and from Fort Lee, New Jersey, across the George Washington Bridge, over the top of Manhattan, down the FDR Drive, and across the Triboro Bridge in Queens. Captain Robert Herb of the Bergen County Police Department, (at this writing the Sheriff of Bergen County), who was the highest ranking uniformed officer supervising the roadblock, testified that as a result of the roadblock here under scrutiny over one million motor vehicles came to a complete stop, in some cases for in excess of four hours, and that it was not until some hours after the roadblock in Fort Lee *281 itself was dismantled that this traffic morass of monumental proportions unwound itself. Out of this serious impediment to the freedom to travel to over one million persons at one of the most heavily traveled thoroughfares in the country came fifty-nine motor vehicles which were ordered to the side of the road and searched, and from those fifty-nine vehicles there came nine arrests.
To suggest that the foregoing scenario even remotely struck a balance (i.e., gravity of public need versus severity of interference with liberty) as required by Brown v. Texas, and State v. Bruzzese, and State v. Kirk, is to reject the notion of balance itself. Balance requires respect and equipoise, i.e., a mutual recognition of the relation of the rights and needs of one entity to the other, and the diminution of one of the entities only to the extent of the legitimate pressing directly conflicting needs of the other entity.[6] The State here has not shown even a prima facie balancing. To stop one million vehicles in order to search fifty-nine vehicles and arrest nine persons shows no healthy respect by the State for the rights of persons both to be free from governmental intrusion and to travel freely on public highways and seriously and egregiously diminishes those rights substantially beyond the legitimate pressing needs of the public. This is the type of unbridled discretion whether directed *282 by civilians or police which Kirk condemned. 202 N.J. Super. at 39, 43-44.
From this substantial quantitative disparity between the numbers whose rights were violated and the numbers arrested arises an inquiry as to the qualitative imbalance. The result of this roadblock is clear evidence that roadblocks do not always serve the need for which they were intended. A greater number of persons manned this roadblock than were actually arrested. Could not this manpower be better utilized to scrutinize highways near establishments which serve alcohol or dens of iniquity suspected of selling drugs? Is not the State wasting the talents of police trained to detect erratic motorists by isolating that talent in one tight location and utilizing it to observe motor vehicles which have already come to a complete halt? Should not the State which here violated the liberty of at least fifty-nine persons to be free from unreasonable government intrusion and the liberty of at least one million persons to travel freely realize that the likelihood of finding a person who is committing a crime when the person exhibits not a scintilla of suspicion is slim? The Chief Justice in Brown could very well have entertained these inquiries when he wrote for a unanimous court that trial judges must assess "the degree to which the seizure advances the public interest," 443 U.S. at 51, 99 S.Ct. at 2640, 61 L.Ed.2d at 362. Consistent with Brown, the Appellate Division in Kirk held that only roadblocks which have a "substantial benefit to the public" will meet state constitutional muster. 202 N.J. Super. at 55 (emphasis added). The State has not produced convincing evidence that this roadblock served the public interest; it cannot now be heard to argue that an egregious invasion of constitutionally protected fundamental liberties is a reasonable and acceptable by-product of serving that public interest. Such argument is a non sequitur.
Notwithstanding the State's fatal failure to survive the balance prong of the reasonableness test, this Court will continue to address the public policy implications of this roadblock. Here, where the activity intervened is itself a constitutionally *283 protected fundamental liberty freedom to travel and where the intervention is more than incidental (e.g., to pay a toll, to travel at a safe speed, to detour because of a collison, etc.), the reasonableness test has a second prong which requires the State to pass the strict scrutiny analysis (See ante at 278-280). As Kirk prudently observed, the dangers of driving a motor vehicle under the influence of alcohol or drugs are self-evident and the potential for harm caused by abusers of alcohol and users and transporters of illegal drugs behind the wheel and elsewhere is extraordinary. 202 N.J. Super. at 56-58. Clearly, New Jersey does have a compelling state interest in highway safety and stopping transportation of illegal drugs, but law enforcement personnel do not have the right to use extraconstitutional means to address that compelling state interest unless they can show that all other less restrictive means have failed or are likely to fail. The State has not made such a showing here. Here, the State asserted the source of persons driving under the influence of alcohol or drugs or transporting illegal drugs was Washington Heights in Manhattan. The State made no effort to interdict the drugs or discover their intended route at their source. The police, in conjunction with other law enforcement agencies, should physically observe automobiles as they maneuver about Washington Heights in known drug-selling neighborhoods; they should look for signs of drug-related activities involving (potential) occupants of vehicles which (further observation may reveal) make their way to New Jersey; they should follow persons in automobiles whom they suspect are driving while intoxicated or involved in drug-related activities and develop sophisticated means of identifying persons driving under the influence of drugs or alcohol; they should utilize their training and sources to detect alcohol or drug-related activities of motorists and look for signs of erratic driving and acquire articulable suspicion *284 and interdict the persons involved.[7] "Absent some empirical data to the contrary, it must be assumed that finding" a drunk or drugged motorist among those who exhibit some erratic or inculpatory behavior "is much more likely an event than finding" a drunk or drugged motorist from among one million vehicles stopped because of a roadblock. Prouse, 440 U.S. at 659, 99 S.Ct. at 1399, 59 L.Ed.2d at 671. "If this were not so" then drunk and drugged motorists would hardly pose the threat to the safety of our highways which recent history and common sense have told us that they do. Id. "It seems common sense that the percentage of all drivers on the road who are driving" under the influence of alcohol or drugs "is very small and that the number [of law abiding motorists] who will be stopped" at roadblocks "in order to find one" violating the law "will be large indeed." Id. at 659-660, 99 S.Ct. at 1399-1400.
The showings which this opinion underscores the Brown and Bruzzese and Kirk arbitrariness test and reasonableness test with the balance prong and the strict scrutiny prong should not be viewed lightly. The notion that because very special and unique governmental and public interests could not adequately be served if a traditional case-by-case individual articulable suspicion were required may be a basis under Camara for relaxed Fourth Amendment protection in the case of administrative and regulatory searches is an enormous leap from the circumstances of a roadblock. The police at a roadblock are not looking for violations of zoning or health or labor regulations; they are looking for hard evidence of serious criminality, the consequences of which in New Jersey expose motorists and their passengers to heavy sanctions. The facts here under scrutiny demonstrate that a seizure pursuant to a neutral plan, conducted by high level civilian authorities, located at a statistically chosen, publically announced site of a *285 person merely because he is a member of a class motorists lawfully on a public thoroughfare at a given time and place may be as much a seizure with consequences as burdensome and just as repugnant to the Fourth Amendment to the U.S. Constitution and to Article I, paragraph 7 of the N.J. Constitution as is a seizure randomly conducted by a single police officer of a person lawfully present on a public sidewalk.[8] Chief Justice Burger recognized this when he wrote in Prouse that:
An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. [440 U.S. at 662-3, 99 S.Ct. at 1355-56, 59 L.Ed. at 673,] (citations omitted, emphasis added).
The emphasized words are of enormous historical, constitutional, and practical importance. They reflect the long held and *286 fundamental notion that any stop of any person by any government for any reason short of articulable suspicion can be so egregious an interference with personal liberty in a free society that only under the strict scrutiny test may it be condoned. Because the State here failed both the balance and the strict scrutiny analyses, (though either failure alone requires invalidation of the roadblock), this roadblock is per se unreasonable and thus is constitutionally infirm.
III. The Commerce Clause Implications.
The location of a roadblock a few yards from an interstate border and the magnitude of the traffic delay caused by it necessarily raise questions as to the extent to which the State's actions here under scrutiny impermissibly affected interstate commerce. The Commerce Clause of the United States Constitution is "a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce." South Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71, 76 (1984). This limitation is not absolute since states "retain authority under their general police powers to regulate matters of `legitimate local concern' even though interstate commerce may be affected." Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 36, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702, 711 (1980).
The New Jersey Supreme Court recently held that New Jersey's actions "affecting [interstate] commerce will be upheld if (a) the regulation is rationally related to a legitimate state end, and (b) the regulatory burden imposed on interstate commerce, and any discrimination against it, are outweighed by the state interest in enforcing the regulation." First Family Mort. Corp. v. Durham, 108 N.J. 277, 284 (1987).
The U.S. Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137, 178, 90 S.Ct. 844, 847, 25 L.Ed.2d 174, 178 (1970), held that where the state action "regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate *287 commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."
Professor Tribe has cautioned that "[e]ven if state action does not go so far as to prohibit the very acts which the federal government requires (or vice versa), it may nonetheless be struck down if it is in `actual conflict' with the objectives that underlie federal enactments. Thus, state action must be invalidated if its effect is to discourage conduct that federal action seeks to encourage." Tribe, American Constitutional Law 378 (1978). The U.S. Supreme Court has held since as far back as 1897 that citizens have a right, free from unreasonable state restraints, to engage in interstate commerce, Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897). That right stems dually from Congress' determination to facilitate free trade among the states, see Frankfurter, J., writing for the Court in McLeod v. J.E. Dilworth Co., 322 U.S. 349, 330, 64 S.Ct. 1030, 1026, 88 L.Ed. 1304, 1306 (1944), "The very purpose of the commerce clause was to create an area of free trade among the several States", and from the privileges or immunities clause of the U.S. Constitution, see Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649 (1891). While not all state action which facially restrains interstate commerce necessarily contravenes federal purposes, Pike v. Bruce Church, Inc., a court must analyze the federally guaranteed rights of individuals whose commercial activities were restrained by this roadblock. See Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976), in which the court endorsed Congress' continued affirmative intention to remove all barriers to interstate commerce.
*288 The state action here under scrutiny again fails to meet federal constitutional muster because it imposed a burden on interstate commerce substantially greater than any benefit derived on account of the imposition, and because it isolated New Jersey from a problem common to all states in a manner which for several hours halted all commerce on one of the nation's busiest interstate thoroughfares. See Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (a state may not, absent congressional consent, isolate itself from a problem common to all states by impeding interstate commerce). While the U.S. Supreme Court has never required the application of the strict scrutiny test to interstate commerce, (but cf., discussion of Shapiro v. Thompson, ante at 279), it nonetheless in Pike v. Bruce Church, Inc., required lower courts, in conducting a balancing analysis, to inquire as to the availability of accommodation.
The discussion, ante, of balancing with respect to Fourth Amendment protection needs modification for Commerce Clause analysis. Notwithstanding the compelling state interest the State has in ridding its highways of motorists influenced by drugs or alcohol or transporting drugs, it may not, absent congressional consent, stop all commerce at a major interstate border in order to address that interest.
Applying the foregoing federal constitutional principles to the facts in this case, it is clear that the total immobilization of vehicular traffic as set forth above albeit on a Friday evening in mid-September is a serious substantial restraint on interstate commerce vastly out of proportion to the putative benefits the detection of nine drunk or drugged motorists and one which only the Congress could authorize. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258, 269 (1964), Justice Clark wrote for a unanimous court that "[I]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.... Thus the power of Congress to promote interstate commerce also includes the power to regulate *289 the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce."
While the balancing here, too, requires equipoise and respect, see ante at 280-282, it need not be as exacting or refined a balancing as in the case of a fundamental liberty at tension with a compelling state interest. Notwithstanding that more impedence of interstate commerce would be condoned than was strictly needed in a given case (the State must show accommodation of interstate commerce, not precise balancing), the impedence here near total cessation of commerce at a major interstate thoroughfare for several hours cannot seriously be said to be balanced with the benefit the detection of evidence of criminality involving nine persons. It is not only the numerical disparity here which compels the conclusion that the State's need to maintain safe highways was not outweighed by its interference with interstate commerce, it is the State's utter disregard for interstate commerce, its failure to accommodate by any alternative means legitimate commercial needs at this heavily travelled interstate border, which also compels the conclusion that the Commerce Clause was violated. Facial interference with interstate commerce does not trigger a strict scrutiny analysis, but it does require both a facial balance and an accommodation to the needs of legitimate commerce. The State here elected to address neither.
IV. Conclusion.
Where a police roadblock stops vehicles lawfully present on a public thoroughfare for the purpose of detecting evidence of criminality, in order to survive a constitutional challenge under both the U.S. Constitution and the N.J. Constitution, the roadblock must be reasonable, i.e., the State must show absence of arbitrariness, it must balance the gravity of public needs against the severity of interference with individual liberties, and where the right to travel is more than incidentally *290 interfered with, the roadblock must pass the strict scrutiny test. Where interstate commerce is more than incidentally affected, the State, absent congressional consent, must show some balance of its needs against, and an accommodation of, legitimate commercial interests. The roadblock here under scrutiny was not reasonable because it resulted in a more severe invasion of individual liberties than public needs required and was not the least restrictive means to address those needs; moreover, it made no accommodation for interstate commerce. In accordance with the foregoing, the evidence seized by the police from these defendants at this roadblock is suppressed.
NOTES
[1] Although the State has not challenged jurisdiction, it should be noted that the Superior Court of New Jersey has jurisdiction to rule upon federal questions. Smayda v. United States, 352 F.2d 251, 253 (9th Cir.1965); Vassar v. Raines, 274 F.2d 369, 371 (10th Cir.1959), cert. den., 362 U.S. 982, 80 S.Ct. 1069, 4 L.Ed.2d 1016 (1959); Aftanase v. Economy Baler Co. 343 F.2d 187 (8th Cir.1965).
[2] While the wording of the Fourth Amendment to the U.S. Constitution and Article I, paragraph 7 of the New Jersey Constitution are almost identical, State v. Kirk, 202 N.J. Super. at 35, case law has consistently held that the New Jersey Constitution may afford greater protection of freedom from intrusion by the government than does the United States Constitution. See Michigan v. Long 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (state courts are free to interpret their constitutions so as to enhance constitutional liberties); State v. Hunt, 91 N.J. 338 (1982) (N.J. affords greater protection of telephone billing records than does federal law); State v. Alston, 88 N.J. 211 (1981), (standing to challenge search and seizure); State v. Johnson, 68 N.J. 349 (1975) (consent to search); and State v. Novembrino, 105 N.J. 95 (1987) (no good faith exception to the exclusionary rule).
[3] In as far back as 1927, Justice Brandeis wrote in a famous and often quoted dissent that "[the founders] conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 956 (1928).
[4] Since Kirk was decided, several state courts have, for different reasons, invalidated roadblocks. Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988) (state constitution requires particularized suspicion for any governmental stop); State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988) (roadblocks do not serve a legitimate public purpose sufficient to justify invasion of fundamental liberties under Brown v. Texas); State v. Boyanovsky, 304 Or. 131, 743 P.2d 711 (1987) and Nelson v. Lane County, 304 Or. 97, 743 P.2d 692 (1987) (state constitution requires particularized suspicion for any governmental stop).
[5] In as far back as 1849, Chief Justice Taney wrote in Smith v. Turner, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702, 790 (1849) that "For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States."
[6] It would be inherently unfair, when applying the balancing test, to place on one side of the scale the entire accumulated interest of the State and on the other side of the scale a single defendant's constitutionally protected fundamental liberties. A fairer balancing mechanism, and one called for by the plain language of Brown, see ante at 277-278, would weigh the actual benefits derived by the roadblock under scrutiny against all the liberties invaded by the government because of the subject roadblock. See Seattle v. Mesiani, supra, and State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980) (Linde, J., dissenting). The State here introduced no evidence of seizures or arrests from elsewhere throughout this roadblock. Even if a few hundred more persons were seized and a few dozen more persons were arrested at other checkpoints throughout this roadblock, the imbalance here is no less substantial.
[7] The foregoing contains only suggested alternatives and is not intended to be exclusive. Law enforcement professionals are more competent than this court at devising constitutional means of obtaining articulable suspicion.
[8] Kirk quoted with approval the eloquent summary of this problem by Justice Feldman of the Supreme Court of Arizona:
The question has frightening implications. The thought that an American can be compelled to "show his papers" before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals. If roadblocks can be maintained to stop all persons, regardless of how innocent their conduct, for the purpose of investigating or apprehending drunk drivers, then presumably similar stops of all citizens could be undertaken for questioning and surveillance with regard to other crimes, such as possession of narcotics, possession of stolen property or burglary. It might be argued that if the law did permit such stops, we would have less crime. Nevertheless, our system is based on the idea that the risk of criminal activity is less of a danger than the risk of unfettered interference with personal liberty. [State ex rel. Ekstrom v. Justice Ct. of State, 136 Ariz. 1, 663 P.2d 992, 997 (1983) (Feldman, J., concurring); cited in 202 N.J. Super. at 52.]
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379 Pa. Super. 247 (1988)
549 A.2d 999
Martin T. HUTCHINSON, Appellant,
v.
Barbara Ann HUTCHINSON.
Supreme Court of Pennsylvania.
Argued August 31, 1988.
Filed October 28, 1988.
*248 James L. Moran, Erie, for appellant.
Ann H. Gamble, Titusville, for appellee.
Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
TAMILIA, Judge:
This appeal evolves from a custody dispute between appellant and appellee who are the parents of two young boys, *249 ages eight and six. Pursuant to a separation agreement and subsequent court Order, appellant was the primary caretaker of the children with appellee having visitation as agreed upon by the parties with the minimum visitation schedule being alternate weekends and holidays. Due to appellant working the swing shift consisting of considerable evening and weekend hours, appellee spent every weekend and some evenings with the boys. This arrangement changed, however, with appellant's new work schedule and appellee's remarriage. Once appellant no longer had to work evening and weekend hours, he insisted upon visitation being limited to the minimum set forth in the agreement. Although appellant claims his insistence was due to his free time being the same as appellee's, this limiting of appellee's visitation coincided with appellee's remarriage. Appellant testified he was concerned about the children's welfare since he believed appellee did not supervise the children closely enough or discipline them properly.
Appellee petitioned the court for a change of custody which ultimately resulted in her receiving shared custody and a considerable increase in visitation over what she had been given under the prior Order. Appellant appeals from this new Order, raising two issues: 1) whether the trial court erred in modifying the custody Order when appellee failed to prove a substantial change in circumstances; and 2) whether modification was in the best interest of the children.
Although we have a broad scope of review in custody matters, we cannot replace the trial court's determination with our own independent determination. Only where the trial court commits a gross abuse of discretion will we interfere with its decision. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). After thoroughly reviewing the record we find no reason to interfere with the trial court's Order.
Appellant claims there has not been a substantial change in circumstances which would warrant reconsideration of the prior custody Order. The law in Pennsylvania *250 has changed, however, under Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), and changed circumstances are no longer required for a court to review custody Orders. "[W]e hold that a petition for modification of a partial custody to shared custody order requires the court to inquire into the best interest of the child regardless of whether a `substantial' change in circumstances has been shown." Id., 518 Pa. at 607-608, 544 A.2d at 1332.[1]
Notwithstanding the fact changed circumstances are not required to initiate the inquiry and the focus must be the best interests of the children, we find there were substantial changed circumstances in this case which impel review of what is in the children's best interest to justify the trial court's consideration of appellee's motion. Best interest cannot be considered in a vacuum and were the circumstances unchanged from those that resulted in the initial custody arrangement, it must be presumed that what was in the child's best interest continues. What Karis has required is that without a preliminary showing of changed circumstances, the review of what is in the child's best interest must be entertained despite spurious petitions and unsubstantiated contentions. Thereafter, if the court perceives *251 that it is in the child's best interest because of some shifting circumstance or need occasioned by the dynamism of the process of growth and maturity of the children, as well as the circumstances of their parents' lives, best interest requires a degree of flexibility such as would allow the court the discretion to make necessary changes. Thus changed circumstances is incorporated into the review of best interest instead of being a prerequisite for undertaking that review. Appellant's changed work schedule resulted in the parties competing for time with the children since appellant now was off work every weekend and evenings which had often been appellee's visitation time. Appellant severely cut back appellee's visitation to the minimum set forth in the agreement. As the court found, appellee stabilized her financial and emotional position by remarrying and she holds a job with the United States Postal Service which is only two hours per day. This allows her plenty of free time during the day to spend with the boys while appellant is at work, although appellant has refused to agree to this. Under these circumstances, the court was correct in deciding a review of the custody Order was necessary. Karis requires it.
Our goal in child custody matters is to do what is in the best interests of the children. The trial court concluded the best interests of the boys would be served by spending more time with their mother than appellant had allowed, even though the boys expressed a desire to keep things the same. The court determined the boys' feelings were influenced too much by appellant to be very reliable. Although a child's preference should be considered, it is not controlling. Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985).
Our review of the record leads us to find the trial court did not abuse its discretion in awarding shared custody to appellee. Appellant has not met his burden of proving otherwise, therefore, we must affirm the trial court's Order.
ORDER AFFIRMED.
NOTES
[1] Karis involved a petition for change in a custody agreement incorporated into a court Order. While the Supreme Court ruled in Karis that the inquiry into changed circumstances is not required, citing lack of such requirement in the Custody and Grandparents' Visitation Act, 23 P.C.S. § 5301 et seq., query whether the legislative intent was to eliminate such a requirement in light of the more recent legislation amending the Divorce Code in February 1988, Act 13, Section 401.1, 23 P.S. § 401.1, which provides:
Section 401.1 Effect of agreement between the parties
(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (Emphasis added.)
If we apply Karis in its broadest sense, then we must ignore the amendment to the Divorce Code of February 12, 1988. It will also require future clarification as to whether the Karis holding is limited to cases in which the requested modification is from sole custody or partial custody to shared custody. Citing to 23 Pa.C.S. § 5310, Karis, 518 Pa. at page 606-607, 544 A.2d at page 1331, states: "The language of the statutory section is plain and unambiguous; the words allow for modification of any existing custody order any time the best interest of the child requires such."
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549 A.2d 291 (1988)
Calvin Derek MOODY, Plaintiff Below, Appellant,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant Below, Appellee.
Supreme Court of Delaware.
Submitted: March 29, 1988.
Decided: September 23, 1988.
L. Vincent Ramunno, and Gordon L. McLaughlin (argued) of Ramunno & Ramunno, P.A., Wilmington, for appellant.
Michael F. Bonkowski (argued) of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellee.
Before CHRISTIE, C.J., and HORSEY, MOORE, WALSH and HOLLAND, JJ., constituting the Court en banc.
WALSH, Justice, for the majority.
This appeal involves a suit brought by plaintiff-appellant, Calvin Derek Moody ("Moody") against his insurance carrier, Nationwide Mutual Insurance Company ("Nationwide") under 21 Del.C. § 2118 for recovery of "No Fault" Personal Injury Protection ("PIP") benefits for lost wages and medical expenses resulting from his injury in an automobile accident. Moody appeals a decision of the Superior Court granting a directed verdict against him based on his failure to present sufficient evidence of lost wages upon which a jury could return a verdict in his favor. We conclude that Moody presented sufficient evidence to justify submission of his claim to the jury. Accordingly, the decision of the Superior Court is reversed.
*292 I
On February 2, 1984, Moody was involved in an automobile accident. As a result of the accident Moody was confined to bed for three weeks and was unable to work until August 1, 1985. On February 20, 1984, Moody filed with Nationwide a PIP form to recover his lost wages and medical expenses. Nationwide refused to pay Moody his lost wage benefits because he was unable to support his claim with adequate records. Moody responded by bringing this action against Nationwide seeking compensatory damages for his lost wages and medical expenses and punitive damages for Nationwide's dilatory handling of his claim. Before trial Nationwide agreed to pay Moody's medical expenses totalling approximately $2,700. The parties stipulated that the medical expenses were not "at issue," leaving for trial Moody's claim for lost wages and punitive damages.
Moody's claim for lost wages is based on his alleged ownership, along with a partner, of a car wash located in Chestertown, Maryland. Moody testified that the car wash opened January 25, 1984, eight days before his injury on February 2. At trial Moody's evidence in support of his lost wage claim consisted of his testimony and his only business record a photocopy of a single page ripped out of a small three ring notebook. This document, which was admitted into evidence at trial without objection, reflects six entries: 1/25-$65; 1/26-$195; 1/27-$175; 1/27-$195; 1/29-$77; 1/2-$99 (Moody testified that the last entry was a mistake and should read 2/2, the day he was injured). Moody explained at trial that the photocopy reflected total business gross receipts for the first week of $707. Moody then testified that his net share for the first week's receipts was determined by subtracting certain estimated expenses from gross receipts. This estimated net profit of $240 provided the basis for Moody's lost wage claim.[1]
Moody testified that after the accident he was unable to return to work at the car wash. Except for the initial payment of $240, Moody claimed to have received no other income from the operation of the business. The existence of the car wash business was verified by a Nationwide claims adjuster who visited the business after Moody filed his claim for PIP benefits. Moody testified that the adjuster took photographs of the operation and met his partner.
At the close of plaintiff's case in chief Nationwide moved for a directed verdict on Moody's claim for compensatory and punitive damages. The trial court granted the motion concluding that Moody had failed to present "substantial evidence" to prove his claim of lost earnings. The court reasoned that the photocopy offered by Moody was not a "business record" in the normal course of events and that it lacked supporting evidence, such as partnership or other business records, or the corroborative testimony of individuals who had information about the operation of the business. The court extended the directed verdict to Moody's claim for punitive damages concluding that a failure to establish compensatory damages precluded recovery of punitive damages.
II
The issue presented on this appeal is whether the trial court properly directed a verdict in favor of Nationwide, thus precluding the jury from considering Moody's claim for lost wages and punitive damages. As a general rule a plaintiff in a civil action has the burden of proving a prima facie case before the case can be submitted to the jury. Ebersole v. Lowengrub, Del. Supr., 208 A.2d 495, 497 (1965). "Upon a motion for a directed verdict after the evidence is in the duty of the trial judge is to *293 determine whether or not under any reasonable view of the evidence the jury could justifiably find in favor of the plaintiff and against the defendant. If such is the case, then he must submit the factual issues to the jury for its consideration." Id. at 497-498. Further, when considering a motion for directed verdict, the trial court, and this Court on appeal, must consider the evidence in a light most favorable to the nonmoving party. Parks v. Ziegler, Del.Supr., 221 A.2d 510, 511 (1966).
Since Moody's claim was based on the PIP coverage of his policy of insurance with Nationwide, to establish a prima facie basis for recovery he is required to present some credible evidence on the following elements: (i) that he was involved in an accident and (ii) that he suffered wage loss and/or medical expense as a result. See Webster v. State Farm Auto. Ins. Co., Del.Super., 348 A.2d 329, 331 (1975). Since Nationwide conceded the first element, the trial involved simply the proof of damages. With respect to his claim for loss of income, Moody has the burden of providing evidence offering "some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which the plaintiff will sustain in order to enable it to make an intelligent determination of the extent of the loss." Henne v. Balick, Del.Supr., 146 A.2d 394, 396 (1958) (citing Restatement of Torts § 912). "Certainty" is defined in section 912 of the Restatement of Torts as proof "with as much certainty as the nature of the tort and the circumstances permit." Restatement (Second) of Torts § 912. However, "the fact that there is some uncertainty as to plaintiff's damages or the fact that the damage is very difficult to measure will not preclude a jury from determining its value." Henne v. Balick, 146 A.2d at 396. Henne, of course, involved the projection of future damages, a task fraught with the risk of speculation. The proof of past damages, the issue in this case, is essentially an historical undertaking involving questions of credibility the resolution of which is, uniquely, a jury function.
In this case Moody has presented sufficient evidence to provide a reasonable basis for the jury to estimate with a fair degree of certainty his probable loss. Viewing the evidence in a light most favorable to Moody, the jury could "reasonably" or "fairly" conclude that he suffered lost earnings as a result of his inability to work in his car wash.
Moody supported his claim for lost wages with a photocopy of his only business record. Although of questionable quality, the photocopy provides a reasonable ground on which, if accepted as legitimate, the jury could conclude that the car wash had gross earnings of $770. Further, Moody testified that he had net earnings of $240 a week from his ownership and operation of the car wash. Specifically, during direct examination Moody testified:
A. What we did, each week, we laid so much aside for the rent, and $100 for the rent, for the electricity. We laid about $20 away for the telephone bill. Heat, oil, we laid about $25 away. And we did so much, to put aside, rather than wait until the end of the month.
Q. When you put aside so much a week, what did you have left?
A. I guess about five-hundred-some dollars. Close to.
Q. In any event, when you separated the money, what did you get?
A. $240.
Q. And what did your partner get?
A. $240.
Based on the evidence presented in his case in chief, Moody met his prima facie burden of proving his weekly wage loss. Although Moody's projection of that loss over the entire period of his claimed disability is somewhat conjectural, the jury is free to reject that projection, in full or in part, based on the evidence, or lack of evidence, supporting it. But that factual issue is one for the jury. Thus, under these facts, a directed verdict which removes the entire damages claim from the jury is improper.
Nationwide argues that the evidence presented by Moody is inconsistent and of questionable quality and, therefore, would require the jury to speculate as to *294 the amount of wages lost. This argument, however, ignores the procedural context in which the issue is posed. When deciding a motion for a directed verdict all questions concerning the credibility and quality of the evidence must be resolved in favor of the nonmoving party. See Chesapeake & Potomac Tel. v. Chesapeake Util., Del.Supr., 436 A.2d 314, 329 (1981) (citing Ebersole v. Lowengrub, 208 A.2d 495; Parks v. Ziegler, 221 A.2d 510). Although the documentary evidence in this case is fragmentary and somewhat suspect (although admitted without objection), the trial judge is not permitted to take a claim away from the jury simply because the evidence the plaintiff offers to bolster his credibility is deficient. Moody could have testified without any supporting documentation and the jury would have been required to determine whether he was being truthful. As previously noted, the potential deficiencies in Moody's testimony relate to his credibility and should be resolved by the jury, rather than by the trial judge on a motion for a directed verdict. Millman v. Millman, Del.Supr., 359 A.2d 158 (1976). Further, questions concerning Moody's credibility and the quality of his supporting evidence will undoubtedly be the focus of Nationwide's defense and upon remand, will ultimately be determined by the jury.
Finally, we consider the propriety of the Superior Court's decision to extend the directed verdict to encompass Moody's claim for punitive damages. Because we have reversed the Superior Court's decision to grant a directed verdict on Moody's claim for compensatory damages, the trial court's rationale for precluding punitive damages is no longer viable. We express no opinion on the question of whether the evidence otherwise supports a claim for punitive damages. See, e.g., Casson v. Nationwide Ins. Co., Del.Super., 455 A.2d 361, 368 (1982). That issue is not before us and, in any event, will be the subject of a fresh presentation of evidence at a retrial.
* * *
REVERSED AND REMANDED.
HORSEY, Justice, with whom CHRISTIE, Chief Justice, joins, dissenting:
We would affirm Superior Court's grant at the close of plaintiff Moody's case of a directed verdict for defendant Nationwide. In our view, plaintiff Moody failed to meet his burden of presenting sufficient evidence as the circumstances permitted to enable the jury, as trier of fact, to find with reasonable certainty the probable loss which Moody sustained. Cf. Henne v. Balick, Del.Supr., 146 A.2d 394, 396 (1958); Restatement (Second) of Torts § 912 (defining "certainty" to mean "with as much certainty as the nature of the tort and the circumstances permit"). In this case, plaintiff's probable loss must be measured in terms of Moody's share of the net profits of a new business enterprise conducted as a partnership. Thus, the question is whether Moody presented sufficient evidence that the partnership made a net profit before or after his injury for a jury to find and calculate with reasonable certainty Moody's probable loss over the eighteen months of disability for which he sought PIP benefits.
The trial court ruled that plaintiff's burden of proving his PIP claim under 21 Del.C. § 2118 for recovery of "lost earnings" was no different from the proof required in the usual tort claim for loss of business profits. The majority does not find error in that ruling, nor do we. However, the majority then finds $240 to be sufficient evidence of Moody's share of the business' net profits to date of injury for a jury to project with reasonable certainty Moody's "lost earnings" claim for the eighteen months' maximum period of PIP recovery. We cannot agree that Moody's evidence in chief viewed, as it must be, in a light most favorable to plaintiff, was sufficient for a jury to find that $240 represents Moody's share of the business' net profit to date of injury. The trial court, correctly applying Delaware law, found otherwise and that finding should be affirmed as not clearly erroneous. Drozdov v. Webster, Del.Supr., 345 A.2d 895, 896 (1975).
*295 Moody's figure of $240 represents nothing more than his admitted share of a "draw" based on six non-consecutive days of gross receipts of $707. Moody did not testify that this sum represented his share of the net earnings of the business from its first "week" of operations. He stated that this sum was what was left over after he set aside arbitrary amounts for certain, but not all, of the business' expenses. He conceded that $240 was no more than a "guess" at his share of the profit; and his attorney conceded that Moody had fialed to take into account other business expenses, including social security and income taxes, which his attorney then argued should be "about twenty percent." In our view, this testimony by plaintiff does not meet the test of reasonable certainty for estimating what Moody's share of the net profits of the business would have been for eight days or any other period of the business' actual operation. The evidence was clearly insufficient to permit a projection over eighteen months of the business' recurring net profits and Moody's share thereof.
The majority also makes a distinction between the required certainty of proof of future losses and historical losses, a distinction we question. The Court reasons that proof of future loss necessarily involves some speculation, Henne v. Balick, while proof of past loss is essentially a question of credibility rather than sufficiency of evidence. Thus, because credibility is ultimately involved, the Court concludes that the issue of damages was a matter for the trier of fact to resolve. The Court's distinction of proof of damages of an historic loss from a future loss, if valid, would, we believe, largely eviscerate the requirement that damages be proved with a reasonable degree of certainty. We also understand Delaware law to require more certainty in proof of past damages than in projecting future damages. Re v. Gannett, Del.Super., 480 A.2d 662, 668 (1984), aff'd, 496 A.2d 553, 558-559 (1985).
We also think that the majority misconstrues the trial court's bench ruling. In effect, the court rendered its directed verdict on not one, but two, findings: (1) that plaintiff failed to present "substantial evidence" to support his PIP "lost earnings" claim; and (2) that plaintiff failed to come forward with the best evidence that the circumstances permitted to establish his "lost earnings" claim. The trial court thereby implicitly and, in our view, properly rejected application of the "new business rule" to this tort case. This rule is but an extension of the general rule of the Restatement (Second) of Torts § 912 and the law of Delaware: that a plaintiff may not recover damages for loss of income tortiously caused without providing the trier of fact with "some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which the plaintiff will sustain." Drozdov, 345 A.2d at 896.
Under the "new business" corollary to section 912, a number of jurisdictions, including Delaware, have denied any recovery of loss of profits for a business that, unlike an established business, has no history of profits. The rationale for the "new business" rule is that the outcome of a new business is too uncertain for calculation of projected profits to permit recovery of loss of profits where the new business has no history of profits. Re v. Gannett Co., Inc., Del.Super., 480 A.2d 662, 668 (1984), aff'd, 496 A.2d 553, 558-559 (1985); 22 Am.Jur.2d Damages § 173 at page 245; Restatement (Second) of Law of Contracts § 352. Other jurisdictions decline to preclude recovery of lost profits for a new business if the amount of lost profits can be shown with reasonable certainty. Dobbs, Handbook on the Law of Remedies § 3.3 (1973).
In tort cases in particular, there are exceptions to the requirement of proof of lost profits to a reasonable certainty, even as to new businesses. One of these exceptions is the best available evidence exception. McCormick, Handbook on the Law of Damages (1935) (pp. 101-103). Under this exception, the best available evidence will be sufficient if it provides a "reasonable basis for computation [and is] the best evidence which is obtainable under the circumstances of the case and which will enable the jury to arrive at an approximate estimate of the loss...." Hoffer Oil Corporation *296 v. Carpenter, 10th Cir., 34 F.2d 589, 592 n. 18 (1929); Olivetti Corp. v. Ames Business Systems, Inc., N.C.Ct.App., 81 N.C.App. 1, 344 S.E.2d 82, 91 (1986). This more liberal rule has particular application to tort actions for recovery of losses suffered in new business undertakings. It appears to us that the trial court was prepared to apply this exception in this case but declined to upon finding plaintiff Moody to have failed to have come forward with the best evidence of his business' profitability that the circumstances would permit.[1] In our view, the record supports this finding; and such a finding of fact cannot be found to be clearly erroneous. The trial court directed a verdict for defendant for failure of plaintiff's proof to meet the sufficiency of the evidence test for an award of damages. That threshold determination was for the court to make; and the court made that determination through a correct application of the law of damages to the facts.
NOTES
[1] In his opening statement, Moody's attorney told the jury that the $240 minus about twenty percent for taxes and social security would represent Moody's net pay. The total claim for lost damages of $12,335.25 was determined by multiplying the net pay by the number of weeks between the date of injury and 8/1/85 (representing the day Moody was permitted to return to work) subject to a cap representing the insurance coverage limit of $15,000 minus the medical expense payment of $2,700.
[1] The trial court stated in part in its bench ruling, "a self-employed person has all kinds of avenues to establish his loss of earnings normally... plaintiff can't walk into court with a piece of paper like this and make out a claim. It is pure conjecture that you are asking this jury to conclude that he has lost money and how much it would be." We interpret the trial court as accepting and applying the Restatement's definition of "certainty" of proof as meaning "with as much certainty as the nature of the tort and the circumstances permit." Restatement (Second) of Torts §§ 9, 12.
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549 A.2d 1044 (1988)
In re BURLINGTON BAGEL BAKERY, INC.
No. 87-035.
Supreme Court of Vermont.
May 13, 1988.
Peter F. Langrock and John L. Kellner of Langrock Sperry Parker and Wool, Middlebury, for plaintiff-appellant.
Thomas F. Heilmann and Christopher D. Ekman of Thomas F. Heilmann, P.C., Burlington, for defendant-appellee.
Before PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.
PECK, Justice.
Petitioner, Burlington Bagel Bakery, appeals from an order of the Chittenden Superior Court denying its petition to obtain preaction discovery pursuant to V.R.C.P. 27(a). Although we do not reach the merits of the issue, we reverse and remand.
Petitioner asserts that Bruegger's Bagel Bakery is about to open a bagel bakery in Vermont in violation of a noncompetition agreement entered into between petitioner and a co-owner of Bruegger's. Because Bruegger's has not yet opened a bagel bakery in Vermont, petitioner argues that an action is not ripe against Bruegger's. Petitioner seeks to depose the co-owner of Bruegger's who allegedly agreed never to open a competing bagel bakery in Vermont, in order to perpetuate testimony to guard against the "fading memories of the parties."
The superior court denied the petition. It stated that petitioner failed to make the showing necessary under V.R.C.P. 27(a) to warrant preaction discovery. Specifically, *1045 the court stated that the general assertion by petitioner that it "has been informed that Bruegger's intends in the near future to open in the Burlington area a bagel bakery...." was not sufficient to convince the court that the extraordinary procedures of Rule 27 are required.
First, we must address the issue of this Court's jurisdiction to hear this appeal. In general, discovery orders are not subject to immediate appeal, since, so long as the underlying litigation is still pending, the order is not considered "final." See Pacific Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1306, 98 S. Ct. 2, 3, 54 L. Ed. 2d 17 (1977). To be final and appealable an order must end litigation on the merits or conclusively determine the rights of the parties, leaving "`nothing for the court to do but execute the judgment.'" Nagle v. Lee, 807 F.2d 435, 438 (5th Cir.1987) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945)).
In this case, the court's order denied the relief sought in the petition and completely disposed of the proceeding below. Consequently, we conclude that the order denying the deposition to perpetuate testimony under V.R.C.P. 27 is appealable as a final order. See Martin v. Reynolds Metals Corp., 297 F.2d 49, 52 (9th Cir.1961); Mosseller v. United States, 158 F.2d 380, 382 (2d Cir.1946); see also State v. Lafayette, 148 Vt. 288, 290-92, 532 A.2d 560, 561-62 (1987) (in applying the final judgment requirement we are guided by the federal requirement and its exceptions).
Petitioner argues on appeal that the superior court improperly denied its petition under Rule 27. V.R.C.P. 27 gives the presiding judge discretion to grant a petition for preaction discovery if he or she "is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice." V.R.C.P. 27(a)(3); see also Castle v. Sherburne Corp., 141 Vt. 157, 164, 446 A.2d 350, 353 (1982) (trial court has discretion as to matters of discovery). When a matter is left to the trial court's discretion, its action will not be reversed by this Court unless it appears that the court withheld or abused its discretion. See In re T.S., 144 Vt. 592, 594, 481 A.2d 21, 22 (1984); In re Norris Trust, 143 Vt. 325, 327, 465 A.2d 1385, 1387 (1983).
In this case, we hold that the trial court abused its discretion. The court based its denial on the sole grounds that petitioner "did not supply sufficient support for its allegation that Bruegger's was going to open a bagel bakery in violation of the alleged non-competition clause." The court did not, however, request presentation of evidence on this matter, and no evidence was given by either party as to the truth of petitioner's allegation. Normally, "[t]his Court will not reverse a trial court on the basis of essential evidence which would have been, but was not, presented to it for consideration." Schott v. Baker, 132 Vt. 564, 565, 326 A.2d 157, 158 (1974). However, where "[i]mportant findings of fact were made that had no basis other than argumentative assertions of counsel[,] ... the hearing was incomplete and ... the findings of fact, conclusions of law, and judgment must all be stricken." Baird v. Eldredge, 132 Vt. 618, 619, 326 A.2d 171, 172 (1974). Therefore, although we do not reach the merits of this appeal, we remand for a full hearing.
REVERSED AND REMANDED.
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124 Cal. Rptr. 2d 312 (2002)
101 Cal. App. 4th 510
In re TINO V., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Tino V., Defendant and Appellant.
2d Juv. No. B155183.
Court of Appeal, Second District, Division Six.
August 22, 2002.
Richard C. Gilman, under appointment by the Court of Appeal, Oxnard, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Mary Sanchez, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Here we hold Welfare and Institutions Code section 1769, subdivision (b)[1] authorizes *313 California Youth Authority (CYA) commitments to age 25 for juveniles under 16 years who commit an offense listed in section 707, subdivision (b).
At age 14, Tino V. (Tino) committed 2 separate offenses of assault with a deadly weapon. (Pen.Code, § 245, subd. (a)(1).) He appeals the order that extended his commitment to CYA until age 25. We affirm.
FACTS
In 1997 the juvenile court sustained a section 602 petition and found true the allegations that Tino committed two counts of assault with a deadly weapon.[2] Tino was 14 years old when he committed the offenses.
The court placed Tino on probation in the custody of his parents. After he "failed to reform" on probation, the court committed him to CYA for a maximum period of five years and six months. CYA requested the court to determine whether Tino's offenses came within section 707, subdivision (b). Section 707, subdivision (b) lists the offenses for which a minor may be tried as an adult if the minor is 16 years of age or older and not amenable to treatment in the juvenile court. The trial court decided that assault with a deadly weapon is listed in section 707, subdivision (b) and it extended the CYA's jurisdiction over Tino to age 25.
DISCUSSION
Juvenile Commitments to Age 25 for Offenders Under Age 16
In 1982 the Legislature amended the Welfare and Institutions Code to extend both juvenile court jurisdiction and CYA commitments to age 25 for minors who commit serious offenses. (Assem. Bill No. 961, Stats.1982, ch. 1102, §§ 1-2, pp. 4003-4004.) It added subdivision (b) to section 607 which provides: "The court may retain jurisdiction over any person who is found to be a person described in Section, 602 by reason of the commission of any of the offenses listed in subdivision (b) ... of Section 707 until that person attains the age of 25 years...." (Italics added.) It also added subdivision (b) to section 1769 which provides: "Every person committed to the Department of the Youth Authority by a juvenile court who has been found to be a person described in Section 602 by reason of the violation of any of the offenses listed in subdivision (b) ... of Section 707, shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 25th birthday, whichever occurs later...." (Italics added.)
Tino concedes his offenses are listed in section 707, subdivision (b), but notes that section 707, subdivision (b) applies to minors "16 years of age or older." He argues that because section 1769, subdivision (b) refers to section 707, subdivision (b), the CYA extended commitment also must apply only to minors 16 years of age or older, and therefore not to him.
In determining the meaning of a statute, we look first to the words the Legislature used. (Delaney v. Superior Court (1990) 50 Cal. 3d 785, 798, 268 Cal. Rptr. 753, 789 P.2d 934.) "`If the language is clear and unambiguous there is no need for construction, nor is it necessary *314 to resort to indicia of the intent of the Legislature....'" (Ibid.)
Here the language is clear. Both sections 607, subdivision (b) and 1769, subdivision (b) refer to the offenses in section 707, subdivision (b), but only to designate the offenses that trigger extended commitments. Sections 607 and 1769 do not refer to section 707's 16-year age requirement, but they do refer to section 602. Section 602, subdivision (a) applies to "any person who is under the age of 18 years" and subdivision (b) apply to those "14 years of age or older." Tino was 14 years old at the time of his offenses and thus comes within these sections.
Nevertheless, Tino contends it is the Legislature's intent that section 1769, subdivision (b) apply only to minors who were at least 16 years of age at the time of the offense. In interpreting section 607, subdivision (b), In re Julian O. (1994) 27 Cal. App. 4th 847, 32 Cal. Rptr. 2d 193 (Julian) rejected this argument. "The only conceivable intent which can be attributed to the Legislature is that it intended to extend the scope of section 607, subdivision (b) to minors of all ages." (Id. at p. 851, 32 Cal. Rptr. 2d 193) The court noted that the section previously applied to older minors. But in 1982 the Legislature amended it "by eliminating the language restricting its application to minors 16 years of age or older. [Citation.]" (Ibid.) Section 707, subdivision (b) "has nothing to do with commitments to the California Youth Authority." (Id. at p. 850, fn. 2, 32 Cal. Rptr. 2d 193.) Its purpose is to list those offenses which, when committed by a minor 16 years of age or older, "trigger a presumption that the minor is unfit to be dealt with under the juvenile court law. [Citation.]" (Id. at p. 850, 32 Cal. Rptr. 2d 193.) The court "refuse[d] to view the ... 1982 amendment of section 607, subdivision (b) as a pointless act." (Ibid.)
Tino contends that Julian was inapposite because it did not review section 1769, subdivision (b). He contends it has a different legislative history which yields a different result. We disagree.
Sections 607 and 1769 were amended to "delete the language limiting the application of the provision to persons who were 16 years of age or older at the time of the offense," and to increase the juvenile court's retention of jurisdiction and CYA commitments to age 25. (Legis. Counsel's Dig., Assem. Bill No. 961, 6 Stats. 1982 (1981-1982 Reg. Sess.) Summary Dig., p. 372.) That is what the juvenile court properly did here.
The order is affirmed.
We concur: YEGAN and COFFEE, JJ.
NOTES
[1] All statutory references are to the Welfare and Institutions Code unless stated otherwise.
[2] Section 602 states in part: "(a) Except as provided in subdivision (b), any person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court."
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632 F. Supp. 1140 (1986)
Beauford WHITE, Petitioner,
v.
Louie WAINWRIGHT, Respondent.
No. 85-2979-CIV.
United States District Court, S.D. Florida.
March 31, 1986.
*1141 Thomas G. Murray, Asst. Public Defender, Eleventh Judicial Circuit of Florida, Miami, Fla., for petitioner.
Calvin Fox, Asst. Atty. Gen., Miami, Fla., for respondent.
MEMORANDUM OPINION AND ORDER
MARCUS, District Judge.
Petitioner Beauford White, a State prisoner currently on death row, has filed this habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging the imposition *1142 of the death sentence upon conviction of six counts of first degree murder.
At the core of this habeas corpus challenge is the contention that the imposition of the death sentence violates the flat command of Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), and the Eighth Amendment to the United States Constitution which forbids the imposition of the death penalty on "one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id. at 797, 102 S. Ct. at 3376. Three additional arguments are urged upon this Court: that the reimposition of the death penalty by the Supreme Court of Florida after it was vacated by the trial court on collateral attack violates the double jeopardy clause within the meaning of Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981); that Section 921.141(5)(h) of the Florida Statutes which establishes as an aggravating circumstance that a homicide was "especially heinous, atrocious or cruel" was both unconstitutionally vague and overbroad as applied to the facts of this case; and finally that both the trial court and the Supreme Court of Florida failed to give weight to the non-statutory mitigating circumstance that Petitioner was not a shooter.
On the facts of this case we find no constitutional infirmity in sentencing Beauford White to die and accordingly we DENY this petition for a writ of habeas corpus.
I.
A. The Trial
The procedural history of this case is straightforward and the facts are essentially uncontested. Only the inferences drawn from those facts are deeply in controversy. Petitioner Beauford White was charged in a twelve-count indictment with six counts of first degree murder, two counts of attempted first degree murder and four counts of robbery, along with Marvin Francois, John Errol Ferguson and Adolphus Archie. The Petitioner was tried alone upon his motion for severance and convicted on all twelve counts. Co-defendants Ferguson and Francois were tried separately, convicted of first degree murder and sentenced to die.[1] Adolphus Archie entered a plea of guilty and became a star witness for the State in connection with these prosecutions. The indictment itself charged Petitioner White along with the others with having unlawfully and feloniously, from a premeditated design to effect the death of a human being, or while engaged in the perpetration of, or in an attempt to perpetrate, robbery, with having killed six individuals by shooting them in the head with a deadly weapon, in violation of Florida Statute 782.04.
The trial judge, the Honorable Richard Fuller, instructed the jury about first degree murder on alternative theories of felony murder and premeditated murder. About vicarious murder the judge said:
A person may commit the crime of first degree murder by his own personal act or through another person. Any person who knowingly aids, abets, counsels, hires, or otherwise procures the commission of one of these enumerated felonies *1143 [including robbery] or the attempt thereof, resulting in the unlawful killing of the victim, and is physically present at commission of the enumerated felony or the attempt thereof, is "engaged in the perpetration of or the attempt to perpetrate" that enumerated felony and is equally guilty of the crime of first degree murder with the one who actually performs the criminal act.
(T.R. at 1363-64).
The court charged that for one person to be guilty of a crime physically committed by another it is necessary that he have a "conscious intent that the enumerated felony or the attempt thereof shall be committed," id., and that pursuant to that intent he do some act or say some word which was intended to and did incite, cause, encourage, assist or induce another person to actually commit the enumerated felony.
The trial court also charged the jury on the meaning of premeditated murder and said, among other things, that "a premeditated design" was a "fully formed conscious purpose to take human life formed upon reflection and present in the mind at the time of the killing. The law does not fix the exact period of time which must pass between the formation of the intent to kill and the carrying out of the intent." (T.R. 1367-68). The trial court added that the time might be short and yet the killing premeditated if the fixed intent to kill was formed long enough before the actual killing to permit some reflection on the part of the person forming it, and that the person was at the time fully conscious of a settled purpose to kill.
Upon conviction on all counts, a separate and extensive sentencing hearing was held pursuant to Florida law and the trial jury unanimously recommended that the Petitioner be sentenced to life imprisonment. The trial judge however disregarded this recommendation and on April 27, 1978 sentenced Petitioner to die, entering written findings in support of the death sentence on May 23, 1978.
B. The Appeal
On appeal, the Supreme Court of Florida affirmed the Petitioner's judgment and sentence. White v. State, 403 So. 2d 331 (Fla. 1981). The essential facts are not in dispute and were found by the Florida Supreme Court on appeal to be the following:
On July 27, 1977, at approximately 8:15 p.m., an adult black male, posing as an employee of the power company, requested permission from Margaret Wooden to enter her home and check the electrical system. After being allowed in and checking outlets in several rooms, the intruder drew a gun and proceeded to tie Ms. Wooden's hands behind her back and blindfold her. The intruder, who identified himself to her as "Lucky" and was later identified as John Ferguson, asked Ms. Wooden for drugs, money and jewelry and began searching the premises. Ferguson's coconspirators, defendant and Marvin Francois, soon entered the house. Both of these men were also armed and all three donned masks covering their faces from the nose down. The three ransacked the house looking for valuables until about an hour later when the owner of the house, Livingston Stocker, and five of his friends arrived. Upon their arrival, Stocker and his friends were forced to lie facedown on the floor while their hands were tied behind their backs. A short time later, Ms. Wooden's boyfriend arrived at the house and he too was tied up. At gunpoint the victims were asked for money and drugs, and one by one were searched. At some point during the ordeal the mask of one of the intruders fell from his face and a discussion ensued as to the need for killing the victims. Following this discussion, Ms. Wooden and her boyfriend were moved back to the bedroom while the other six victims were held captive in the living room. Ferguson then shot Ms. Wooden and her boyfriend in the back of the head while Francois systematically shot the other six victims in the head. Miraculously, Ms. Wooden and a Johnnie H. Hall survived and testified at the trial of defendant. *1144 At trial, Hall was able to identify the defendant as one of the intruders, but both Hall and Ms. Wooden identified the other two intruders as the persons who did the actual shooting.
A fourth participant in these crimes, Adolphus Archie, testified on behalf of the state in return for being allowed to plead guilty to reduced charges. Archie, who served as the "wheelman" and never entered the house, identified the defendant as a participant in the criminal scheme. Archie testified that he and defendant had been requested to participate in the "ripoff of a dope man" but were instead duped into participating in what he said was a planned contract murder of Stocker and perhaps other persons for drug-related reasons. Following the slayings, Archie testified that he met the other three at defendant's motel room where the proceeds of the robberies were divided among them. He testified that the defendant was upset and refused to participate in the disposal of the weapons.
The defendant was arrested on September 2, 1977 and confessed to participation in the criminal episode. His detailed account of what had occurred was consistent with the trial testimony of the surviving victims. The defendant was also linked to the scene of the crimes by a single partial fingerprint which was lifted from the dust cover of a stereo set in the house. This fingerprint was identified by police as the fingerprint of the defendant.
403 So.2d at 333.
On appeal Petitioner raised a variety of objections to the conviction, including the contention that the Florida death penalty statute violated the Eighth Amendment prohibition against cruel and unusual punishment in that it permitted the infliction of death upon a defendant who lacked a purpose to cause the death of his victim, relying upon the separate opinion of Justice White in Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). The Florida Supreme Court rejected that contention and rejected the rationale ultimately adopted by the Supreme Court of the United States in Enmund v. Florida, supra, noting that the plurality opinion in Locket v. Ohio did not forbid a state from enacting a felony murder statute, nor from making aiders and abettors equally responsible with principles.
Petitioner also attacked the imposition of the death penalty urging that varying aggravating factors had been improperly applied to this case, and that other mitigating circumstances had not been considered. The trial court found that all eight aggravating circumstances listed in Florida Statute, Section 921.141(5)(a)-(h), (1977), fairly applied. The trial judge further found that none of the mitigating circumstances listed in Section 921.141(6)(a)-(g) applied, and concluded that no mitigating circumstances existed which could outweigh the aggravating circumstances. First, Petitioner argued that he was not "under sentence of imprisonment" at the time the capital felonies were committed within the meaning of Section 921.141(5)(a) because the crimes were not committed while he was incarcerated or after he had escaped from incarceration. In fact, White was on parole at the time these crimes were committed and the Supreme Court found that the trial judge had properly applied this aggravating circumstance. Second, the trial judge had found, and in the view of the Supreme Court of Florida properly, that the Petitioner had been previously convicted of a felony involving the use or threat of violence to person, Section 921.141(5)(b), (assault with intent to commit rape). Third, Petitioner asserted that the trial judge had improperly considered that the defendant knowingly created a great risk of death to many persons under 921.141(5)(c). In this connection the trial judge had observed: "What would have happened had additional neighbors, delivery people or other friends appeared at the home for a visit can only be the subject of conjecture. Suffice it to say, that a total of six people were killed and two seriously wounded during the perpetration of this robbery." (T.R. 187-88). The Supreme Court of Florida concluded *1145 that the trial court had erred in considering this aggravating circumstance basically because a person may not be condemned to die for what might have occurred. Fourth, the trial judge found, and the appellate court sustained the finding of a statutory aggravating circumstance that the capital felony was committed during the commission of another serious felony listed in Section 921.141(5)(d), in this case robbery. The Supreme Court did hold, however, that that same circumstance could not also constitute the basis for finding the existence of the aggravating circumstance listed in Section 921.141(5)(f), i.e., a capital felony committed for pecuniary gain as the trial judge had improperly done.
Petitioner further argued on appeal that the trial judge had improperly applied Section 921.141(5)(e) (capital felony committed to avoid or prevent a lawful arrest or effect an escape from custody) to him because he could not have attempted to avoid arrest when he was unaware that his cohorts had originally planned to kill the victims. The Supreme Court sustained the trial judge's findings that these capital felonies were committed in an effort to avoid arrest by eliminating witnesses to the crime, but again disapproved of the fact that the trial judge had used these same incidents as a basis for also finding that capital felonies were committed for the purpose of hindering the lawful exercise of enforcement of the criminal laws, Section 921.141(5)(g), criticizing the process of "doubling up of aggravating circumstances," and therefore struck this aggravating factor. 403 So. 2d at 338. The Supreme Court of Florida did conclude that there was sufficient evidence to sustain the trial judge's findings that the capital felonies were committed in an effort to avoid arrest by eliminating witnesses to the crime.
Finally, the Petitioner claimed on appeal that the capital felonies were "not especially heinous, atrocious or cruel." The Supreme Court rejected this contention noting that the victims were "required to submit to a protracted ordeal during which time they undoubtedly agonized over the prospect of being murdered." Id. With regard to this aggravating circumstance, the Supreme Court of Florida quoted at length from the trial court's written findings:
Miss. [sic] Wooden was the first of the victims to be tied, gagged and blindfolded and she, for many hours was subjected to the taunts of the conspir[a]tors. During this ordeal she had to remain across the bed, laid on the floor or led around the house so constrained. She was terrified that any moment her baby might have been brought home and her boyfriend might return from work. She was required to listen while Mr. Stocker and his five friends were confronted, tied, gagged and blindfolded. She eventually faced the frustration of hearing her boyfriend arrive home and knew he was being tied and gagged.
Ultimately, all eight victims were in one bedroom during which time this defendant continued to guard them and discuss with other co-conspirators the searching of the house and captives, and the ultimate disposition of the bodies. The survivors testified as to their increased fright and anxiety when Miss. [sic] Wooden and her boyfriend were placed in one room and Mr. Stocker and his five friends remained in Stocker's bedroom. Cold-bloodedly, all eight victims were shot, six of whom received fatal wounds. Victim Stocker was heard to have cried to God for his assistance in stopping what he anticipated was going to take place. His prayers were interrupted by a shotgun blast to the back of his head. While each of the six men in Stocker's room were being shot, Miss. [sic] Wooden and her boyfriend were also being shot by another of the co-conspirators in another room. Each of the victims was dispatched by a shot from either a shotgun or a pistol which was deliberately and callously discharged into the back of his head. Miraculously, one victim in each of the two groups survived to testify as to the ordeal. While these executions were carried out by individuals other than the instant defendant he *1146 nevertheless, was present and did nothing whatsoever to stop the assaults, harassments and shootings.
403 So.2d at 338-339.
The Supreme Court of Florida found that these brutal murders, including the calculated slaughter of six individuals and the attempted murder of two others, constituted an atrocity which set the capital felonies apart from the "norm" of capital felonies and thus was properly an aggravating circumstance. Id. at 339.
The Petitioner also argued on appeal that the trial judge had overlooked the mitigating circumstance that the defendant was an accomplice in the capital felony committed by another person, that his participation was relatively minor and that he had acted under extreme duress or under the substantial domination of another person, Sections 921.141(6)(d) and (e). The Supreme Court of Florida rejected both contentions finding "absolutely no evidence" to support "the assertion that the defendant acted under the coercion or the domination of another." Id. The Supreme Court of Florida went on: "We also do not find that the defendant played a minor role as an accomplice. He fully participated in the subduing and intimidation of the victims, in ransacking the house looking for valuables, and stood by while the victims were shot one by one. It was his motel room which was used as a place to plan the crimes and to divide the loot after the crimes were completed. The trial judge properly rejected the applicability of these two mitigating circumstances." Id. at 339. The Supreme Court of Florida concluded that although the trial court had improperly considered three aggravating circumstances, five had been properly found, and there were no mitigating circumstances, thus, a new sentencing trial was not mandated.
Petitioner also attacked the fact that the trial judge had imposed the death sentence after a unanimous jury recommendation of life imprisonment. The trial judge noted, as a result of the pre-sentence investigation and information presented at the sentencing, that he was aware of a number of factors which the jury did not have and thus could not have considered. Included among them were the defendant's prior conviction of a violent felony (attempted rape) and that he was still on parole when these offenses were committed. The trial judge also found that defense counsel's "vivid description to the jury on the effects of being electrocuted" were calculated to influence a life sentence through an emotional appeal. The trial court concluded that the death sentence was appropriate in view of the aggravating circumstances which far outweighed any possible mitigation. The Supreme Court of Florida agreed that the death sentence was well warranted, observing that while the advisory recommendation of the jury was to be accorded great weight, the ultimate decision rested with the trial judge. The Court noted that the "only colorable mitigating circumstance was the non-statutory consideration that the defendant was not the triggerman." Id. at 340. But it did not believe that that factor alone outweighed the enormity of the aggravating factors, including the defendant's full cooperation in the robberies and "complete acquiescence in the cold-blooded, systematic murder or attempted murder of eight individuals." The Supreme Court of the United States denied a petition for writ of certiorari on July 6, 1983, with Justices Brennan and Marshall dissenting. White v. Florida, 463 U.S. 1229, 103 S. Ct. 3571, 77 L. Ed. 2d 1412 (1983).
C. The Collateral Attack
On January 19, 1984, Governor Robert Graham of Florida signed a death warrant ordering the defendant's execution then scheduled for February 7, 1984. Soon thereafter, on January 23, 1984, Petitioner filed a motion based upon the newly decided opinion of the Supreme Court in Enmund v. Florida, supra, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, seeking to set aside the death sentence. The petition for post-conviction relief was granted by a new trial judge, the Honorable Herbert M. Klein, who, after *1147 hearing oral argument but taking no evidence, vacated the sentence of death. The trial judge specifically found upon its review of the record that "the defendant did not `kill, attempt to kill, or intend that a killing take place,' and was therefore entitled to the protections afforded by the Enmund case." (T.R. 159).
The State appealed this order to the Supreme Court of Florida. After briefing and argument that Court, with two Justices dissenting, reversed the trial judge's Order, and reimposed the death sentence, finding three salient distinctions between Enmund and this case:
First, Enmund was not present at the robbery/murder premises whereas appellee was present before, during, and after the robbery and murders. Second, Enmund had no active role in the actual robbery and murders whereas appellee was armed and participated fully in capturing, intimidating, and guarding the robbery/murder victims. Third, Enmund did not intend or contemplate that lethal force would be used in carrying out the robbery. While appellee verbally opposed the killing during the discussion preceding the murders, he did nothing to disassociate himself from either the murders or the robbery. After the discussion relative to killing the victims, whatever appellee might have originally intended or contemplated about lethal force being used in the robbery, it can hardly be said that he did not realize that lethal force was going to be used in carrying out the robbery. On this point we refer to our rejection on direct appeal of appellee's argument in mitigation that his participation was relatively minor and that he acted under extreme duress or substantial domination of another: "We find absolutely no evidence to support the assertion that defendant acted under coercion or the domination of another. We also do not find that the defendant played a minor role as an accomplice. He fully participated in the subduing and intimidation of the victims, in ransacking the house looking for valuables and stood by while the victims were shot one-by-one. It was his motel room which was used as a place to plan the crimes and to divide the loot after the crimes were completed. White v. State, 403 So.2d at 339."
State v. White, 470 So. 2d 1377, 1380 (Fla. 1985).
The Supreme Court of Florida concluded that "Enmund does not bar the imposition of the death penalty under these facts and circumstances." State v. White, 470 So.2d at 1380. Rehearing was denied on July 11, 1985. On August 22, 1985, Governor Graham signed a second death warrant and set the defendant's execution for September 30, 1985. On August 30, 1985, Petitioner filed this habeas corpus action. Oral argument was held by this Court on September 3, 1985 and again at length on September 13, 1985. During the September 13th argument, this Court directed Respondent to review the records of Petitioner's trial and sentencing procedure to insure that certain exhibits, various diagrams of the victims' home, were made part of this record. On September 20, 1985, counsel for Respondent notified the Court that he had located the original exhibits and the original diagrams of the crime scene were introduced as part of this record. On September 23, 1985, this Court granted Petitioner's Motion for a Stay of Execution of Sentence, finding that a stay of execution was necessary to permit a fair and thorough consideration of the merits of this petition prior to execution of the death sentence.
II.
Petitioner has conceded for the purposes of this application that he was properly convicted of felony murder, but maintains that the death sentences were unconstitutionally imposed because he neither killed, attempted to kill, nor intended to kill in the instant case. His challenge is a serious and substantial one. We believe however that Petitioner has fundamentally misapprehended the Enmund findings of the Florida Supreme Court and the application of Eighth Amendment principles to the facts of this case.
*1148 The holding of Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) is clear. The Supreme Court ruled that the Eighth Amendment forbade the imposition of the death sentence upon: "one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place, or that lethal force will be employed." Id. at 797, 102 S. Ct. at 3376. The facts of Enmund, of course, differ in material measure from those found here. In Enmund, two elderly individuals were robbed and fatally shot at their farmhouse in central Florida. Two of Enmund's co-defendants, Sampson and Armstrong, went to the back door of the victims' house asking for water for an overheated car. One of the victims, Mr. Kersey, came out of the house and was grabbed by an assailant who pointed a gun at him. He apparently cried out for help. His wife came out of the house with a gun, and shot and wounded one of the assailants. At that point, one or two of the co-defendants shot and killed both Kerseys, dragged them into the kitchen and fled with their money. Earl Enmund's participation in the crimes included the fact that he was the person in the car by the side of the road near the scene of the crimes, perhaps a few hundred feet away from the house, waiting to help the robbers escape after the execution of the crime. That was enough under Florida law to make Enmund one upon whom the death penalty could be imposed, even though he neither killed, was not present at the killing and there was no evidence to find that he intended that the Kerseys be killed, nor that he anticipated the use of lethal force.
Upon those facts the Supreme Court concluded that the imposition of the death penalty would be inconsistent with the Eighth and Fourteenth Amendments. Justice White, writing for the majority, observed that the focal point of Eighth Amendment death penalty analysis must be the personal culpability of each defendant, not his co-conspirator, for the Court has insisted on "individualized consideration as a Constitutional requirement," 458 U.S. at 798, 102 S.Ct. at 3377; see also Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978), what had previously been called "the relevant facets of the character and record of the individual offender." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976).
The Supreme Court found that Enmund self-evidently did not kill or attempt to kill and, as construed by the Florida Supreme Court, the record did not warrant "a finding that Enmund had any intention of participating in or facilitating a murder." Enmund v. Florida, supra 458 U.S. at 798, 102 S. Ct. at 3377.
Justice White noted that causing harm intentionally must be punished more severely than causing the same harm unintentionally because the death penalty was required to serve two principle social purposes retribution and the deterrence of capital crimes by others. And the imposition of the death penalty would not measurably deter an individual who neither kills, nor has an intention or purpose that life will be taken. Rather, capital punishment would only serve as a deterrent when murder was the result of premeditation and deliberation. In short, the imposition of the death penalty for a vicarious felony murder would not deter the cold calculation that may precede the act of killing by another person. However, the Court noted: "It would be very different if the likelihood of a killing in the course of a robbery was so substantial that one should share the blame for the killing if he somehow participated in the felony." Id. at 799, 102 S. Ct. at 3377. But Justice White, citing empirical evidence, found that there was no basis to support the proposition that death occurs so often in the course of a felony for which killing is not an essential ingredient that the death penalty could be termed an effective and justifiable deterrent to the felony itself. That conclusion was based upon studies which compared the total number of robberies with the small percentage of homicides resulting from those robberies.
*1149 With regard to the calculus of retribution, the Court stressed that a defendant's intention, "and therefore his moral guilt," was critical to a determination of his culpability. Id. at 800, 102 S. Ct. at 3378. These criminal penalties were unconstitutionally excessive in the absence of intentional wrongdoing. The Court ultimately concluded that Enmund's criminal culpability under the facts of that case had to be limited to his participation in the robbery and thus that his punishment had to be tailored to "his personal responsibility and moral guilt." Id. at 801, 102 S. Ct. at 3378. To put Enmund to death to avenge two killings that he neither committed nor intended to commit nor caused in any real sense nor measurably contributed to would not serve the end of "insuring that a criminal gets his just desserts." Id.
In the instant case Petitioner has argued that three critical facts were found by the state trial judges and affirmed in two decisions by the Supreme Court of Florida: first that the Petitioner neither killed, attempted to kill nor intended that a killing take place; second, that the discussion of murdering the victims was initiated when one of the robber's masks fell off; and finally that the Petitioner objected to the killings when that discussion took place. The Petitioner also has contended that he was unaware that a contract killing had been discussed by two of his accomplices in advance of entering the victims' house; that he simply thought the assailants were there to consummate a robbery; that he had been pretty shaken up by the murders, and looked like a ghost; that subsequent to the murders Adolphus Archie learned for the first time that Francois and Ferguson had intended to kill someone on the night in question, and in fact, had been hired for that purpose; and finally that the Petitioner refused to personally dispose of the murder weapons.
Petitioner also relies upon the finding of the second trial judge on collateral review, and bolsters that with the reasoning of Justice McDonald who dissented from the State Supreme Court's holding in State v. White. Justice McDonald argued that Enmund proscribed the imposition of the death sentence because Petitioner objected to the idea of the killings, did not take part in the killings, and refused to assist in the disposition of the weapons: "His role in guarding the door was to further a robbery, not a homicide. He did not kill, attempt to kill or intend to kill. The record does not disclose that he contemplated that lethal force would be used although he did know that all participants were armed. His failure to dissuade others from killing does not rise to a participation in the killing." State v. White, supra, at 1380 (McDonald, J. dissenting).
We think that Petitioner has fundamentally misapprehended the Enmund finding made by the Florida Supreme Court in State v. White, 470 So.2d at 1379-80. We believe that the Florida Supreme Court has made a particularized and individualized analysis of the culpability of the Petitioner, Beauford White, and found sufficient factual basis to support the imposition of the death penalty.
The Florida Supreme Court has really made two critical findings from which the ultimate finding of intent or contemplation emerges: first, that Petitioner did come to realize lethal force would be used in carrying out the robbery, and that this occurred, at the latest, when the mask fell off the face of one of his accomplices; and second, that there was no evidence to support the assertion that Petitioner acted under the coercion or domination of another. Put differently, the Supreme Court of Florida found that Beauford White came to know, realize or contemplate that lethal force would be used and freely chose to stay and participate, guarding the front door of a small cinderblock house as eight people were systematically shot in the back of the head, six fatally, and thereafter fled the scene of the crime with the two shooters, all of whom returned to his motel room where all of the loot generated from the robbery/murders was divided up. Putting together these two critical findings of factknowledge that deadly force would be used, and his voluntary participation *1150 throughoutwe read the Florida Supreme Court opinion to amount to a finding of the requisite criminal intent or mens rea. Indeed, we think the Supreme Court of Florida's opinion can only be read as a finding that the Petitioner Beauford White's participation in the events preceding, during and following the murders was voluntary and that he possessed the necessary intent even though he voiced opposition at one point to the murders.
In our view only two questions have to be answered by this reviewing court. First, did the Florida Supreme Court make an Enmund finding of the requisite criminal intent; and second, does the record fairly support that finding. We think the answer to both questions is yes. We stress that this Court's habeas corpus reviewing authority is properly limited by the standards enunciated by Congress in 28 U.S.C. Section 2254(d), and by the interpretations placed upon that statute by the Supreme Court of the United States in Sumner v. Mata, infra, and recently in Cabana v. Bullock, 484 U.S. ___, 106 S. Ct. 689, 88 L. Ed. 2d 704 (1986).
The Supreme Court in Cabana v. Bullock, 484 U.S. ___, 106 S. Ct. 689, 88 L. Ed. 2d 704 (1986) faced the question who must decide whether a non-shooter defendant possessed the requisite legal and moral culpability under Enmund the trier of fact, the appellate court, or the habeas corpus reviewing court. The case arose on appeal from the Fifth Circuit which had reversed a district court's denial of a writ of habeas corpus on the ground that Bullock's death sentence was invalid under Enmund. The Fifth Circuit reached its conclusion based upon a review of the jury instructions, reasoning that the jury could have found guilt for capital murder solely on the basis of participation in a robbery in which defendant served as an aider and abettor to someone else who killed. The instructions did not require any finding of intent to kill on Bullock's part nor a requirement that Bullock had actually killed or attempted to kill.[2] The Supreme Court reversed the Fifth Circuit and in the process expounded the appropriate standard of review to be applied by a federal habeas corpus court examining an Enmund claim. Justice White, again writing for the Court noted: "[T]he [reviewing] Court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite facts or findings as to the defendant's culpability has been made. If it has, the finding must be presumed correct by virtue of 28 U.S.C. Section 2254(d), see Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981), and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the Court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence." Id. 106 S.Ct. at at 697-98. The Supreme Court ruled that the Fifth Circuit had erred in focusing exclusively on the jury instructions and in ordering a new sentencing hearing without inquiring whether the necessary finding of intent had actually been made by the trial court or by the state appellate court.
Sumner v. Mata, supra, had already established that the presumptive validity of the state fact-finding process is equally applicable to facts found by appellate as well as trial courts. In that case the Supreme Court reversed the Ninth Circuit Court of Appeals which had granted a writ of habeas corpus on the basis of a pre-trial identification issue. The Ninth Circuit had failed specifically to refer to the standards laid out in 28 U.S.C. Section 2254(d).[3]
*1151 Sumner v. Mata, supra, explained in detail the appropriate standard to be applied by a federal habeas corpus court in reviewing a challenge under 28 U.S.C. Section 2254, and Cabana v. Bullock has now made clear that that standard is equally applicable to an Enmund review. The Sumner Court noted that a federal judge may overturn the judgment of the highest court of a state insofar as it deals with the application of the Constitution to the facts of a particular case. 28 U.S.C. Section 2254(d), however, imposes specific limitations on the statutory authority of the federal habeas reviewing court.
Justice Rehnquist, writing for the Sumner Court, observed that when Congress enacted 28 U.S.C. Section 2254(d) it recognized an interest in federalism and required "deference by federal courts to factual determinations of all state courts." The Court underscored that this would be particularly true in a case where, as here, "a federal court makes its determination based on the identical record that was considered by the state appellate court...." 449 U.S. at 547, 101 S.Ct. at 769. The Supreme Court concluded that in adopting the 1966 Amendment to the Habeas Corpus Act "Congress ... intended not only to minimize that inevitable friction but also to establish that the findings made by the state-court system `shall be presumed to be correct' unless one of seven conditions specifically set forth in 2254(d) were found to exist by the federal habeas corpus court. If none of those seven conditions were found to exist or unless the habeas court concludes that the relevant state-court determination is not `fairly supported by the record,' `the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.'" (emphasis in original). 449 U.S. at 550, 101 S.Ct. at 770.
Thus it is clear that in the absence of one of the enumerated factors in Section 2254(d), the burden rests upon the habeas corpus petitioner whose case has already run the gamut of the state system to establish by "convincing evidence that the factual determination of the state court was erroneous." Congress explicitly intended *1152 and meant to insure that a state finding not be overturned "merely on the basis of the usual `preponderance of the evidence' standard in such a situation." Id. at 551, 101 S. Ct. at 771. In sum, the Enmund question is a fact question and not a mixed determination of law and fact, and when a state court makes that finding it is entitled to a presumption of correctness.[4]
On this record, the Supreme Court of Florida could fairly find that Petitioner contemplated deadly force would be used to effect the robbery. Part of the evidence included a post-arrest confession made by Petitioner Beauford White to Detective Robert Derringer. Derringer testified specifically that White had told him that he and the wheelman, Adolphus Archie, were asked by co-conspirator Ferguson if they would go with Ferguson "to take off a dope house or something to that effect" or as he put it later "to rob a dope house." (T.R. at 842). At the outset, then, Petitioner knew, at a bare minimum, that the specific object of the robbery was a narcotics house. He started with ample reason to anticipate that deadly force would be used. That lethal force would be contemplated in the context of such an enterprise seems to be an eminently reasonable conclusion to draw from the nature of any robbery directed specifically at an illicit drug house. The federal courts have for years recognized the inextricable link between guns, use of the tools of violence and the drug trade. Whether for their own protection, for the protection of their property or for their use in stealing from others, individuals engaged in buying or selling narcotics are reasonably assumed to be armed. See e.g., United States v. Perez, 648 F.2d 219, 224 (5th Cir.), reh. denied, 655 F.2d 235 (5th Cir.), cert. denied, 454 U.S. 1055, 102 S. Ct. 602, 70 L. Ed. 2d 592 (1981); United States v. Pentado, 463 F.2d 355, 360 (5th Cir.), cert. denied, 409 U.S. 1079, 93 S. Ct. 698, 34 L. Ed. 668 (1972). As the United States Court of Appeals for the Second Circuit noted in United States v. Wiener, 534 F.2d 15, 18 (2nd Cir.), cert. denied, 429 U.S. 820, 97 S. Ct. 66, 50 L. Ed. 2d 80 (1976): "Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment." In short, given the large sums of money and quantities of narcotics involved, and the high risk of loss at the point of exchange, it is often reasonable to infer that those present at such an exchange, especially an exchange which might involve the armed robbery of a narcotics dealer, will have occasion to use deadly force. Sadly in South Florida the use of lethal force in the context of a narcotics transaction has been repeatedly and amply demonstrated. See e.g., United States v. Alvarez, 755 F.2d 830, 848-49 (11th Cir.1985), cert. denied, Hernandez v. United States, ___ U.S. ___, 106 S. Ct. 274, 88 L. Ed. 2d 235 (1985); Royer v. State, 389 So. 2d 1007 at 1023-1024 (3rd DCA 1980) (en banc) (Hubbart J. concurring), ("unprecedented degree of violence and murder"); affirmed Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Sayers, 459 So. 2d 352, 353 (3rd DCA 1984), reh. denied, 471 So. 2d 44; Martinez v. State, 413 So. 2d 429, 430 (3rd DCA 1982).
In sum, there is ample reason indeed to conclude that the foreseeability of lethal force arising out of an armed invasion of a narcotics house was so great as to amount to a near certainty in light of the armed resistance likely to be offered by the victims. And thus the "hitting of a dope house" is sharply distinguishable from the ordinary armed robbery, the kind of armed robbery which occurred in Enmund, where the likelihood of the use of lethal force is small. However, it is entirely unnecessary to base the imposition of the death sentence *1153 here solely upon the powerful inference arising from Petitioner's agreement "to take off a dope house" or "to rob a dope house," because there is specific and concrete evidence of Petitioner's knowledge that lethal force in this particular transaction would be used, and used on a barbaric scale.
We note that it was Petitioner White who urged Adolphus Archie, the wheelman, to join them in the enterprise noting: "You might as well, man. You keep complaining about your bills." (T.R. at 1110). Moreover, the record evidence shows that the conspirators met in Petitioner's motel room in advance to plan the robbery and that during the course of the meeting, Petitioner not only saw a sawed off shotgun and two hand guns, but was given one of the hand guns, a loaded .22, which he carried himself. Indeed, the record evidence suggests that Petitioner White knew how many shotgun shells Francois had. (T.R. at 949).
The wheelman Archie testified at trial that he was told by Francois after the murder that Beauford White was asked to join the undertaking because they knew that somebody else would probably come home with Stocker, and they needed a third gun. As Archie put it, Francois said that he and Ferguson were hired "[t]o killhe said they were only supposed to kill two people." Francois didn't tell Archie their names. According to Archie, Francois confided "that's why they had to use Beauford ... [b]ecause they figured someone else was going to come home with them, whoever they was going to [sic]." (T.R. at 1137). They chose White, in short, because they needed a third armed assailant to assist them if Stocker, the object of a contract murder, brought others home.[5] Thus, White knew on the front end of the transaction whom he went with and that the object was to rob a dope house, and chose to participate armed with a shotgun and pistols.
The record further supports a finding that White came to realize fully that lethal force would be used. The transaction itself lasted a substantial period of time, indeed, a number of hours and the contemplation of deadly force undoubtedly intensified with each passing hour. The evidence is that Beauford White remained throughout, was armed throughout and directly and personally participated in subjugating eight individuals as they entered, were bound and gagged, forced to lie face down on the floor of various rooms in the small cinderblock house, and threatened with death. At one time during the course of this brutal armed seizure of the house and the subjugation of its occupants, a shotgun was placed to the head of one of occupants, Margaret Wooden, who testified that one of the co-defendants, not White, pointed the gun at her head and said: "We have to start with this little girl and then kill all of you." (T.R. at 727). Stocker, the object of the robbery/murder indicated that if he had anything, he would give it to them. Miss Wooden testified further that she heard another victim say, "if we had anything else, we will give it to you" and a defendant say "[s]orry, but its got to be this way." (T.R. at 730). The only other survivor to the massacre was one Johnny Hall, who testified that at another time Francois loaded the shotgun, and pointed it at Stocker. Johnny Hall heard Francois say "Shut up, nigger" as he shot Stocker in the back of the head, in response to Stocker's plea for mercy. (T.R. at 782).
*1154 The confession of Beauford White is also instructive about what he knew and when he came to know it. White's confession to Derringer included the assertion that somewhere during the course of this transaction, after Ferguson came back from searching the car of one of the victims, White suggested they leave because they had found nothing. Petitioner indicated that his co-defendants talked and that thereafter: "I got afraid at the time, and I moved toward the front door. And so Ferguson went and got the girl and her boyfriend, and took her to their room, and Marvin got the shotgun and the shells and went to Stocker's room." They did not tell White what they had been talking about. "I never did know. In a way, I was afraid to ask." Petitioner took the 21 inch TV to the front door and heard the shotgun. He continued: "Then I heard two shots in the bedroom where the girl and her boyfriend was. Then I heard the shotgun again. Then I heard the shotgun again. Then I heard theanother shot in the girl's bedroom. Then the shotgun came off again. And by the time Ferguson came out of the room, I kind of opened the door, kind of opened the front door, and then Marvin ran out and let Ferguson and got the .38 from him and went back into the room; and I think he fired two or three shots." Once the shots were fired, "after everything had fired, I left out the door. Then Marvin came and then Ferguson came." (T.R. at 941-944) (emphasis added). Even his own confession, which interestingly enough makes no reference to expressing verbal opposition to the shootings, alludes to a strong suspicion that lethal force on a barbaric scale would be used. In sum, we think this record supports the Florida Court's finding that whatever Petitioner may have known at the outset, during the course of this two hour plus carnage he surely came to realize that lethal force would be used.
The second fact found by the Florida Supreme Court on the Enmund issue, and in our view an equally critical one, is that there was no evidence to support the assertions that Petitioner acted under the coercion or domination of another, or that his participation was in any sense minor. Like the trial judge, the Supreme Court found no evidence of duress but rather that he freely chose to remain and participate actively throughout.
Petitioner's argument on this point amounts to an elaborate post-hoc effort to surgically remove himself from the murders, notwithstanding his knowledge and participation. He has asserted that all he did was facilitate robbery, not murder. On this fact pattern, the Florida courts could reasonably find, as we think they did, that his participation amounted to more than participation in a robbery. The long and the short of this case is that he contemplated the use of lethal force and acted voluntarily. There was no evidence that he was forced to act, or that anything he did was the product of coercion or threat. He was not compelled to carry a loaded weapon. He was not forced to stay in that house for two and one-half hours. He was not forced to meet with the co-defendants before and after the crime in his motel room, or to take his share of the loot. His participation in the crimes was active and his acquiescence in the total result was complete. He facilitated not simply robbery but also murder by tying up the victims, by intimidating them, by wiping the house of fingerprints and by giving his weapon to the other co-defendants who then dropped them in the river.[6] He facilitated the robbery/murders by helping to guard the scene of crime as each group of *1155 victims walked into the house and by guarding the front door as the murders were executed. At no point did he attempt to stop the shooting, or to leave before the shootings were complete, or to assist the police afterwards in unravelling the crime, or to disassociate himself in any way by any act from the bloodbath that ensued. Unlike Enmund, this Petitioner's personal responsibility, his individual and particularized moral guilt are evident. While he didn't pull the trigger, we think the State Court could find that he knew enough and did enough to impose the death sentence without violating the command of Enmund.[7]
Most of the other reported post-Enmund, non-triggerman death cases raise the same basic problem for a reviewing courthow to sort out or surgically excise the underlying felony from the ensuing homicide. Some reviewing courts have come to the same conclusion reached in State v. White, supra. While none involve the expression of verbal opposition to the idea of killing by the non-triggerman we think nevertheless that the cases are instructive here. Thus, for example, respondent has cited State v. Tison, 142 Ariz. 454, 690 P.2d 755 (1984), cert. granted, ___ U.S. ___, 106 S. Ct. 1182, 89 L. Ed. 2d 299 (1986), where the Supreme Court of Arizona made a post-Enmund analysis and found the evidence sufficient to show that the defendant possessed the requisite intent, thereby supporting the imposition of the death penalty even though he was a non-shooter. The defendant in that case, Raymond Tison, was convicted of four counts of first degree murder, as well as two counts of robbery, three counts of kidnapping and one of theft of a motor vehicle. The facts were not in dispute. He and his two brothers assisted the escape of their father, one Gary Tison, and a Randy Greenawalt from the Arizona State Prison. The five men fled the prison in a car. Later they transferred to a second car which in turn became disabled with a flat tire. Four victims *1156 in a passing car stopped to render aid. The gang killed the four of them, took the car and were subsequently apprehended days later.
The facts of State v. Tison did not show however that the defendant killed or attempted to kill anyone. The court's finding of intent was rooted in a record which showed that the defendant played an active role in preparing the breakout, including obtaining a getaway car and various weapons. At the breakout scene, the defendant played a crucial role by, among other things, holding a gun on the prison guards. Moreover, the defendant knew that Gary Tison's murder conviction arose out of the killing of a guard during an earlier prison escape attempt. Thus, the Supreme Court of Arizona said that "petitioner could anticipate the use of lethal force during the attempt to flee confinement." 690 P.2d at 757. They noted that defendant admitted later he would have been willing to kill in a very close life or death situation and that he recognized after the escape that there was a possibility of killing. And they emphasized that the defendant assisted the abduction by flagging down the victims as they drove by while the other members of the gang remained hidden and armed. Moreover, he escorted the victims to the murder site. At that site the Defendant and Greenawalt placed the gang's possessions in the victims' Mazda and the victims' possessions in the gang's disabled car. He watched, however, from a distance, as Gary Tison and Greenawalt fired in the direction of the victims. He did nothing to interfere and after the killings he did nothing to disassociate himself from either Tison or Greenawalt but rather used the victims' car to continue on a joint venture that lasted several more days.
Petitioner White's attempts to distinguish Tison from the instant case are largely unpersuasive. As in Tison and unlike Enmund, Petitioner was armed and present throughout; as in Tison and unlike Enmund, he participated in the activities leading directly up to the murders; and as in Tison, he continued on the venture after the murders had been effected by the actual shooters. In our view the evidence that Petitioner contemplated the use of lethal force is in some ways even more compelling here than in Tison. As we've noted, the only other real distinction between this case and Tison, and indeed between this case and virtually all of the other non-shooter cases which we have examined, is that Petitioner verbally objected to the use of lethal force.[8] In every other way, however, his participation before, during and after the murders was as active, direct and significant as the participation of Tison.
Still other post-Enmund cases in Florida have imposed the death penalty sentence upon a non-shooter and faced the same analytical problems. Thus, for example in Cave v. Florida, 476 So. 2d 180 (Fla.1985), the defendant Cave was convicted of one count of first degree murder and robbery with a firearm and kidnapping. The relevant facts were that Cave and three accomplices drove to a convenience store late one night in Stuart, Florida. Cave and two of the men entered the store where Cave held a handgun on a youthful female clerk and *1157 demanded the store's cash. The clerk surrendered the cash whereupon she was taken from the store and placed in the back seat of the car. The men drove her to a rural area approximately 13 miles away where she was removed from the car by all four men. After leaving the car, one of the men stabbed the victim and when she fell over another fired a single lethal shot into the back of her head. The men then departed the scene together but were stopped approximately an hour later on route back to Ft. Pierce, Florida, by police officers because of a defective tail light. Cave argued that application of the Enmund doctrine should preclude the imposition of the death sentence, contending that he neither killed, attempted to kill nor intended that a killing take place or that lethal force would be used.
The Supreme Court of Florida rejected that position and distinguished that case from Enmund much as it has this case. They said: "Appellant Cave was the gunman who admits to holding the gun on the clerk during the robbery and forcing her into the car; he was present in the car during the thirteen-mile ride and heard her plead for her life and he was present when she was forceably removed from the car in a rural area, stabbed and shot in the back of the head. Under these circumstances, it cannot reasonably be said that appellant did not contemplate the use of lethal force or participate in or facilitate the murder." 476 So. 2d at 187. In support of that holding in Cave, the Supreme Court of Florida cited its opinions in State v. White, supra, and White v. State, supra. Again, in the Cave case, although there was no evidence that the defendant shot or attempted to shoot, the Court inferred the requisite intent from armed presence and participation throughout the transaction, and knowledge from the circumstances that the victim was driven in a car some 13 miles away and heard to plead for her life before being stabbed and then shot to death.
Still another post-Enmund non-shooter case upholding the imposition of the death penalty after an Enmund review is the Florida case of Bush v. State, 461 So. 2d 936 (Fla.1984), cert. denied, ___ U.S. ___, 106 S. Ct. 1237, 89 L. Ed. 2d 345 (1986). The defendant there, John Earl Bush, was convicted of first degree murder of one Frances Slater and sentenced to die. The evidence at trial indicated that Frances Slater was abducted from a convenience store where she worked and the store's cash register and floor safe were robbed. Later that day the victim's body was found 13 miles from the store with a stab wound in her abdomen and a fatal bullet wound to the back of her head fired at close range. Defendant Bush contended that he didn't realize his accomplices were planning to rob the convenience store and that during and after the robbery he was under their domination. After the robbery he conceded that they drove away. The victim was pushed out of the car but he claimed that he intended to set her free. The accomplices, he contended, decided that the victim might identify them and therefore they told Defendant Bush to dispose of her. Bush argued that he didn't want to kill her and so he faked a blow at her with his knife and stabbed her superficially. She fell to the ground and an accomplice, Parker, shot her.
The jury returned a verdict of guilty on the first degree murder charge, robbery with a firearm and kidnapping, and subsequent to the sentencing hearing, the jury recommended in a 7-5 advisory opinion that the death penalty be imposed. The trial judge citing three aggravating factors and no mitigating factors sentenced Bush to die. Bush argued that the death penalty collided with the dictates of Enmund. The Supreme Court of Florida distinguished Bush from Enmund: "Here we do not have a mere passive aider and abettor as in Enmund, where the only participation by Enmund was as driver of the getaway car from what he supposed was only a robbery and not a murder. The facts of this case show that Bush was a major, active participant in the convenience store robbery and his direct actions contributed to the death of the victim. The degree of Bush's participation is sufficient to support a finding *1158 that his involvement constituted the intent or contemplation required by Enmund." Id. at 941.
Also cited by Respondent is the leading Eleventh Circuit case of Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (en banc), where the United States Court of Appeals held that the death penalty could be imposed on a defendant who was actively engaged in furthering the course of events which led directly to a policeman's murder whether or not he actually pulled the trigger. Under the facts of that case, after a jury trial in Georgia, the defendant Ross was convicted of armed robbery, kidnapping and murder, sentenced to life in prison, 20 years, and the death penalty, respectively. The defendant contended that Enmund was violated because the jury did not make a specific finding that he either murdered or intended to murder the lieutenant and therefore that he was entitled to a new sentencing hearing. The Eleventh Circuit did not read Enmund to require that a jury expressly make such a culpability determination, and the Court made that determination de novo finding that the death penalty was proportionate to defendant's conduct. The evidence adduced fully warranted the conclusion that appellant actually fired the shot that killed the lieutenant even though defendant had argued that a co-conspirator fired the fatal shot. The Court did observe, however, that even if it were to accept defendant's version that he did not fire the fatal shot (which was termed remote), his actions nevertheless were sufficient to warrant the imposition of the death sentence.
Judge Kravitch writing for the en banc court noted:
We do not read Enmund as barring the death penalty for all non-triggermen, but merely as requiring a level of individual participation that justifies the application of the death penalty. The Supreme Court's objection in Enmund that Earl Enmund was to be executed "regardless of whether [he] intended or contemplated that life would be taken," id. [102 S.Ct.] at 3379, simply does not extend to appellant whose actions undeniably reflect the contemplation that life would be taken. Appellant does not deny that he and Turner held the Stanford family hostage while their cohorts went to the Lee home. Likewise, it is undisputed that appellant was armed and in the dining room with Turner when Lieutenant Meredith entered the home. He was thus actively engaged in furthering the cause of events that led directly to Meredith's murder, whether or not he actually pulled the trigger. (citations omitted).
756 F.2d at 1489.
The Court repeated that the two primary purposes of capital punishment, deterrence and retribution, could legitimately be applied to the facts of that case. The Court observed that the "intentions, expectations and actions ... of an individual engaging in such acts rise to a level of culpability such that the retributive purposes of capital punishment are furthered by appellant's sentence of death." Id. The Court concluded: "... even if appellant's actions are viewed in their most favorable light, and even if we completely discount the testimony of those witnesses who stated that appellant had told them he thought he had shot a policeman, appellant's culpability still is of a magnitude wholly different from that of Earl Enmund ... the record here depicts an individual who undoubtedly contemplated that lethal force would be used either by himself or by others as they held a family hostage, and who actively participated in the activities that culminated in Lieutenant Meredith's death. Consequently, we find that the death penalty in this case does not violate the Eighth Amendment...." Id.
What the instant case boils down to, and what these post-Enmund non-triggerman cases teach, is that armed presence and participation in the course of subjugation and robbery or kidnapping, coupled with knowledge that lethal force will be used, is enough to meet the requirements of Enmund v. United States, supra. We think on the facts of this case, the Florida Supreme Court could reach the conclusion *1159 that it didthat Petitioner White fully realized lethal force would be used, and that he freely participated throughoutthat he possessed the requisite mens rea to permit the state to sentence him to die. The State Court could find, as implicitly it did, that the purposes of both deterrence and retribution would be served by the imposition of this death sentence, that Petitioner shared the blame for these killings and thus that in the end his punishment had been tailored to "his personal responsibility and moral guilt."
III.
Petitioner also contends that the reimposition of the death sentence by the Supreme Court of Florida after it was vacated on collateral attack by the trial court constitutes a violation of the double jeopardy clause of the Fifth Amendment.
Again the procedural history is not in dispute. On January 23, 1984, Beauford White filed motions in the trial court seeking post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, and a stay of his execution then scheduled for February 7, 1984. The trial judge, the Honorable Herbert M. Klein, who did not preside over the trial, heard oral argument on the post-conviction collateral attack on January 26, 1984 and rendered his opinion from the bench and again in writing on January 27, 1984. No new evidence was adduced at the hearing and argument was predicated upon the application of Enmund to the agreed upon facts. The trial court found that the Enmund petition was "well taken," that the Petitioner did not intend to kill and thus that the imposition of the death penalty was constitutionally impermissible. (T.R. at 67). The trial judge, while vacating the death sentence, did not resentence the defendant in order to avoid, in his view, any possibility that such a sentencing would preclude the state from appealing his ruling on what he termed "this very close question." (T.R. at 68).
On appeal to the Supreme Court of Florida, Petitioner argued that Judge Klein's order was the functional equivalent of an acquittal and that it would serve to bar appellate review under the double jeopardy clause. The State Court rejected that contention in these terms: "Appellee's argument ... is far reaching in its implications. Essentially, appellee argues that in a post-conviction proceeding a trial court decision that a sentence is constitutionally impermissible is not subject to review even though the state supreme court has previously held to the contrary and the United States Supreme Court has denied certiorari review. Appellee would have us establish trial courts as the supreme authority on constitutional law." 470 So. 2d at 1378, n. 1.
Petitioner has argued that the finding of the trial judge that the evidence introduced by the state was insufficient on the element of intent necessary to impose the death penalty constitutes an acquittal on that element. Petitioner asserts that once the state judge vacated the Petitioner's death sentence it could not constitutionally be reimposed by anyone at anytime. In support of that proposition Petitioner relies principally upon the Supreme Court's rulings in Bullington v. Missouri, supra; Burkes v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); and Arizona v. Rumsey, 467 U.S. 203, 104 S. Ct. 2305, 81 L. Ed. 2d 164 (1984), and upon the ruling of the Eleventh Circuit in Young v. Kemp, 760 F.2d 1097, 1105-07 (11th Cir.), reh. denied, 765 F.2d 154 (11th Cir.1985).
We believe that Petitioner has misunderstood the nature and purpose of the double jeopardy clause of the Fifth Amendment to the United States Constitution and has misapprehended the application of the governing case law to the facts of this case. The holdings of Bullington, Burkes, Young and Arizona v. Rumsey are inapplicable. Petitioner has not been subjected to retrial or resentencing, nor has he been required to run the "gauntlet" twice. Instead, he has merely been unsuccessful in his attempts to reverse his sentence. We find that he has not experienced multiple prosecutions and sentences but rather one prosecution *1160 and one sentencing which he elected to appeal collaterally, and thus that the double jeopardy protections of the Fifth Amendment have not been implicated.
First, his reliance upon Bullington v. Missouri, supra, is misplaced. In Bullington, the High Court held that double jeopardy applied to the sentencing phase of Missouri's bifurcated death penalty system. The defendant had been convicted of capital murder and in a separate sentencing proceeding was sentenced to life imprisonment by the jury. Bullington's conviction was reversed on appeal on the ground that the trial jury was not drawn from a fair cross-section of the community, and the state determined prior to the second trial to seek the death penalty. The Supreme Court ruled that the state's effort to seek the death penalty a second time on a new trial violated double jeopardy. Central to the Court's decision was the nature of the bifurcated proceeding in which Bullington was sentenced. The Supreme Court found that the sentencing proceeding had all the earmarks of a trial on guilt or innocence and thus the government was bound to prove certain aggravating factors beyond a reasonable doubt before the jury could render a death sentence. The jury's discretion was limited to the choice of only two penalties life in prison or deathand the Supreme Court determined that in sentencing Bullington to life in prison, the sentencing jury necessarily acquitted him of whatever may have been necessary to permit the imposition of the death sentence. In essence the jury had found that the evidence was insufficient to support the harsher sentence.
In Burkes v. United States, supra, the Supreme Court held that a defendant may not be retried if he obtains a reversal of his conviction on the grounds that the evidence was insufficient to convict. The Supreme Court noted that Burkes was foreshadowed by its holding in Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), where the defendant had been indicted for first degree murder and the trial court had instructed the jury that it could convict him either of that crime or the lesser included offense of second degree murder. The jury convicted him of second degree murder and the conviction was subsequently reversed on appeal. The Court held that a retrial on the first degree murder charge was barred because the defendant "was forced to run the gauntlet once on that charge and the jury refused to convict him." Id. at 190, 78 S. Ct. at 225.
Nothing in Bullington or Burkes supports Petitioner's contention. The thrust of the Supreme Court's holding in both Bullington and Burkes was to proclaim that the state having received "one fair opportunity to offer whatever proof it could assemble" is not entitled to a second opportunity to do that. See Bullington v. Missouri, at 451 U.S. at 446, 101 S.Ct. at 1862; Burkes v. United States, 437 U.S. at 16, 98 S. Ct. at 2149. We underscore again that Petitioner has not been forced to run the gauntlet twice in this case, nor has the state been given two opportunities to adduce its proof before the trier of fact or the sentencing court. The initial trial judge in the instant case, Circuit Judge Fuller, did not sentence Petitioner to a term of life in prison only to see that conviction reversed and the state start over again and seek the death penalty at a second factual hearing. In this case the conviction was for first degree murder and the Petitioner was sentenced to die. The new trial judge simply vacated the death sentence based upon oral argument; no new fact hearing was held and no new evidence adduced. This case is not Bullington revisited.
Petitioner has also argued at length that the case of Young v. Kemp, 760 F.2d 1097 (11th Cir.1985) supports his double jeopardy contention. We think Petitioner's reliance on Young v. Kemp is misguided. Young v. Kemp involved a complex procedural history. Young was tried and convicted of murder, armed robbery and robbery by intimidation arising out of a fight with his banker over a loan. After the shooting, Young took a wallet from the victim's back pants pocket and left the scene of the crime. Pursuant to Georgia's *1161 bifurcated death sentencing procedure, Young, after trial and conviction, was sentenced to death after the jury found that he was guilty beyond a reasonable doubt of two statutory aggravating factors. After exhausting his state remedies, he filed a habeas corpus petition in district court alleging ineffective assistance of counsel at both the guilt and sentencing phases, and, second, that the evidence adduced at trial was insufficient to support either aggravating circumstance found by the jury. The district court ruled that his trial counsel had been reasonably effective at the guilt phase, but had been constitutionally ineffective at the sentencing phase. In addition, the district court agreed with the Petitioner that the evidence was insufficient to support either of the statutory aggravating circumstances, finding there was no evidence to show that he had formed the intent to rob his victim prior to killing him. The district court granted the writ, the state appealed, and the Petitioner cross-appealed from the denial of his other claims.
On appeal the Circuit in Young v. Zant, 677 F.2d 792 (11th Cir.1982) (Young I) explicitly ruled that Young's counsel provided ineffective assistance during the guilt/innocence phase of the trial as well as at the sentencing phase, thus reversing the district court's denial of the writ with respect to the guilt phase. However, regarding the district court's holding that there was insufficient evidence to support the statutory aggravating factors, the Court in Young I made no explicit determination.
After the decision in Young I, the defendant was reindicted by a Green County, Georgia grand jury, again charged with murder, armed robbery and robbery by intimidation, and again informed that the state would seek the death penalty utilizing the two aggravating circumstances alleged in the first trial, and submitting to the jury a third new aggravating circumstance. Petitioner pleaded double jeopardy arguing that the federal district court's insufficiency finding amounted to a form of jeopardy, citing both Burkes and Bullington. The claim was overruled by the trial court, and the Georgia Supreme Court agreed with the trial court finding no double jeopardy bar to the imposition of a new death sentence based upon the same aggravating circumstances and factors alleged in the first case. The Petitioner filed in district court a motion to enforce judgment in his original federal habeas corpus proceeding, arguing that the state's attempt to impose the death penalty would violate the double jeopardy clause in light of the district court's prior ruling. The district court declined to enforce its prior habeas ruling, suggesting instead that it was appropriate for the Court of Appeals to determine the validity of the double jeopardy claim because the decision would turn in large measure upon the meaning of the previous decision in Young I.
The Court of Appeals, in an opinion by Judge Anderson, concluded that "the previous judgment of this court left intact the district court's finding of insufficient evidence to support the death sentence." Young v. Kemp, supra, 760 F.2d at 1101 (Young II). Thus it found that the double jeopardy principles announced in Burkes and Bullington prevented the state from seeking the death penalty at Young's retrial. The Court analyzed at length the effect of its opinion in Young I on the validity of the district court's finding of insufficient evidence, and what the double jeopardy implications of the district court's holding would be. The Court took pains however to distinguish that case from one where a finding of constitutional insufficiency clearly would be reviewable:
In the first instance, it is important to ask whether a finding of constitutional insufficiency is reviewable at all, that is, whether double jeopardy attaches as soon as a court makes its determination of insufficiency. This court has assumed otherwisethat it can reverse a federal district court's habeas determination of insufficient evidenceand it has done so when it found the lower court to be in error. Martin v. Alabama, 730 F.2d 721, 723 (11th Cir.1984). At first blush, this might seem to be at odds with the general proposition that a judgment of *1162 acquittal amounts to former jeopardy. However, where a reviewing court is assessing the sufficiency of the evidence in a case in which the defendant was originally convicted in the trial court (e.g., all federal habeas proceedings), a reversal of the reviewing court's insufficiency finding would not result in a retrial of the defendant. While a jury verdict of acquittal is absolutely final, see Burkes v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1 (1978), a judgment of acquittal after a jury conviction or an appellate reversal on the basis of insufficient evidence does not always amount to former jeopardy. There is a narrow exception in cases where an original jury verdict of guilty is set aside and a judgment of acquittal is entered on sufficiency of the evidence grounds either by the trial judge or by an intermediate appellate court. In such a case, it has been held that double jeopardy does not preclude a subsequent reversal on appeal of such a judgment of acquittal, because the appellate reversal would not result in a retrial but rather in a reinstatement of the jury's guilty finding ... (emphasis in original).
760 F.2d at 1101, n. 5.
The facts in the instant case fall far closer to the circumstances described in the footnote in Young II.
That the bar against double jeopardy is designed to protect a defendant from multiple trials was underscored by the Supreme Court in United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). In Wilson the trial court dismissed the indictment after the defendant had been found guilty upon trial by jury. The indictment was dismissed on the ground that the delay between the offense and the indictment had denied the defendant the opportunity for a fair trial. The government sought to appeal the dismissal of the indictment and the Supreme Court ruled that the appeal was not barred by double jeopardy. The Court held that the constitutional protection from government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offense. In reaching the conclusion the Court pointed to various circumstances where it had held that an order favoring the defendant could constitutionally be appealed by the government. In each of those cases, the common thread is that appellate review would not have subjected the defendant to a second trial. Like the defendant in Wilson, Petitioner has enjoyed a post-verdict collateral attack ruling entered in his favor by a trial judge. The State was able to challenge the ruling and the Florida Supreme Court was able to correct what it considered to be an erroneous findingall without subjecting the Petitioner to the "harassment traditionally associated with multiple prosecutions." Wilson, supra, at 352, 95 S. Ct. at 1026. Nothing in Arizona v. Rumsey, 467 U.S. 203, 104 S. Ct. 2305, 81 L. Ed. 2d 164 (1984), is contrary to this conclusion. There, the Court explained why its opinion in Wilson had no application to the case before it.
No double jeopardy problem was presented in Wilson because the appellate court upon reviewing asserted legal errors of the trial judge could simply order the jury's guilty verdict reinstated; no new fact finding would be necessary and the defendant therefore would not be twice placed in jeopardy.
Arizona v. Rumsey, 104 S.Ct. at 2311. See also United States v. Martinez, 763 F.2d 1297, 1309-11 (11th Cir.1985). By contrast, in Arizona v. Rumsey, the defendant had been acquitted of the death penalty; there was no verdict of guilt for the appellate court to reinstate. The death penalty could only be imposed in a second sentencing proceeding and it is this second trial after an acquittal which the double jeopardy clause prohibits. In short we do not believe that double jeopardy has been implicated here.
IV.
A. Petitioner's next contention is that the trial judge and the Florida Supreme Court improperly applied Section 921.141(5)(h), Florida Statute, establishing as an aggravating circumstance that a *1163 homicide was "especially heinous, atrocious or cruel" in the instant case. He claims that as applied here that aggravating factor was unconstitutionally vague and overbroad because the actual killings were committed by Ferguson and Francois and not by him. Petitioner cites not only Enmund but also Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), where the Supreme Court observed that the death sentence must relate to the relevant facts and circumstances of the case and the character record of the individual offender. At the core, Petitioner seems to suggest that the Florida courts improperly applied this aggravating factor based not upon the conduct, motive and intent of the Petitioner, but rather upon that of his co-conspirators', and thus that the application of this factor denuded this sentence of an individual and particularized analysis of his conduct. This argument is really a variation of the basic Enmund argument. For the reasons we have already outlined at great length in Part II of this opinion, we reject it and find no error in the application of this factor to this case.
In applying the "especially heinous, atrocious or cruel" standard here, the Florida Supreme Court noted that it was influenced by the magnitude of the criminal conduct, "[t]he calculated slaughter of six individuals and attempted slaughter of two others," what had been characterized by one of the co-felons as "the St. Valentine's Day massacre." White v. State, 403 So.2d at 339. The Supreme Court of Florida reiterated the standard which it had set out in Cooper v. State, 336 So. 2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S. Ct. 2200, 53 L. Ed. 2d 239 (1977), noting that while all murders may be heinous, this aggravating factor "contemplates the conscienceless, pitiless or unnecessarily torturous crime which is accompanied by such additional acts as to set it apart from the norm of capital felonies." Id. at 338. The Cooper case involved a situation where defendant shot the victim immediately upon confronting him and the victim died instantly, painlessly and without any additional act which made the killing "heinous" within the meaning of the statute.
Here, the Florida Court found that the victims "were required to submit to a protracted ordeal during which time they undoubtedly agonized over the prospect of being murdered." 403 So. 2d 338. The trial judge specifically made written findings on this point. The protracted and brutal nature of the ordeal endured by the victims, support, we think, the appropriateness of labeling the crimes and White's conduct "especially heinous, atrocious or cruel." Mills v. State, 462 So. 2d 1075, 1080-81 (Fla.), cert. denied, ___ U.S. ___, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985); Henderson v. State, 463 So. 2d 196, 201 (Fla.), cert. denied, ___ U.S. ___, 105 S. Ct. 3542, 87 L. Ed. 2d 665 (1985). The Supreme Court of Florida could fairly apply the "especially heinous, atrocious or cruel" factor to the instant case and to the conduct of this Petitioner.
B. Finally, as a third variation of the Enmund theme, Petitioner contends that the death sentence was unconstitutionally infirm because the trial court and the Florida Supreme Court failed to give weight to the non-statutory mitigating circumstance that he was a non-shooter.
The trial judge made written findings relating to mitigating circumstances as specified by Section 921.141(6), Florida Statute Annotated (1985). Judge Fuller rejected Petitioner's claim of mitigation and concluded that "no mitigating circumstances exist[ed] which could possibly outweigh the aggravating circumstances." (emphasis added). (T.R. at 194). As we've stated already, the Florida Supreme Court made a thorough and individualized analysis of this defendant's participation. To suggest that they did not consider this non-statutory mitigating factor misapprehends the nature and thrust of their opinions. What the state courts found was that Petitioner's status as a non-shooter was insufficient to outweigh the aggravating circumstances. Petitioner now claims that the refusal of the Florida courts to label his non-shooter *1164 status as a mitigating factor somehow constitutes constitutional error. We disagree. We think that what Petitioner confuses is the failure of a sentencing court to consider that evidence at all with the proper function of a sentencing court which is to determine the weight to be accorded such evidence.
Petitioner relies upon Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), to support his argument that the failure to find the existence of this non-statutory mitigating circumstance error. While Eddings clearly provides that a sentencing court must hear all of the evidence proffered by a defendant in mitigation, the decision as to whether a mitigating circumstance has been proven and the weight to be given rests with the sentencing court. Eddings, supra, at 114-115, 102 S. Ct. at 876-77. In the instant case the trial judge concluded that Petitioner's proffered evidence as to his level of participation and corresponding degree of culpability failed to establish a mitigating circumstance. It is surely the domain of the state trial court to determine the existence and the weight to be given the mitigating circumstance. See, Stano v. State, 460 So. 2d 890, 894 (Fla.1984), cert. denied, 456 U.S. 984, 105 S. Ct. 2347, 85 L. Ed. 2d 863 (1985); Smith v. State, 407 So. 2d 894, 901-903 (Fla.1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2260, 72 L. Ed. 2d 864 (1982); Lemon v. State, 456 So. 2d 885, 887 (Fla.), cert. denied, ___ U.S. ___, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1984).
"Mitigating circumstances must, in some way, ameliorate the enormity of the defendant's guilt." Eutzy v. State, 458 So. 2d 755, 759 (Fla.1984), cert. denied, ___ U.S. ___, 105 S. Ct. 2062, 85 L. Ed. 2d 336 (1985). It seems clear to us that the state courts did not ignore the evidence presented in mitigation, but rather found Petitioner's characterization of his role in the killings as "minor" unconvincing and concluded that this evidence failed to rise to the level of mitigation. White v. State, 403 So. 2d 331, 339 (Fla.1981), cert. denied, 463 U.S. 1229, 103 S. Ct. 3571, 77 L. Ed. 2d 1412 (1983). See also, Shriner v. Wainwright, 715 F.2d 1452, 1457 (11th Cir.1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984); and Lusk v. State, 446 So. 2d 1038, 1043, (Fla.) cert. denied, ___ U.S. ___, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984). Thus we must reject Petitioner's argument and conclude that the Florida courts did not violate Petitioner's constitutional rights in this regard.
For all of the reasons which this Court has enumerated at great length, it is hereby
ORDERED AND ADJUDGED that Petitioner Beauford White's application for a writ of habeas corpus must be and is DENIED.
NOTES
[1] The convictions and death sentence of Marvin Francois were upheld throughout the appellate process. Francois v. State, 407 So. 2d 885 (Fla. 1981), cert. denied, 458 U.S. 1122, 102 S. Ct. 3511, 73 L. Ed. 2d 1384 (1982); Francois v. State, 423 So. 2d 357 (Fla.1982); Francois v. Wainwright, 741 F.2d 1275 (11th Cir.1984) (affirming denial of habeas corpus petition); Francois v. State, 470 So. 2d 685, 687 (Fla.1985); Francois v. Wainwright, 614 F. Supp. 127 (S.D.Fla.1985) (denying second habeas corpus petition); Francois v. Wainwright, 763 F.2d 1187, 1188 (11th Cir. 1985), reh. denied, 765 F.2d 154 (11th Cir.1985). After nonsuccessful exhaustion of his appeals, Francois was executed on May 28, 1985.
John Ferguson's convictions for first degree murder were affirmed by the Florida Supreme Court which remanded the case for resentencing according to the mitigating circumstances relating to Ferguson's mental state. Ferguson v. State, 417 So. 2d 639 (Fla.1982). The death penalty was again imposed and affirmed by the Florida Supreme Court. Ferguson v. State, 474 So. 2d 208 (Fla.1985).
[2] The Fifth Circuit's approach in Bullock conflicted with the interpretation of Enmund adopted by this Circuit in Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985), where the United States Court of Appeals ruled that where a jury may not have found that the defendant possessed the requisite culpability required by the Eighth Amendment, a federal habeas corpus court could conduct an independent de novo review of the record in order to make that determination.
[3] Because the standard of review in the instant case is so important to the ultimate determination on the merits, we lay out those limiting clauses. Section 2254(d) provides:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing of the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit
1. that the merits of the factual dispute were not resolved in the state court hearing;
2. that the factfinding procedure employed by the state court was not adequate to afford a full and fair hearing;
3. that the material facts were not adequately developed at the state court hearing;
4. that the State court lacked jurisdiction of the subject matter or over the applicant in the state court proceedings;
5. that the applicant was an indigent in the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the state court proceedings;
6. that the applicant did not receive a full, fair, and adequate hearing in the state court proceeding; or
7. that the applicant was otherwise denied due process of law in the State court proceeding; or
8. or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.
[4] The issue of criminal intent has long been considered a fact question to be resolved on the basis of all the evidence. United States v. Henry, 749 F.2d 203, 213 (5th Cir.1984); United States v. Zimeri-Safie, 585 F.2d 1318, 1321 (5th Cir.1978); United States v. Greenfield, 554 F.2d 179 (5th Cir.1977), cert. denied, 439 U.S. 860, 99 S. Ct. 178, 58 L. Ed. 2d 168 (1978).
[5] The following questions were also put to Archie at trial (T.R. at 1138): "Question: Did that mean they needed more than two people to handle the job they were going to do? Answer: Evidently." Then Archie said at a later point: "Marvin said, `That's why we had to use Beauford, because we figure somebody else would come home with him.'" "Question: The person they were after? Answer: Yes. Question: They needed you for what purpose? Answer: To drive them over to get out there. Question: Are you the only one with a car? Answer: Yes. Question: So you were supposed to be the driver and it was supposed to be Francois and Ferguson but they needed a third person, Beauford White, in the event the person they were after came home with more people than they expected. Is that correct? Answer: Yes." (T.R. 1138-39).
[6] Petitioner makes much of the fact that he did not personally dispose of the weapon when asked to do so by his co-conspirators, but instead delegated the task to them. We think Petitioner's method of divesting himself of the weapon is susceptible to various interpretations. Petitioner claims that the matter of weapon disposal reflects his underlying distate for the entire operation, thus further negating any manifestation of the requisite intent. However Petitioner may not reduce his culpability for the murders simply because he didn't throw the weapons in the river. Indeed Petitioner's reliance upon his cohorts to accomplish this task may be viewed simply as confirmation of his desire to elude detection.
[7] We note in passing that an analysis of the facts of this case using the standards enunciated by the ALI Model Penal Code also supports the particularized Enmund finding of the Florida Supreme Court. We observe that the ALI Model Penal Code has been cited by the Supreme Court both in Enmund v. Florida and by Mr. Justice White in his separate opinion in Lockett v. Ohio, supra, 438 U.S. 586 at 627-28, 98 S. Ct. 2954, at 2984-85. Section 2.02 of the Model Penal Code undertook the extremely difficult task of articulating and discerning between different mens rea requirements for the establishment of liability. Section 2.02 had as its purpose to promote a clarity of definition of specific crimes and "to dispel the obscurity with which the culpability requirement is often treated when such comments as `general criminal intent,' `mens rea,' `presumed intent,' `malice,' `willfulness,' `scienter,' and the like must be employed." See, Comments, Section 2.02 ALI Model Penal Code at 123. In defining the kinds of culpability under the model penal code, distinctions were drawn between acting purposely or knowingly on the one hand, and recklessly or negligently on the other. Section 2.02, Subsection 2(b)(ii) indicates that a person acts knowingly if "he is aware that it is practically certain that his conduct will cause such a result." Prior to the commission of the robberies and murders in the instant case Petitioner participated, as we've repeatedly noted, in the selection of a firearm with his co-defendants, revealing his anticipation that lethal force might be used. He was told at the start that they would be hitting a dope house, thereby heightening his knowledge. He entered the target home after learning that the house had been occupied by Margaret Wooden. Moreover, the fact that three armed men were needed to carry out the robbery of a small cinderblock home initially apprised the Petitioner as well that force might be necessary to accomplish the robbery. That contemplation grew with each passing hour. Petitioner's continued armed presence, along with his co-defendants, awaiting more robbery victims doubtlessly alerted the Petitioner that the likelihood of the use of lethal force grew still further. Finally, at some point along the way, Petitioner had to be practically certain that his efforts in guarding and subduing the victims would facilitate the end result of their murders. He was present throughout a variety of threats, including the shotgun threat to the head of Margaret Wooden, and was present when the discussion of murdering all of the victims transpired when the mask fell off the face of one of the co-conspirators. While a narrow distinction is drawn by the Model Penal Code between acting purposely and acting knowingly, a central distinction exists between acting knowingly or purposely on the one hand and acting recklessly or negligently on the other. Analytically we think the Supreme Court of Florida could have found on the face of this fact pattern that Petitioner Beauford White acted knowingly as that term is defined and employed in the ALI Model Penal Code.
[8] Although Petitioner has urged this Court to consider his verbal objection as conclusively disposing of his intent, this record will not support that conclusion. In Andrews v. Shulsen, 600 F. Supp. 408 (Utah 1984) a federal court rejected a similar argument from a habeas Petitioner. The Andrews Petitioner was sentenced to death for the murder and attempted murder of five victims during the robbery of a stereo shop. Petitioner and his co-defendant forced the victims into the basement of the store and bound their hands and feet. Petitioner poured liquid drain cleaner into a cup. The victims were forced to drink it and Petitioner's partner shot each victim. Because Petitioner twice told his cohort, "I can't do it; I'm scared," Petitioner maintained that his protest belied the requisite intent for the death penalty. The habeas court found that Petitioner's actions in guarding the victims at gunpoint, in measuring out the doses of drain cleaner, and in taping the mouths of the victims refuted any moral qualms the Petitioner had expressed. 600 F. Supp. at 430. The Florida courts could fairly find here that a single statement of opposition to the shootings, made in the course of the two-plus hours during which the ordeal continued, was not enough to vitiate everything else that Petitioner said and did, nor could it obscure the knowledge which he possessed.
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228 N.J. Super. 306 (1988)
549 A.2d 867
TABITHA MODERY, AN INFANT BY HER GUARDIAN AD LITEM, KEITH MODERY, AND KEITH MODERY, INDIVIDUALLY, PLAINTIFF,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT.
Superior Court of New Jersey, Appellate Division.
Submitted September 27, 1988.
Decided October 18, 1988.
*307 Before Judges PRESSLER, O'BRIEN and SCALERA.
Generoso Squitieri, attorney of record for plaintiffs appears pro se on this appeal.
The opinion of the court was delivered by SCALERA, J.A.D.
Generoso Squitieri is the attorney of record for plaintiffs in this suit for personal injuries filed pursuant to R. 4:44-1 et seq., and he appeals from the trial court's decision to allow him a fee of only $2,000 plus costs from the total settlement of $35,000.
Tabitha Modery was three years old on September 25, 1987 when she was riding as a passenger in an auto owned and operated by her mother, Alexandra Modery. As a result of the mother's negligent operation of the automobile, the infant fell out of the vehicle and apparently suffered severe personal injuries. At the time Alexandra's automobile insurance policy had lapsed for non-payment of premiums.
Keith Modery, the natural father of Tabitha, was then in the process of obtaining a divorce from Alexandra and was represented by the appellant Squitieri for that purpose. On November 19, 1987 Keith entered into a separate retainer agreement with Squitieri. Under this agreement, Squitieri would also *308 represent Keith's interests, and those of his infant daughter Tabitha, against Alexandra for damages arising out of the accident of September 25, 1987. The agreement specifically provided that Keith was acting as "guardian ad litem" for Tabitha and that he was not responsible to pay to Squitieri any fee which would "exceed 25%" of any recovery.
Because Alexandra's insurance had lapsed, Squitieri asserted a claim on behalf of Tabitha and Keith against the latter's insurance carrier, Liberty Mutual Insurance Company under the "uninsured motorist coverage" of his policy. At first, Liberty resisted any payment because of its refusal to accept that Tabitha was a member of Keith's household as required by its policy. After several months, Squitieri finally managed to provide proof to that effect to Liberty's satisfaction, at which time Liberty agreed to pay "personal injury protection," (PIP) benefits resulting from Tabitha's injuries as well as the policy limit of $35,000 on the uninsured motorist coverage of the policy for the injuries which Tabitha had sustained.
As a result the instant complaint was filed pursuant to R. 4:44-1 et seq., to have the court approve the settlement ("friendly") involving an infant and a hearing was held on January 7, 1988. At that time Squitieri appeared for the plaintiffs and another attorney appeared to protect Liberty's interests.
The trial judge acknowledged the factual background heretofore noted and observed that the Liberty's maximum liability under Keith's policy was $35,000, and thus "there is nothing further that we can do on behalf of the child in this case" to recover any more monies from the mother or any other party. However, he refused to honor the 25% retainer agreement entered into by Keith on behalf of Tabitha because he felt that it was inimical to the child's interest and enforcement of such an agreement would violate the court's duty to protect that interest. He therefore allowed a counsel fee of only $2,000 plus costs of $275 instead of the retainer agreement amount of 25% or $8,681.25, plus costs. He suggested that his decision to reduce the fee was based also on his perception of the minimum *309 effort required to be expended by Squitieri in obtaining the $35,000 settlement.
Squitieri filed a motion for reconsideration of the fee allowance which he supported by his affidavit detailing the services rendered to plaintiffs in connection with this case. Keith also indicated his approval of Squitieri's application and urged that the court honor the retainer agreement. The trial court again refused to increase Squitieri's fee and questioned the amount of the professional effort claimed to have been expended. He reiterated that the amount of $2,000 was a reasonable allowance for the attorney's work done in this matter. This appeal follows.[1] While Squitieri acknowledges the inherent power of the court to review the basic fairness and reasonableness of any contingent fee agreement, he argues strenuously that there was no reason for the court to dishonor that agreement in these circumstances. We agree.
R. 4:44-3 undertakes to detail the trial court's function in approving such "friendlies" and provides, in part, that,
The court, on the request of the claimant or the claimant's attorney or on its own motion, may approve the expenses incident to the litigation, including attorney's fees.
Under R. 1:21-7 our Supreme Court has specifically approved and dealt with the subject of attorneys' contingent fees. It has therein decreed that, in the case of an infant, such a fee shall not exceed 25% of the amount recovered by settlement. R. 1:21-7(c)(5). The authority of the Supreme Court to regulate this area was specifically reviewed and found to be appropriate by us in Amer. Trial Lawyers Assoc. v. N.J. Supreme Ct., 126 N.J. Super. 577 (App.Div. 1974), aff'd 66 N.J. 258 (1974). During the course of that decision we recognized the Court's right and obligation to regulate such fees and observed that any rule adopted in that regard must be presumed to be valid. However, we also noted, 126 N.J. Super. at page 592, that
*310 As the cases have recognized, contingent fee arrangements involve unique problems in the attorney-client relationship, including those arising from the establishment by contract of a method for compensation which bears no direct relationship either to the effort expended by the attorney or the actual value of the services. [Emphasis supplied].
In this case we conclude that Squitieri was entitled to have the trial court honor his contingent fee retainer agreement absent proof that doing so would amount to an unconscionable or unreasonable overreaching which would deprive the infant of monies otherwise due to her. Contrary to the trial court's bare conclusion, we think there was nothing to suggest that Squitieri had procured this fee arrangement in such a manner or that its effect was to unconscionably deprive Tabitha of monies due to her. Hughes v. Eisner, 14 N.J. Super. 58, 65 (App.Div. 1951). While the trial court's efforts to increase the infant's share of the settlement monies are laudable, it should not have done so at the expense of the attorney.
Thus, we vacate the judgment as it affects the division of the $35,000 settlement monies and remand the matter for entry of a corrected judgment allowing Squitieri his 25% fee plus the expended costs of $275, with the balance of those monies to be distributed to the infant plaintiff as directed previously.
NOTES
[1] We are aware that no one has appeared in opposition to appellant's contention that the trial court abused its discretion in arbitrarily reducing the fee from that agreed to in the retainer agreement.
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632 F. Supp. 1106 (1986)
QUASAR COMPANY, A DIVISION OF MATSUSHITA ELECTRIC CORPORATION OF AMERICA, Plaintiff,
v.
The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY and Devco Distribution Systems, Defendants.
No. 83 C 4617.
United States District Court, N.D. Illinois, E.D.
March 31, 1986.
*1107 John Maniatis, Ray, Robinson, Hanninen & Carle, Chicago, Ill., for plaintiff.
John C. Palmer, Jr. and Ellen L. Falkof, Atchison, Topeka and Santa Fe Railway Corp., Chicago, Ill., for defendants.
MEMORANDUM AND ORDER
MORAN, District Judge.
It all started with what looked like a simple discovery request. Plaintiff Quasar Company (Quasar) wanted documents and answers to interrogatories which would relate to the degree of defendant Atchison, Topeka and Santa Fe Railway's (Santa Fe's) negligence in the theft of a shipment of Quasar's video cassette recorders from a Santa Fe yard. This court granted Quasar's motion to compel. Quasar Co. v. Atchison, Topeka and Santa Fe Railway Co., No. 83 C 4617 (N.D.Ill. July 30, 1985) [Available on WESTLAW, DCTU database]. Santa Fe rapidly returned asking us to reconsider, asserting that our "decision to consider a rail carrier's degree of negligence in a freight loss and damage case [was] the first such holding since the early 1900s." It argues that we relied on Illinois law in an area in which federal law long ago preempted state law.
Santa Fe is correct; we were wrong and we reverse our July 30 order. The question proves to be substantially more complex than either its appearance or the party's briefs initially led us to believe. We went astray in part because the problem is new: a question of what to do with old rail carrier laws and regulations when a service is suddenly deregulated. But the unusual arguments the parties made also helped us get off-track. In the hope that we may not be similarly misled in the future, we take some time and space for discussion of the law which should govern this suit.
I.
The facts which led to this lawsuit are set out in this court's first memorandum and order in this case, Quasar Co. v. Atchison, Topeka and Santa Fe Railway Co., No. 83 C 4617, slip op. (N.D.Ill. Feb. 17, 1984) [Available on WESTLAW DCTU database] The VCRs were in a cargo container en route from Japan to Chicago. An ocean carrier, Sea-Land Services, Inc., issued a through bill of lading in Japan and shipped the container to Los Angeles. There, defendant Devco Distribution Systems (Devco), which Quasar had hired, transferred the container to Sante Fe for rail carriage to *1108 Chicago. The container vanished from Santa Fe's Los Angeles yard the next day.
Santa Fe has admitted liability, so the only question in this case is the amount of damages Santa Fe must pay Quasar for the stolen shipment of VCRs. When Devco delivered the container, Santa Fe issued an interchange receipt which carried a computer overprint to the effect that rights, duties and liabilities "are governed by ATSF circular no. TOFC-1." Section 52 of that circular states that liability for loss or damage "shall be subject to released values as established by ATSF." Santa Fe asserts that the released value it has established is $1.50 per pound, and so its liability is limited to $36,504. Quasar states that the actual value of the shipment was $450,000. It argues, as one would expect, that the claimed liability limitation does not apply to it, and has offered several legal theories which it believes would support that result. This court discussed most of these in its February 17 memorandum, in which we found that Quasar had at least stated a claim and denied Santa Fe's motion to dismiss.
Quasar's motion to compel (which led to the July 30 order), however, was grounded on yet another theory. Quasar argued there that if it could show gross negligence in the security arrangements at Santa Fe's Los Angeles yard, the liability limitation would be void. Therefore, it maintained, the issue of gross negligence was relevant to the suit. It asked for discovery designed to ferret out gross negligence.
A.
Under interstate common carrier law for most of this century Quasar's position would have had no basis. The system of liability for common carriers, firms in the business of providing carrier service to the public, differs sharply from ordinary tort or contract liability. A private carrier, one who has specially agreed in a particular instance to transport goods or persons but who does not hold himself out to the public as a carrier, is subject to liability for failure to use ordinary care. But in the system of common carrier liability, at least until recently, a common carrier's negligence was not relevant because it was implicitly assumed. At common law a common carrier was liable for loss or damage to a shipper's goods as an insurer would be: liable for the full value of the goods unless the loss was caused by an act of God, the public authority, a public enemy, the shipper, or by an inherent vice in the goods. The shipper and the carrier could, however, contractually agree that the carrier's liability would be limited to a specific amount if the shipper received in consideration a lower rate for the carriage. These principles, in the main, were carried over into the Interstate Commerce Act. The basic rule was that the carrier was liable for the full value of goods lost or damaged. However, if authorized by the Interstate Commerce Commission (ICC), a carrier could offer "released value rates": the shipper "released" the goods at a certain value and in return the carrier gave the shipper a lower rate. The shipper thus became in effect a coinsurer of his goods. If lost or damaged, his recovery was limited to the released value. See generally Shippers National Freight Claim Council, Inc. v. I.C.C., 712 F.2d 740, 745-748 (2d Cir.1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3534, 82 L. Ed. 2d 839 (1984); Howe v. Allied Van Lines, Inc., 622 F.2d 1147, 1156-1157 (3d Cir.), cert. denied 449 U.S. 992, 101 S. Ct. 528, 66 L. Ed. 2d 289 (1980).
In the regime of released value rates, what governs the size of a recovery is not the degree of the carrier's negligence but rather the validity of the contract term for the released value. If a liability limitation is valid, recovery cannot exceed the released value no matter how negligent the carrier was. Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 57 S. Ct. 73, 81 L. Ed. 20 (1936). Most courts have found, for example, that a liability limitation is unaffected by a breach of an essential term of the contract, Conoco, Inc. v. Andrews Van Lines, Inc., 526 F. Supp. 720 (W.D.Okla.1981), gross negligence, Tishman & Lipp, Inc. v. Delta Airlines, *1109 275 F. Supp. 471, 480 (S.D.N.Y.1967), aff'd 413 F.2d 1401 (2d Cir.1969), or even willful conduct by the carrier's employees, Neal v. Republic Airlines, Inc., 605 F. Supp. 1145, 1149 n. 3 (N.D.Ill.1985). It matters not, apparently, whether the goods were stolen, either while in transport or while being stored, Western Transit Co. v. A.C. Leslie & Co., 242 U.S. 448, 37 S. Ct. 133, 61 L. Ed. 423 (1917), even if an employee of the carrier stole them, Tishman, 275 F.Supp. at 480, indeed not even if an employee of the carrier deliberately set fire to them, Rocky Ford Moving Vans, Inc. v. United States, 501 F.2d 1369, 1373 (8th Cir.1974) (dictum).
On the other hand, if there is no valid liability limitation, then the shipper recovers by simply proving delivery to the carrier in good condition and arrival in bad condition (or no arrival at all), unless the carrier can prove one of the traditional exceptions. Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 137-138, 84 S. Ct. 1142, 1144, 12 L. Ed. 2d 194 (1964). In neither case, then, does the carrier's conduct affect the outcome. Thus, if that system of liability applies here, defendants' gross negligence would indeed not be relevant and discovery on that subject would properly be denied.
B.
What was not clear to us, however, at the time of Quasar's motion was whether the transaction here comes under that system of liability. Because the VCRs were inside a container, the loss comes under a newly murky area of the law. The Interstate Commerce Commission exempted trailer on flatcar (TOFC or "piggyback") and container on flatcar (COFC) services from federal economic regulation in 1981. 46 Fed.Reg. 14348 (1981). The exemption came pursuant to authority granted by Congress, codified at 49 U.S.C. § 10505 as part of the Staggers Rail Act of 1980. Congress expressly encouraged an exemption for services which were "part of a continuous intermodal movement," a category which includes TOFC/COFC. 49 U.S.C. § 10505(f), 49 C.F.R. § 1090.1. See generally American Trucking Ass'ns v. I.C.C., 656 F.2d 1115 (5th Cir.1981). As one feature of deregulation, railroads no longer need publish nor file with the I.C.C. rates applicable to TOFC/COFC services. Id. at 1124; 46 Fed.Reg. at 14349. The question then becomes whether deregulation means that railroads, when transporting goods by TOFC/COFC, are required to comply with any portion of the Interstate Commerce Act.
Santa Fe's position on the subject is astoundingly simple. It maintains that thanks to deregulation it is no longer a common carrier when performing TOFC/COFC services. Exemption frees it from any and all terms of the Interstate Commerce Act and makes it a private carrier. It therefore incurs liability only insofar as it expressly contracts for it, it says, and so cannot be liable for more than the $1.50 per pound it has established for itself. Santa Fe thus did not raise the issue of federal preemption in its response to Quasar's motion to compel; indeed, it argued little except the pleadings. Since Quasar did not allege gross negligence as a basis for recovery in its complaint, defendants said, gross negligence was not relevant. Unfortunately, Quasar's brief was no more helpful, merely citing two Illinois cases from the 1890s, a California case dealing with intrastate carriage and a fairly recent Canadian case, all for the proposition that a carrier cannot contract out of its own gross negligence.
Ordinarily a court should decide questions on the issues the parties present to it, rather than on an issue neither party has briefed. See Williams v. City of St. Louis, 783 F.2d 114, 116 (8th Cir.1986). Presented with two unusual arguments, this court chose a point where they might be reconciled. If deregulation meant that carriers were no longer subject to the Interstate Commerce Act, it was not unreasonable to turn the legal clock back to common law principles which were developing before that Act was passed and which apparently had continued to develop elsewhere. *1110 See Quebec Liquor Corp. v. Owners and Charterers of the Vessel Dart Europe, 1979 Am.Mar.Cas. 2382, 2385 (Fed.Ct. Ottawa, Ont., Can. 1979). And if Santa Fe was now not a common carrier, but a private carrier, its degree of negligence could well be relevant to the amount of recovery. See 13 Am.Jur.2d 565 (1964). The question before us was after all discovery, not liability, and the confusion could be resolved at a later time (with, hopefully, better briefs).
Now, however, Santa Fe has raised an argument of federal preemption. It maintains that we cannot rely on the state law decisions which we cited in our July 30, 1985 memorandum granting the motion to compel because a carrier's liability for goods carried interstate is wholly a matter of federal law. American Railway Express Co. v. Levee, 263 U.S. 19, 44 S. Ct. 11, 68 L. Ed. 140 (1923); Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. 314 (1913).
Certainly this court recognizes that where the I.C.C. has exercised its authority to regulate, then not only state statutes and regulations but also state common law principles are preempted insofar as they conflict with the federal regulation. Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981). The case at bar, however, is not so simply resolved. Perplexingly, it presents an instance where the I.C.C. has chosen not to regulate. Further, Santa Fe's arguments, taken together, apparently place it under no law at all. It is not bound by state law, it says, because preemption makes carrier liability a matter of federal law. Yet it is not bound by federal law either, because deregulation has released it from the Interstate Commerce Act. Whatever the intent of Congress in passing the Staggers Act, this court does not think it intended to make each railroad a sovereign, free to make its own law. Quasar, however, rests on its original argument. This court concludes, then, that to decide this question it will need to go beyond the briefs of the parties. We proceed to a search for the source of the law which will govern this case.
II.
Within constitutional limits, federal preemption of state law is found where Congress has explicitly expressed its intent to preempt, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983), or where the nature and object of the federal laws and regulatory scheme show Congress' intent to occupy the whole field, Campbell v. Hussey, 368 U.S. 297, 82 S. Ct. 327, 7 L. Ed. 2d 299 (1961). Further, even where Congress has not entirely displaced the states in an area, state law will be preempted where it conflicts with federal law, i.e., where it is physically impossible to comply with both laws or where the state law is an obstacle to the purposes and objectives of the federal law. Michigan Canners and Freezers Ass'n v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S. Ct. 2518, 81 L. Ed. 2d 399 (1984). See generally Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 203-204, 103 S. Ct. 1713, 1721-1722, 75 L.Ed.2d (1983). Since the regulations of a federal agency have the force of law, they too can preempt state law. The same analysis is applied to determine whether they have in fact preempted it. Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982).
There seems little doubt that, at least until deregulation, federal law controlled all questions of interstate carrier liability and preempted any state law that might otherwise have been applicable. For example, the Supreme Court has twice held that state laws which would have invalidated an agreement and allowed a shipper to recover more than the released value were preempted by federal law. Levee, 263 U.S. at 21, 44 S. Ct. at 12; Galveston, Harrisburg & San Antonio Railway Co. v. Woodbury, 254 U.S. 357, 41 S. Ct. 114, 65 L. Ed. 301 (1920). Most courts faced with *1111 the question also concluded that federal law is the sole source of remedies for shippers, preempting, for example, any state common law action for negligence. See, e.g., Fulton v. Chicago, Rock Island & Pacific Railroad Co., 481 F.2d 326, 331-332 (8th Cir.), cert. denied 414 U.S. 1040, 94 S. Ct. 540, 38 L. Ed. 2d 330 (1973); W.D. Lawson & Co. v. Penn Central Co., 456 F.2d 419 (6th Cir.1972).[1]
The question is whether state law principles are still preempted from application to TOFC/COFC services now that they have been deregulated. There may be room for state regulation of certain aspects even of an area which is tightly controlled by federal law, see Pacific Gas, 461 U.S. at 216, 103 S. Ct. at 1728 (nuclear energy), including regulation of rates charged for a commodity traveling in interstate commerce, Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983) (electricity). Congress can act to authorize the use of state law in an area otherwise preempted, Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 472 U.S. ___, 105 S. Ct. 2545, 86 L. Ed. 2d 112 (1985), and agency regulations can be construed as showing an intent not to preempt state law in an area within the agency's authority. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. ___, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985). Either Congress or the I.C.C. thus could, at a stroke, give state law a role in interstate carrier liability which it has not had for seventy to eighty years.
On reconsideration, however, and now that Santa Fe has raised the issue, it does not appear that TOFC/COFC deregulation was that stroke. Congress, in the same section of the Staggers Act which provided for deregulation, also provided that no exemption order would or could relieve a railroad from its liability obligations imposed by the liability provisions of the Interstate Commerce Act. 49 U.S.C. § 10505(e). The I.C.C., in its exemption order, expressly retained jurisdiction over TOFC/COFC services. 46 Fed.Reg. at 14349-14350. These actions must be read in light of the expressed intention of Congress to preempt conflicting state law for all matters covered by the Interstate Commerce Act or within the jurisdiction of the I.C.C. 49 U.S.C. § 10501(c)(2). The purpose of deregulation was to make railroads more competitive in interstate freight carriage. To achieve that purpose, a uniform national policy is required. If state law were to apply to carrier liability, liability would be different in different states. That would be an obstacle to Congress' current purposes and objectives, just as it was to the former ones. See Adams Express, 226 U.S. at 507-508, 33 S. Ct. at 152-153; cf. Kalo Brick, 450 U.S. at 324-327, 101 S. Ct. at 1133-1135.
This court concludes that federal law still preempts state law in the area of carrier liability for interstate TOFC/COFC services. Insofar as our previous order rested on state law, then, it cannot stand.
III.
It does not follow, however, that Santa Fe's liability is under no law at all. The statutory and regulatory grounds for finding preemption are also grounds for finding that a deregulated rail carrier remains under the law of the Interstate Commerce Act, at least for issues of liability.
In the first place, this court thinks that liability for TOFC/COFC services is still covered by the Act. The statute authorizing deregulation also expressly imposed on the deregulated carrier "an obligation to provide contractual terms for liability and claims which are consistent with the provisions *1112 of section 11707 of this title." 49 U.S.C. § 10505(e). The ICC continues to issue regulations on carrier liability for deregulated services. 46 Fed.Reg. 32257 (1981). We read these congressional and ICC actions to mean that TOFC/COFC liability is still directly governed by the terms of the statutes and ICC regulations.
Santa Fe argues that the statutory language leaves room for its interpretation that for TOFC/COFC services it is a private carrier not subject to the statute. Congress' order to provide "terms ... consistent with" the Act is not the same thing as placing carriers directly under the Act. As long as Santa Fe has provided, among its array of offerings to shippers, a set of contractual terms consistent with the Act, it has, it believes, fulfilled its literal obligation under the statute. It maintains that its liability is a private contractual matter.
Even if the Act's literal coverage of TOFC/COFC services is in doubt, however, the doubt would not change the result. To the extent that losses from a deregulated portion of interstate freight carriage would not be directly governed by statute, they would be controlled by federal common law which is drawn from the statutes. First Pennsylvania Bank, N.A., v. Eastern Airlines, Inc., 731 F.2d 1113, 1117, 1122 (3d Cir.1984) (air freight deregulation).
Federal courts have the power to develop remedies which are outside the precise scope of what has been prescribed by Congress by drawing on federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 103, 92 S. Ct. 1385, 1392, 31 L. Ed. 2d 712 (1972). The use of federal common law is particularly appropriate where, as here, the question falls in an area where federal law has preempted state law, Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S. Ct. 172, 173, 87 L. Ed. 165 (1942), and federal policy dictates a need for uniformity throughout the nation, United States v. Yazell, 382 U.S. 341, 354, 86 S. Ct. 500, 507, 15 L. Ed. 2d 404 (1966). Federal common law is also properly applied where the particular facts of a case may fall outside the literal coverage of a federal statute, but the use of common law will fill gaps in the congressional statutory pattern or otherwise make that pattern effective. United States v. Little Lake Misere Land Co., Inc., 412 U.S. 580, 593, 93 S. Ct. 2389, 2397, 37 L. Ed. 2d 187 (1973). Thus common law principles have long been used to fill gaps in or supplement the Interstate Commerce Act. See Elmore & Stahl, 377 U.S. at 137, 84 S. Ct. at 1144; Missouri Pacific Railroad Co. v. Porter, 273 U.S. 341, 345, 47 S. Ct. 383, 384, 71 L. Ed. 672 (1927); Southern Express Co. v. Byers, 240 U.S. 612, 36 S. Ct. 410, 60 L. Ed. 825 (1916); Cudahy Packing Co. v. Munson Steamship Line, 22 F.2d 898 (2d Cir.1927), cert. denied 277 U.S. 586, 48 S. Ct. 433, 72 L. Ed. 1000 (1928). Therefore, when a question of the liability of a carrier falls outside statutory coverage, rather than leave the shipper without a remedy courts have turned to federal common law. First Pennsylvania, 731 F.2d at 1115-1118; cf. Strachman v. Palmer, 177 F.2d 427 (1st Cir.1949).
The principal source for federal common law is the policy indicated by the federal statutes themselves. A court looks at the policy underlying the legislation and fashions a remedy which will effectuate that policy. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456-457, 77 S. Ct. 912, 917-918, 1 L. Ed. 2d 972 (1957). The sources for a common law remedy in a carrier liability case, then, would be the statutes which cover the liability of carriers in similar situations. They are the expression of federal policy on which an appropriate remedy can be built. See Elmore & Stahl, 377 U.S. at 137, 142 n. 15, 84 S. Ct. at 1144, 1147 n. 15; Porter, 273 U.S. at 345, 47 S. Ct. at 384; Cudahy, 22 F.2d at 901. Thus even if the statutes do not apply to a deregulated service, a question of the enforceability of a released value liability limit in a contract for such service will nevertheless be determined from the general principles of released value rates doctrine found in the statutes and the cases construing them. First Pennsylvania, 731 F.2d at 1122 (released value rates liability principles applied *1113 to deregulated air freight).[2] We need not decide, therefore, the precise extent to which deregulation released Santa Fe from the Act. If its liability is not governed directly by the statutes it is governed by federal common law which derives from the statutes.
The impact of deregulation of TOFC/COFC services on carrier liability, then, is significantly less than Santa Fe would have us believe. Most importantly, Santa Fe has not become a law onto itself. It still holds itself out to the public as a provider of TOFC/COFC carrier services, and so is still a common carrier subject to the federal law of liability for common carriers. Co-Operative Shippers, Inc. v. Atchison, Topeka and Santa Fe Railway Co., 613 F. Supp. 788, 792-793, further proceeding 624 F. Supp. 797 (N.D.Ill.1985).[3] Further, the federal law for TOFC/COFC carrier liability is still fundamentally the law of interstate carrier liability in general. As this court noted above, and also in its first (February 17) memorandum, 49 U.S.C. § 10505(e) directs one to the Act's provisions for liability under receipts and bills of lading at 49 U.S.C. § 11707. That section in turn requires in essence that a carrier be liable for the actual value of lost or damaged property, § 11707(a)(1), unless the shipper has accepted a limited liability by agreeing to a released value rate, § 11707(c)(4). The latter section incorporates 49 U.S.C. § 10730, which allows a rail carrier to offer released value rates which limit liability, but only if the shipper has declared the released value in writing or a written agreement for the released value exists between shipper and carrier. The I.C.C. construes these provisions to mean that a TOFC/COFC carrier is not exempted from liability for actual loss or injury unless the shipper has elected released value rates, in which case the carrier is liable for the released value. 46 Fed.Reg. at 32257. This court therefore held in our first memorandum that the liability provisions of the Interstate Commerce Act still apply to TOFC/COFC services despite deregulation. Quasar, No. 83 C 4617, slip op. at 6-7 (N.D.Ill. Feb. 17, 1984). The other courts which have considered the question agree. American Trucking, 656 F.2d at 1124; Co-Operative, 613 F.Supp. at 793. In short, deregulation did not substantially change carrier liability.
The essential system has not changed and that system does not consider a carrier's gross negligence to void the liability limitation of a released value rate. This court therefore now sees no basis either as a matter of statutory construction or of federal common law for considering the degree of the carrier's negligence relevant to the case at bar. Our second (July 30) order granting Quasar's motion to compel was in error and must be reversed.
IV.
This court notes in passing, however, for the benefit of the parties and our own files, that deregulation may have made a small but significant change in the factors which affect the validity of a liability limitation. In the old regime, which apparently still applies outside deregulation, the burden of *1114 avoiding a released value rates liability limitation tended in practice to be on the shipper. Santa Fe, apparently as an alternative to its stand that no law applies to it, continues to cite these cases as controlling here. In the era of deregulation, however, courts are beginning to require that contracts be structured so that the released value rate applies only if a shipper affirmatively chooses it.
The standard practice for decades has been that a carrier could stipulate a liability, usually in terms of a figure per pound, and the shipper would be bound unless he affirmatively declared a greater value. American Railway Express Co. v. Daniel, 269 U.S. 40, 46 S. Ct. 15, 70 L. Ed. 154 (1925). In general, the courts applied the maxim that silence means consent. Leaving the space for value on the bill of lading blank was considered to be a declaration that the value did not exceed the amount stipulated by the carrier. Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U.S. 469, 33 S. Ct. 267, 57 L. Ed. 600 (1913); W.C. Smith, Inc. v. Yellow Freight Systems, Inc., 596 F. Supp. 515 (E.D. Pa. 1983). If the shipper accepted a bill of lading or receipt, he implicitly assented to the stipulated rate even if he didn't sign anything. American Railway Express Co. v. Lindenburg, 260 U.S. 584, 43 S. Ct. 206, 67 L. Ed. 414 (1923); see also Hopper Furs, Inc. v. Emery Air Freight Corp., 749 F.2d 1261 (8th Cir.1984) (carrier's error in recording declared value balanced by shipper's acceptance of bill of lading and carriage at released value rate). The few cases which allowed a shipper to escape a liability limitation involved situations where the bill of lading offered no space where the shipper could declare a higher value, Caspe v. Aaacon Auto Transport, Inc., 658 F.2d 613 (8th Cir.1981), or where the shipper never saw the bill of lading, Cordingley v. Allied Van Lines, Inc., 413 F. Supp. 1398 (D.Mont. 1976), aff'd 563 F.2d 960 (9th Cir.1977), or a receipt or bill of lading was never even issued. New York, New Haven & Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 73 S. Ct. 986, 97 L. Ed. 1500 (1953); Anton v. Greyhound Van Lines, Inc., 591 F.2d 103 (1st Cir.1978).
The courts could tolerate these seemingly harsh results because the rates were published and on file with the I.C.C. The generally applicable standard for validity of a released value agreement is laid out in this court's first (February 17, 1984) memorandum in this case. A shipper must be given a fair opportunity to choose between higher and lower liability. A fair opportunity means that the shipper had both reasonable notice of the liability limitation and the chance to make a deliberate and well-informed choice. Quasar, No. 83 C 4617, slip op. at 8 (N.D.Ill. Feb. 17, 1984), and cases cited there. The regulatory process itself, however, took care of most of these steps in the eyes of many courts. Regulation required filing and publication of tariffs. All persons can fairly be charged with notice of and knowledge of matters on public record. Therefore, a shipper was presumed to know the carrier's tariffs. Daniel, 269 U.S. at 42, 46 S. Ct. at 15-16; Kansas City Southern Railway Co. v. Carl, 227 U.S. 639, 652-653, 33 S. Ct. 391, 395, 57 L. Ed. 683 (1913). If the carrier stipulated the value and made the released value rate primary, the shipper should know that. If the shipper failed to act, presumably it was because he deliberately accepted the released value and the released value rate. Lindenburg, 260 U.S. at 591-592, 43 S. Ct. at 209; First Pennsylvania, 731 F.2d at 1117.
When the reason for the rule ceases, however, so should the rule. With deregulation, rates for TOFC/COFC services are no longer required to be either published or filed. A shipper therefore no longer can be charged with knowledge of the rate structure. A system which binds the shipper to limited liability unless he takes the first step, then, no longer seems appropriate.
At a minimum, a full value rate for a deregulated service must actually be available so the shipper can make a choice. Otherwise the liability limitation is unenforceable. 46 Fed.Reg. at 32257; Fruitco Corp. v. Consolidated Rail Corp., 118 *1115 Misc.2d 1090, 462 N.Y.S.2d 754 (Civ.Ct.N.Y. City 1983). Congress and the I.C.C. strongly suggest more. By statute, a released rate agreement for rail carriage must be in writing. 49 U.S.C. § 10730(c). The I.C.C. believes that released rates should apply only "at the election of the shipper as an alternative to otherwise applicable full liability rates." 46 Fed.Reg. at 32257. When the tariffs are no longer on record, released value rates can no longer be the automatic result of a standard contract. If the system is set up so that the released rate applies unless the shipper acts, shippers will find to their surprise that their recovery is hamstrung by a liability limitation. For the shipper on a deregulated service to have a fair opportunity to choose, the process of contracting for carriage itself must provide the notice and the opportunity for a deliberate and well-informed choice. Cf. First Pennsylvania, 731 F.2d at 1123 (shipper no longer on constructive notice of air freight tariff schedules after deregulation). Thus the court in Co-Operative found a liability limitation on a TOFC/COFC shipment unenforceable because the system of contracting was set up to produce released value rate shipments unless the shipper demanded full value. 613 F. Supp. at 793-794. For deregulated service full liability rates must be primary and released rates the secondary service shippers get only if they ask for it.
The absence of a gross negligence theory therefore may not be as damaging to Quasar's cause as it appears. Santa Fe appears to rely principally on the reference to its tariffs printed on the interchange receipt as the item which bound Quasar to a liability limitation. When the service was regulated, such a reference probably was enough. See North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229 (2d Cir.1978). In deregulation, however, validity appears to hinge on the place of the limitation in the entire process of contracting. The court awaits further evidence on that subject.
CONCLUSION
Defendants' motion to reconsider this court's ruling on plaintiff's motion to compel discovery is granted. The July 30, 1985 order compelling discovery is rescinded and plaintiff's motion to compel discovery is denied.
NOTES
[1] Two 10th Circuit cases which held that state law negligence actions were still an option, Reed v. Aaacon Auto Transport, Inc., 637 F.2d 1302 (10th Cir.1981), and Litvak Meat Co. v. Baker, 446 F.2d 329 (10th Cir.1971), both rest on a clause in the former 49 U.S.C. § 20(11), "nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law," which no longer appears in the Interstate Commerce Act as recodified in 1980.
[2] This court notes that the concept of drawing on the statutes to fashion a common law remedy, utilized here to show that in spite of deregulation Santa Fe is still under federal law, may apply to this case in another way. The Interstate Commerce liability provision, 49 U.S.C. § 11707, is apparently so worded as not to apply to goods shipped from a non-adjacent foreign country on a through bill of lading. This court's February 17, 1984 order in this case discussed, without deciding, the problems raised for purposes of statutory coverage when, as here, goods are shipped on a through foreign bill of lading but also a domestic interchange receipt. Even if the receipt does not bring this case within the Act, however, Quasar may still have a claim for its loss at federal common law.
[3] This case, which also involves a shipper's loss from a TOFC service in the period of deregulation, was decided by Judge Aspen of this district on July 3, 1985. This court's order on Quasar's motion to compel did not issue until July 30, 1985. Neither party in the case at bar has ever brought Co-Operative to our attention, not for purposes of the motion to compel nor for this motion to reconsider. This court notes that Santa Fe, defendant here, was also the defendant in Co-Operative.
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260 Ga. 450 (1990)
396 S.E.2d 218
DAVIS
v.
GAONA.
S90A1108.
Supreme Court of Georgia.
Decided September 27, 1990.
Reconsideration Denied October 18, 1990.
Carl V. Kirsch, for appellant.
Calabro, Vogel & Jennette, James R. Vogel, for appellee.
John Tye Ferguson, amicus curiae.
CLARKE, Chief Justice.
Appellant-plaintiff in an action which was referred to arbitration pursuant to Fulton Superior Court Local Rule 1000 filed a motion for injunctive relief and to have the rule declared unconstitutional. The trial court denied relief and this appeal is from that order. We affirm.
Rule 1000 provides that civil actions seeking primarily money damages up to $25,000 or in an unspecified amount will be referred to *451 compulsory but non-binding arbitration by a panel of three arbitrators randomly selected. Cases involving medical malpractice are excluded from arbitration. A party may petition the court to refer to arbitration a case which does not otherwise qualify. The court may refer any case to arbitration. The court may remove any case or issue within a case from arbitration. A party may file a demand for a de novo trial within 30 days after the award is posted. If this party does not substantially improve his position at trial, the court may tax the arbitration panel's fees against him. The rule defines substantial improvement as a reversal of the award or an increase or decrease of the award by 15% or more. The judge to whom the case is tried will not be informed of the award until after verdict or disposition unless all parties agree. If there is no timely demand for trial de novo, this shall be deemed a consent to the award, and after the expiration of 30 days an appropriate judgment, order, or dismissal may be entered.
On appeal the appellant cites eleven enumerations of error which can be reduced to the following arguments: 1) This court had no authority to adopt Rule 1000 because this court can only adopt Uniform Rules, not local rules; 2) Rule 1000 seeks to levy unauthorized court costs; 3) Rule 1000 is void because it denies access to the courts by implementing a scheme of access contrary to the CPA; 4) This court's order adopting Rule 1000 is void because it violates Art. I, Sec. II, Par. III and Art. III, Sec. VI, Par. IV (a) of the Georgia Constitution of 1983 (which deal with separation of powers and limitations on special legislation); 5) Rule 1000 violates the equal protection clauses of the state and federal constitutions; 6) Rule 1000 is contrary to the Georgia Arbitration Code; 7) Rule 1000 is void because it does not provide notice to litigants who want to have a trial de novo.
1. Appellant contends that Rule 1000 is void because it was adopted as a uniform rule rather than a local rule and was not properly adopted as a uniform rule. Appellant appears to argue that this court's order approving the local rule pursuant to Uniform Superior Court Rule 2.1 purported to adopt rather than to approve the rule. Appellant contends that since this court cannot adopt local rules, this court must have attempted to make a uniform rule which has no uniform application and is therefore void. This court's order of April 13, 1988, approving Rule 1000 clearly approves this as a local rule and allows its adoption as a permanent local rule as opposed to an experimental program. Appellant's argument has no merit.
Appellant notes that under OCGA §§ 15-1-5 and 9-11-83 local courts have the power to make local rules. These sections are now obsolete because, pursuant to the mandate of Art. VI, Sec. IX, Par. I of the Georgia Constitution of 1983, this court has adopted uniform rules which abolish all local rules except those approved by this court.
2. Appellant argues that Rule 1000 impermissibly gives the trial *452 court the authority to tax court costs against a party not substantially improving his position. The costs taxed are payment of the arbitrators' fees. Appellant contends that the rule conflicts with OCGA § 9-15-1, which provides that court costs be assessed against the party who dismisses, loses, or is cast in the action. The person who demands a trial de novo and does not improve his position is a loser within the scheme of the arbitration project. Therefore, the provision for taxing the costs of arbitration against that party does not constitute a conflict with OCGA § 9-15-1.
3. Appellant relies upon OCGA §§ 9-11-38; -39 and Art. I, Sec. I, Par. XI of the 1983 Georgia Constitution as authority for his argument that the arbitration project infringes the right to a jury trial which is inviolate and cannot be waived absent a stipulation of the parties. Art. I, Sec. I, Par. XI (a) of the constitution provides that the right to trial by jury is inviolate except that where no issuable defense is filed and where a jury is not demanded in writing by either party, the court shall render judgment. OCGA § 9-11-38 simply reiterates the mandate of the constitution that the right to trial by jury shall remain inviolate. OCGA § 9-11-39 (a), however, provides that "[t]he parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, may consent to trial by the court sitting without a jury." This has been interpreted to mean that a jury trial may only be waived by specific stipulation of the parties and no demand for a jury trial is necessary. See, e.g., Raintree Farms v. Stripping Center, 166 Ga. App. 848 (305 SE2d 660) (1983). Appellant relies upon the case of Raintree Farms v. Stripping Center, supra, for support of his argument that Rule 1000 violates the constitution and the Civil Practice Act. Raintree Farms does not apply to this case for several reasons.
In that case the Court of Appeals considered a local court rule which provided that a failure to demand a jury trial on or before 5:00 p. m. on the last business day before docket call constituted a waiver of the right to a jury trial. The Court of Appeals held that the local rule violated OCGA § 9-11-39. The court did not rule on the contention that the constitution as well as the CPA was violated, and the case did not involve a claim that OCGA § 9-11-38 was violated. Raintree Farms construed a local rule not at issue here. The case was decided prior to the enactment of the Uniform Rules and concerned a local rule not approved by this court. The most important reason that OCGA § 9-11-39 does not preclude the procedure set out in Rule 1000 is that the statute deals with the right to a jury trial as opposed to a bench trial absent a clear waiver. Rule 1000 deals with the requirement that a litigant not satisfied with an arbitration award demand a trial de novo.
In Tippins v. Winn-Dixie Atlanta, 192 Ga. App. 172 (384 SE2d *453 199) (1989), the Court of Appeals did construe Rule 1000, holding that the right to a jury trial was not abridged by Rule 1000. The Court of Appeals pointed out that the right to a jury trial as guaranteed by the constitution and OCGA § 9-11-38 is subject to certain limitations.
Rule 1000's provision that a trial de novo be available only upon demand after non-binding arbitration does not deny the right to a jury trial guaranteed by Art. I, Sec. I, Par. XI of the 1983 Georgia Constitution or § 9-11-38. In DeLamar v. Dollar, 128 Ga. 57, 65 (57 SE 85) (1907), this court in discussing constitutional conditions upon the right to trial by jury reiterated:
It was not necessary that there should have been a provision for a jury trial in the first instance; but to satisfy the requirement of the constitution there must be, at some stage of the case, a time when the party desiring a trial by jury might obtain the benefit of such trial by compliance with reasonable conditions. If a trial by jury can be obtained on appeal, the constitutional provision is satisfied. Davis v. Harper, 54 Ga. 183.
4. Art. VI, Sec. IX, Par. I of the Georgia Constitution of 1983 contains the mandate that this court with the advice and consent of the affected class of court adopt and publish uniform court rules to provide for the "speedy, efficient, and inexpensive resolution of disputes and prosecutions." In carrying out that mandate, this court is not in violation of the mandate of Art. I, Sec. II, Par. III of the Georgia Constitution of 1983 preserving the separation of powers of the three branches of government.
The arbitration project involves procedural rather than substantive law, and does not conflict with the power of the General Assembly to enact the laws of this state pursuant to Article III of the Georgia Constitution of 1983. This court approved Rule 1000 under Uniform Superior Court Rule 2.1 as part of its constitutional mandate under Art. VI, Sec. IX, Par. I. Therefore it does not violate the prohibition of Art. III, Sec. VI, Par. IV against local or special acts which conflict with the general law. Moreover, since Rule 1000 is not a statute, ordinance, or other legislative enactment, it cannot violate the prohibition of Art. III, Sec. VI, Par. IV against the enactment of local or special laws.
5. Appellant's arguments regarding equal protection lack merit. Since the right to a jury trial is not abridged and no person is denied due process by the provisions of Rule 1000, it creates no disparity in the treatment of various Fulton County litigants or between Fulton County litigants and litigants of other counties. Any difference in the *454 procedure provided for litigants in civil cases in which the amount prayed for is $25,000 or less and litigants in other civil cases is based on a permissible classification. Cf. Sellers v. Home Furnishing Co., 235 Ga. 831 (222 SE2d 34) (1976).
6. Appellant argues that Rule 1000 violates the provisions of the Georgia Arbitration Statute set out in the Civil Practice Act at § 9-9-1 et seq. in that Rule 1000 provides for cases to be decided by arbitration without stipulation of the parties. He ignores the fact that the arbitration provided by the CPA, a different procedure dealing with different circumstances, is not applicable here. The arbitration provided by OCGA § 9-9-1 et seq., is binding arbitration which is entered into pursuant to arbitration agreements between the parties.
7. Appellant contends that the rule is void because it requires only that the award be published to the parties. Appellant says this violates OCGA § 9-11-5 (b) which requires that after original service all subsequent pleadings be sent by mail. An arbitration award is not a pleading within the meaning of OCGA § 9-11-5 (b).
Appellant further complains that the award is filed with the administrator of the arbitration program rather than with the clerk of the court. Rule 1000 provides that if no demand for trial de novo is made within 30 days of the award any party may move for the entry of a consent judgment and dismissal with prejudice based upon the award. If this occurs, the judgment would be filed with the clerk of the court as would any other judgment.
Other contentions raised by appellant do not persuade us that Rule 1000 abridges the rights of any litigants or that the rule is in conflict with any federal or state constitutional provision or statute of this state. Indeed we find that Rule 1000 and the arbitration project which it governs comports with the mandate of Art. VI, Sec. IX, Par. I that this court adopt rules which will provide for the "speedy, efficient, and inexpensive resolution of disputes and prosecution."
Judgment affirmed. All the Justices concur, except Weltner, J., not participating.
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175 Ga. App. 123 (1985)
333 S.E.2d 6
ELLIS
v.
DEPARTMENT OF TRANSPORTATION.
69761.
Court of Appeals of Georgia.
Decided June 12, 1985.
*125 J. Wayne Moulton, for appellant.
Joseph E. Cheeley, Richard B. Chandler, Jr., for appellee.
McMURRAY, Presiding Judge.
In this condemnation case the parties stipulated the following pertinent facts: The condemnor, Department of Transportation, filed its condemnation petition and on March 9, 1982, acquired fee simple title to 0.046 acres of land in Gwinnett County. Additionally, the condemnor took a temporary construction easement for a period of three years. The land was owned by P. M. Properties, Inc. (The claim of P. M. Properties, Inc. was settled and it is no longer a party to this action.) Condemnee Alvin J. Ellis was in possession of the property pursuant to a lease, sublease and assignment. The lease documents provided for an initial eight-year term commencing June 1, 1974, and ending May 31, 1982. These documents further provided that the lessee may, at his option, extend the term of the lease for three periods of five years each provided that notice be given to the lessor by the lessee no later than 45 days prior to the expiration of the original term or the extension period.
The record reflects that more than 45 days before the expiration of the original term of the lease, but after the March 9, 1982, taking, condemnee gave notice to the lessor of his intention to exercise his option for the first five-year renewal period. Thereafter, following the expiration of the original lease term, the condemnor commenced construction.
It was condemnee's contention that his leasehold interest was and would be damaged by the taking during the renewal terms of the lease. Condemnee conceded that damages to the leasehold interest during the term of the original lease were de minimis because (1) construction did not commence until after the expiration (May 31, 1982) of the original lease and (2) the time period between the date of taking and the expiration of the original lease term was so short.
Based upon the foregoing facts, the trial court ruled that as a matter of law the condemnee could not recover damages to the leasehold interest after the date the original lease expired which date was May 31, 1982. This appeal followed. Held:
"`The correct measure of damages for the loss of use of leased *124 property is the diminution in the market value of the leasehold during the remainder of the unexpired term of the lease, less any rents to be paid by the lessee. Pause v. City of Atlanta, 98 Ga. 92 (26 SE 489, 58 ASR 290); Minsk v. Fulton County, 83 Ga. App. 520 (64 SE2d 336).' McGhee v. Floyd County, 95 Ga. App. 221 (2) (97 SE2d 529)." Peek v. Dept. of Transp., 139 Ga. App. 780, 781 (1) (229 SE2d 554). (Emphasis supplied.) Condemnee contends the lease has not expired because he exercised his option in a timely manner. Thus, condemnee asserts he should be compensated for damages to the leasehold interest during the renewal terms of the lease. We agree.
Our constitution provides that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." Georgia Constitution, Art. 1, Sec. 3, Par. 1 (a). "In Woodside v. City of Atlanta, 214 Ga. 75, 83 (103 SE2d 108), it is made clear that the taking or damaging with which the constitutional provision is concerned may be of any species of property. In the Woodside case the principle is pronounced: `The term "property" is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed.'" Bowers v. Fulton County, 221 Ga. 731, 737 (146 SE2d 884). Thus, "[a] tenant of premises, although he has no estate in the land, is the owner of its use for the term of his rent contract, and can recover damages for any injury to such use resulting from the construction of a duly authorized public improvement." Waters v. DeKalb County, 208 Ga. 741 (1) (69 SE2d 274). Moreover, "[a] valid option to renew a lease is in itself an interest in land such as will support a compensation award in an eminent domain proceeding. See State of Cal. ex rel. State Public Works Board v. Whitlow, 1966, 243 Cal. App. 2d 490, 52 Cal. Rptr. 336, 339-340; Canterbury Realty Co. v. Ives, 1966, 153 Conn. 377, 216 A2d 426, 430; Sholom, Inc. v. State Roads Comm'n, 1967, 246 Md. 688, 229 A2d 576, 580-582; Land Clearance for Redev. Corp. v. Doernhoefer, Mo. 1965, 389 S. W. 2d 780, 785-786." State Road Dept. v. Tampa Bay Theaters, 208 S2d 485, 487 (Fla. App. 1968). Accordingly, we hold that where, as here, "a renewal lease is entered into after a taking or damaging by eminent domain, but in pursuance of the terms of a lease antedating such event, the lessee is entitled to recover as though the original lease had, in the first instance, provided both terms as one continuous term." 2 Nichols, Law of Eminent Domain, § 5.06 [1] (3rd ed. 1983).
The trial court erred in determining that condemnee was not entitled to recover damages to the leasehold interest for the renewal terms of the lease.
Judgment reversed. Banke, C. J., and Benham, J., concur.
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333 S.E.2d 54 (1985)
Nancy Swaim COCKMAN
v.
Pamela A. WHITE.
No. 8418DC1315.
Court of Appeals of North Carolina.
August 20, 1985.
R. Horace Swiggett, Greensboro, for plaintiff-appellant.
Nichols, Caffrey, Hill, Evans & Murrelle by Richard L. Pinto, Greensboro, for defendant-appellee.
COZORT, Judge.
Plaintiff sued defendant, her insurance agent, to recover damages for defendant's alleged failure to provide collision insurance coverage on plaintiff's automobile, which was totally demolished in a collision with a train. After the jury had reached an eleven to one impasse, the trial court declared a mistrial, reconsidered defendant's motion for directed verdict based on plaintiff's failure to put on evidence of damages to the car, and granted defendant's motion. Plaintiff appeals that action, as well as the court's striking of testimony on the value of the auto prior to the crash *55 and its granting of defendant's motion for directed verdict on plaintiff's unfair trade practice claim under Chapter 75 of the General Statutes of North Carolina. We affirm.
Plaintiff purchased a 1981 Datsun 200SX for $9,120 in October of 1981. She had liability insurance with State Farm Insurance through defendant's agency and had collision coverage with a different agent. When it came time to renew her collision insurance, plaintiff called defendant to get her collision insurance through defendant so that her liability and collision coverage would be with the same agent. Defendant provided temporary collision coverage pending a final decision from the underwriter at State Farm. In a letter dated 13 October 1982, plaintiff was notified by an underwriter from State Farm that her collision insurance would be cancelled 29 October 1982 because of the number of motor vehicle violations and accidents accumulated by plaintiff and her daughter, who was also covered under the collision policy. On about 15 November 1982, plaintiff called defendant to discuss the points which had been assigned to her because of the number of violations and accidents. She told defendant her daughter had moved from her home and had her own coverage and that her points should be removed from plaintiff's policy. Defendant said words to the effect that she "would take care of it." Plaintiff contends the "taking care of it" meant providing collision insurance, though she did not ask defendant specifically to obtain collision coverage for her. Defendant contends that all plaintiff asked her to do was to remove plaintiff's daughter's points from her policy and that only the removal of those points from the policy was what she said she would take care of. She did not attempt to get collision insurance for plaintiff, and from 29 October 1982, plaintiff had no collision insurance. On 11 December 1982, plaintiff's car was demolished when a friend of hers drove the car into a train. What was left of the car was repossessed and sold for $1,100 by the bank which had financed its purchase.
Plaintiff sued defendant to recover damages "of at least $8000." Although plaintiff sued under four causes of action, the only two at issue on appeal are her claims that the defendant's failure to provide coverage constituted negligence and that defendant's statements to plaintiff constituted an unfair trade practice in violation of G.S. 75-1.1.
We first address the plaintiff's contention that it was error for the trial court to grant defendant's motion for directed verdict on the unfair trade practice claim. Plaintiff claims that defendant's statements misled her into believing she had collision insurance. She argues that it is sufficient to show that defendant's words had a capacity to mislead or create a likelihood of deception, with no requirement to show bad faith by the defendant. While plaintiff's analysis of the legal standard is correct, see Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), her conclusion that defendant's statement is a deceptive practice under Chapter 75 is misplaced. The evidence shows only a misunderstanding between plaintiff and defendant. Plaintiff never specifically asked defendant during their phone conversation to obtain collision insurance for her. She testified that by discussing her daughter's points and their removal from her policy, she assumed defendant was going to attempt to get collision insurance for her. Defendant testified that plaintiff's call related to removing plaintiff's daughter's points from the policy, that she told plaintiff she would take care of that, and that she sent a memo to State Farm to take the daughter off the policy. We do not believe the misunderstanding between plaintiff and defendant constituted a deceptive representation, and we hold that plaintiff's claim under Chapter 75 was subject to directed verdict for defendant.
We next consider plaintiff's contention that the trial court erred in striking testimony about the value of the Datsun from an employee of the Northwestern Bank. Plaintiff called as a witness Bob Reed, an employee of the bank which financed the *56 car in question when it was purchased by plaintiff in October of 1981. Plaintiff attempted to solicit his opinion on the value of plaintiff's car in December of 1982. He testified that his best estimate of the value of the car would be "[b]etween $7,000 and $8,000.... Probably closer to seven $7,300 or $7,400." On cross-examination, he admitted that he had never seen plaintiff's automobile, did not know what kind of shape it was in, and that his estimate of value was what the average car of the same make and model as plaintiff's would have been worth in December of 1982. In response to a question about plaintiff's car in particular, he replied, "Not having seen the automobile, no sir, I can't, you know, give you an opinion on that car." The trial court then granted defendant's motion to strike Reed's testimony about the value of plaintiff's automobile.
"To introduce evidence on valuation, a proper foundation must be laid. First, it must be shown `that the witness is familiar with the thing on which ... [he] professes to put a value and [second] that he has such knowledge and experience as to enable him intelligently to place a value on it.' [Citation omitted.]" Broughton v. Broughton, 58 N.C.App. 778, 784, 294 S.E.2d 772, 777, disc. review denied, 307 N.C. 269, 299 S.E.2d 214 (1982). Plaintiff testified that she did not know what the car was worth. She did not describe its condition in December of 1982. She did testify that it had been involved in one accident before the collision with the train and that her car had approximately 25,000 miles on it. Plaintiff offered no other evidence on the value of the car or of its condition. We hold the trial court correctly struck the testimony of Reed. He could not testify from personal knowledge, and the plaintiff failed to present any foundation from which he could have offered an opinion of the auto's value.
Lastly, we consider whether the court properly granted defendant's motion for directed verdict on the negligence claim, predicated upon plaintiff's inability to prove damages due to her failure to offer any evidence of the value of the car immediately prior to its destruction. Either evidence of the difference in market value before and after the injury or evidence of the cost of repairs would have been sufficient proof of damages. See, e.g., Light Co. v. Paul, 261 N.C. 710, 136 S.E.2d 103 (1964). Plaintiff produced no competent evidence of market value before and no evidence of cost of repairs. Thus there was no evidence from which a finder of fact could have determined any measure of damages. We hold the granting of a directed verdict was proper.
Affirmed.
WELLS and JOHNSON, JJ., concur.
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260 Ga. 472 (1990)
396 S.E.2d 901
GREENE
v.
THE STATE.
S90A1306.
Supreme Court of Georgia.
Decided October 19, 1990.
Floyd H. Wardlow, Jr., for appellant.
David E. Perry, District Attorney, Ronnie A. Wheeler, A. Douglas Newsome, Assistant District Attorneys, Michael J. Bowers, Attorney *474 General, Robert D. McCullers, for appellee.
SMITH, Presiding Justice.
The appellant, Frederick Gerard Greene, was convicted of the malice murder of Jessie Lee Stevens.[1] Mr. Greene was sentenced to life imprisonment and now appeals on the grounds that the State used its peremptory strikes to systematically exclude black jurors in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). We affirm.
In the early morning hours of December 25, 1989 the appellant approached the victim and demanded payment for some crack cocaine that the appellant had allegedly provided to the victim. After a *473 short argument, the victim threw his hands in the air and said, "Do what you gotta do." The appellant then produced a .32 caliber pistol and fired at the victim. Although shot in the chest, the victim turned and attempted to flee to a nearby car. The appellant then walked up behind the victim and shot him in the back. The medical examiner testified that the victim died as a result of internal bleeding caused by the gunshot wound to the chest.
Five witnesses testified that they saw the appellant shoot the victim. The appellant was arrested and the police recovered the appellant's pistol. Ballistic tests showed that the bullets retrieved from the victim's body matched bullets fired from the appellant's gun.
The appellant was indicted on one count of malice murder and one count of felony murder. Trial was set for May 16, 1990. During jury selection the State used five of its peremptory strikes to excuse black individuals. No other peremptory strikes were used by the State nor did the appellant object to the State's use of its strikes prior to the jury being sworn.
1. The appellant's sole enumeration of error is that the State's use of its peremptory strikes establishes a prima facie discriminatory intent in violation of Batson, supra. However, the appellant's claim is not timely made. In State v. Sparks, 257 Ga. 97 (355 SE2d 658) (1987), we held that, "any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn." Id. at 98. The purpose of this rule is to allow the trial court to determine if there has been a violation of the defendant's constitutional rights in the jury selection process and, if so, to remedy that violation before the jurors are sworn. This procedure helps insure fairness and conserves judicial resources. Because the appellant failed to raise this issue prior to the time the jurors were sworn, he did not properly preserve it for our review.
2. After reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to have authorized a rational trier of fact to conclude that the appellant was guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Clarke, C. J., Bell, Hunt, Benham, Fletcher, JJ., and Judge Bryant Culpepper concur; Weltner, J., not participating.
NOTES
[1] The crime was committed December 25, 1989. The appellant was indicted on January 8, 1990. He was convicted of malice murder on May 16, 1990, and was sentenced to life imprisonment on May 24, 1990. The appellant filed an application for review of sentence on June 16, 1990, and Notice of Appeal on June 20, 1990. The transcript of evidence was filed on June 29, 1990. The record was docketed in this Court on July 6, 1990. The case was argued on September 19, 1990.
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708 N.W.2d 749 (2005)
268 Mich. App. 588
Philip ROBERTSON and Sharon Robertson, Plaintiffs-Appellees/Cross-Appellants,
v.
BLUE WATER OIL COMPANY, Defendant-Appellant/Cross-Appellee.
Docket No. 254052.
Court of Appeals of Michigan.
Submitted October 11, 2005, at Lansing.
Decided November 8, 2005, at 9:00 a.m.
Released for Publication January 23, 2006.
*751 Marshall Lasser, P.C. (by Marshall Lasser), Southfield, for Philip and Sharon Robertson.
Moffett & Dillon, P.C. (by Jerry A. Lascoe), Birmingham, for Blue Water Oil Company.
Before: KELLY, P.J., and METER and DAVIS, JJ.
DAVIS, J.
Defendant appeals as of right the denials of its motions for summary disposition, for directed verdict, and for judgment notwithstanding the verdict. Plaintiffs cross-appeal the denials of their motion for a new trial or additur and their motion in limine. This case arose when plaintiff[1] slipped and fell on an ice-covered parking lot at defendant's gas station as he walked from the pump where he had fueled his truck to the station's convenience store. We affirm in part, reverse in part, and remand.
The circumstances surrounding this case involve an unusually severe and uniform ice storm that covered the entire area surrounding defendant's station. The sole employee on duty began receiving complaints from customers, including several truck drivers, about the "extremely icy" conditions in the parking lot at approximately 1:00 a.m. The lot was also described as "a disaster," "a mess," and "a sheet of ice." At approximately 2:00 a.m., the employee called the station manager at home and notified him that someone needed to salt the lot "before there was an accident." The station manager told her that a contractor would deal with the situation, and he went back to sleep. At 4:30 a.m., the employee called the contractor personally, but the contractor did not arrive until after plaintiff's accident and was not responsible for salting the truck service area. A police officer advised the employee at about 2:00 a.m. that the icy conditions needed to be dealt with and testified at trial that there had been freezing rain in the area between 1:00 a.m. and at least 5:40 a.m. The employee telephoned 911 when another truck driver came into the station's store to report plaintiff's accident. The station manager arrived at approximately 5:45 a.m., at which time he saw plaintiff being attended by medical personnel. He testified that he could not differentiate between ice and wet pavement at the time, and, by 7:00 a.m., he had received reports of a car and a truck sliding into protective posts. Defendant's vice president of operations arrived at approximately 6:30 a.m. and salted the truck service area personally at that time.
Plaintiff was employed as a truck driver and required by his employer to fuel his truck at the beginning of the day. In furtherance of that requirement, plaintiff was a regular customer of defendant almost every weekday. Plaintiff generally paid at the pump and then purchased a cup of coffee in the station's convenience store. On the day of the accident, plaintiff was aware that his driveway and defendant's parking lot were icy and that the roads had been salted. Before setting out, plaintiff's inspection of the windshield washer fluid in the truck caused him to *752 believe that he had enough. Later, however, spray from passing cars exhausted the fluid in the reservoir by the time he reached defendant's station. Plaintiff paid at the pump as usual and intended to purchase coffee and washer fluid from the convenience store, but slipped on the ice, fell, and sustained injuries.
There is no serious dispute that the parking lot was openly and obviously icy. Thus, plaintiff's case rested on the existence of "special aspects" taking it out of the ordinary application of the open and obvious danger doctrine. Plaintiff argued that the conditions were effectively unavoidable. Defendant argued that the conditions were avoidable because plaintiff could have gone elsewhere or refrained from purchasing washer fluid. The trial court and the jury both found the conditions effectively unavoidable, although the jury found plaintiff 30 percent at fault for his own injuries. The jury verdict awarded plaintiff $260,000 in noneconomic damages and $86,000 in economic damages, and it awarded Sharon Robertson $17,000 in noneconomic damages.
We first address defendant's argument that the trial court erred in denying its motions for summary disposition, directed verdict, and judgment notwithstanding the verdict. We review de novo these motions and view the evidence in the light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 118-120, 597 N.W.2d 817 (1999); Morinelli v. Provident Life and Accident Ins. Co., 242 Mich.App. 255, 260-261, 617 N.W.2d 777 (2000); Smith v. Jones, 246 Mich.App. 270, 273-274, 632 N.W.2d 509 (2001). Defendant argues that the trial court erred in finding that the "special aspect" of unavoidability differentiated this case from the typical open and obvious danger case. We disagree.
Because the icy conditions here were open and obvious, defendant would have no liability in the absence of "special aspects" that "make a risk of harm unreasonable nonetheless," irrespective of the specific kind of negligence alleged. Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich.App. 490, 498, 595 N.W.2d 152 (1999), citing Bertrand v. Alan Ford, Inc., 449 Mich. 606, 611, 537 N.W.2d 185 (1995). "Special aspects" exist if the condition "is effectively unavoidable" or constitutes "an unreasonably high risk of severe harm." Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 518, 629 N.W.2d 384 (2001). However, the risk must be more than merely imaginable or premised on a plaintiff's own idiosyncrasies. Id., at 519, n. 2, 629 N.W.2d 384. An open and obvious accumulation of snow and ice, by itself, does not feature any "special aspects." Mann v. Shusteric Enterprises, Inc., 470 Mich. 320, 332-333, 683 N.W.2d 573 (2004). Plaintiff has not cross-appealed the trial court's conclusion that there was no unreasonably high risk of harm, so we limit our analysis to whether the condition was effectively unavoidable.
Defendant argues that the condition was effectively avoidable because plaintiff could have gone to a different service station to make his purchases of fuel, coffee, and windshield washer fluid. However, one of the characteristics of the icy condition is that it was brought about by an unusually severe and uniform ice storm covering the entire area. Plaintiff patronized defendant's station almost every weekday pursuant to his employer's directions to fuel his truck first thing in the morning, and he intended to purchase wiper fluid because he was out of fluid and the weather was bad. The record contains no evidence that there existed any available alternatives. Even if there were, the scope of the inquiry is limited to "the *753 objective nature of the condition of the premises at issue." Lugo, supra at 523-524, 629 N.W.2d 384. See also Bragan ex rel Bragan v. Symanzik, 263 Mich.App. 324, 331-332, 687 N.W.2d 881 (2004). Therefore, the only inquiry is whether the condition was effectively unavoidable on the premises. Here, there was clearly no alternative, ice-free path from the gasoline pumps to the service station, a fact of which defendant had been made aware several hours previously. The ice was effectively unavoidable.
Defendant argues that the ice was avoidable because plaintiff was not "effectively trapped." Joyce v. Rubin, 249 Mich.App. 231, 242, 642 N.W.2d 360 (2002). However, reliance on Joyce is misplaced for a number of reasons. Although we discussed the possibility that the plaintiff in Joyce could have gone to the premises on a different day, our holding was based on the plaintiff's own testimony that she was aware and, indeed, had made use, of an available alternative route. Id. at 242-243, 642 N.W.2d 360. In any event, a reasonable trier of fact could rationally find that plaintiff was "effectively trapped" because it would have been sufficiently unsafe, given the weather conditions, to drive away from the premises without windshield washer fluid.
Finally, and more significantly, plaintiff was a paying customer who was on defendant's premises for defendant's commercial purposes, and thus he was an invitee of defendant. See Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-598, 603-604, 614 N.W.2d 88 (2000). As our Supreme Court noted, "invitee status necessarily turns on the existence of an `invitation.'" Id. at 597-598, 614 N.W.2d 88. Defendant's contention that plaintiff should have gone elsewhere is simply inconsistent with defendant's purpose in operating its gas station. The logical consequence of defendant's argument would be the irrational conclusion that a business owner who invites customers onto its premises would never have any liability to those customers for hazardous conditions as long as the customers even technically had the option of declining the invitation. Although we did not discuss the issue at the time, it is clear in retrospect that the plaintiff in Joyce, a former live-in caregiver who was at the time merely removing her personal belongings from the defendant's private residence, was a licensee to whom a lesser duty was owed. See Joyce, supra at 233, 642 N.W.2d 360; Stitt, supra at 596, 614 N.W.2d 88.
Even if the record showed that plaintiff was aware of a realistic, safe alternative location to purchase his fuel, coffee, and windshield washer fluid, where defendant has invited the public, and by extension plaintiff, onto its premises for commercial purposes, we decline to absolve defendant of its duty of care on that basis. To do so would be disingenuous. Therefore, we conclude that the trial court appropriately denied defendant's motions.
We then turn to plaintiff's cross-appeal. We first address plaintiff's allegation that the trial court erred in denying his motion for additur or a new trial on the asserted ground that the jury's award of economic damages was irrational and unsupported by the evidence. We agree.
We review a denial of a motion for additur or a new trial for an abuse of discretion. Hill v. Sacka, 256 Mich.App 443, 460, 666 N.W.2d 282 (2003). When reviewing for additur, the appropriate inquiry is whether the evidence supports the jury's award. Setterington v. Pontiac Gen. Hosp., 223 Mich.App. 594, 608, 568 N.W.2d 93 (1997). We will not overturn a verdict if there is an interpretation of the evidence that provides a logical explanation for the jury's findings. Bean v. Directions *754 Unlimited, Inc., 462 Mich. 24, 31, 609 N.W.2d 567 (2000).
The trial court ruled as a matter of law that plaintiff's reasonable and necessary medical expenses were $120,256.07, so the parties did not present any evidence to the jury about medical expenses. However, plaintiff presented evidence of lost wages and benefits, whereas defendant presented evidence that plaintiff was disabled because of unrelated medical conditions. The trial court instructed the jury to consider the amount of reasonable and necessary medical care, treatment, and services, as well as loss of earning capacity. However, the jury returned a verdict of only $86,000 for economic loss. We are unable to deduce any logical reason for this other than jury confusion, because this sum closely resembles the amount plaintiff claimed to have lost in wages and benefits, implying that the jury ignored the established sum of medical expenses. The evidence does not support the jury's award. We are loath to engage in fact-finding here, so we vacate that portion of the jury award relating to economic damages and remand for a trial limited to that issue.
Plaintiff also argues that the trial court erred in refusing to grant additur or a new trial regarding Sharon Robertson's award of $17,000 for noneconomic loss. We disagree. Plaintiff merely presents a list of factors that were given to and considered by the jury. The evidence rationally supports the award.
In light of our decision to vacate the jury's award of economic loss and remand for a new trial on that issue, we see no need to address plaintiff's remaining issues. We do not retain jurisdiction.
METER, J., concurred.
KELLY, P.J. (dissenting).
I respectfully dissent. I would conclude that the trial court erred in denying defendant's motions for summary disposition, directed verdict, and judgment notwithstanding the verdict because the icy condition of the premises was not "effectively unavoidable." Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 518, 629 N.W.2d 384 (2001). Accordingly, I would reverse.
I. Applicable Law
"Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Mann v. Shusteric Enterprises, Inc., 470 Mich. 320, 328, 683 N.W.2d 573 (2004). This duty does not encompass a duty to protect an invitee from known or "open and obvious" dangers unless the premises possessor should anticipate the harm despite the invitee's knowledge of the condition. Lugo, supra at 516, 629 N.W.2d 384. The invitor has a duty to take reasonable precautions to protect invitees from an open and obvious danger only "if special aspects of a condition make even an open and obvious risk unreasonably dangerous...." Id. at 517, 629 N.W.2d 384.
This Court has repeatedly recognized that the risks of falling on snow or ice are open and obvious. Corey v. Davenport College of Business (On Remand), 251 Mich.App. 1, 5, 649 N.W.2d 392 (2002); Joyce v. Rubin, 249 Mich.App. 231, 239-240, 642 N.W.2d 360 (2002). Thus, defendant did not have a duty to protect plaintiff from the dangers associated with the ice-covered lot unless there were special aspects of the condition. Special aspects may impose a duty to warn or protect against even an open and obvious condition when evidence creates a genuine issue of material fact whether the condition is "effectively unavoidable" or when special aspects *755 of the condition create "an unreasonably high risk of severe harm." Lugo, supra at 518, 629 N.W.2d 384. "[O]nly those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine." Id. at 519, 629 N.W.2d 384.
We apply an objective analysis to determine whether evidence of special aspects exists. Our Supreme Court explained in Mann, supra at 328-329, 683 N.W.2d 573:
To determine whether a condition is "open and obvious," or whether there are "special aspects" that render even an "open and obvious" condition "unreasonably dangerous," the fact-finder must utilize an objective standard, i.e., a reasonably prudent person standard. That is, in a premises liability action, the fact-finder must consider the "condition of the premises," not the condition of the plaintiff. [Citations omitted.]
Generally, a special aspect is one that is unusual in character, location, or surrounding conditions. See Bertrand v. Alan Ford, Inc., 449 Mich. 606, 614-617, 537 N.W.2d 185 (1995). When considering whether a condition has a special aspect, "it is important to maintain the proper perspective, which is to consider the risk posed by the condition a priori, that is, before the incident involved in a particular case." Lugo, supra at 518 n. 2, 629 N.W.2d 384. An open and obvious accumulation of snow and ice, by itself, does not feature any special aspects. See Mann, supra at 332-333, 683 N.W.2d 573.
II. Analysis
As noted by the majority, there is no serious dispute that the parking lot was openly and obviously icy. Yet the majority concludes that the conditions were "effectively unavoidable." I disagree.
Plaintiff erroneously analogizes his fall on the ice with the Lugo decision's example of a special aspect that involved "a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water." Id. at 518, 629 N.W.2d 384. In the Lugo example, the potential plaintiff was required to confront an unexpected risk. In other words, the plaintiff was already in the fictitious defendant's building and had no alternative but to walk through the water in order to have access to the exit. This example in Lugo differs markedly from the facts of this case.
Here, plaintiff was not required to confront an unexpected risk, nor was he "effectively trapped." Plaintiff could have gone to a different service station to make his purchases of fuel, coffee, and windshield washer fluid. Although the majority contends that there was no evidence that any available alternatives existed, the record reveals otherwise. Plaintiff testified that he was aware of other 24-hour service stations around the interstate, some of which were truck stops. Nothing prevented plaintiff from shopping at any of these other stations. Nor was there anything about defendant's premises that forced him to cross the icy premises to reach defendant's store. Plaintiff's desire or need to purchase coffee and washer fluid, compelling as it may have been in plaintiff's opinion, does not affect the legal duties defendant owed to plaintiff. To conclude otherwise impermissibly shifts the focus from an examination of the premises to an examination of the personal circumstances of plaintiff. Plaintiff admitted he was aware of the icy conditions and chose to traverse the area. Under these circumstances, the icy condition of the *756 parking lot was not "effectively unavoidable."
Because plaintiff did not establish a special aspect of the icy lot sufficient to remove it from the application of the open and obvious doctrine, I would reverse.
NOTES
[1] Sharon Robertson's claim was derivative for loss of consortium. For clarity, we will use the singular "plaintiff" to refer to Phillip Robertson.
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https://www.courtlistener.com/api/rest/v3/opinions/1314244/
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288 Wis.2d 414 (2005)
2005 WI App 236
708 N.W.2d 43
STATE of Wisconsin, Plaintiff-Respondent,
v.
Sheldon C. STANK, Defendant-Appellant.[]
No. 2004AP1162-CR.
Court of Appeals of Wisconsin.
Submitted on briefs September 14, 2005.
Decided October 26, 2005.
On behalf of the defendant-appellant, the cause was submitted on the brief of Dennis P. Coffey of Mawicke & Goisman, S.C. of Milwaukee.
*419 On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
Before Brown, Nettesheim and Anderson, JJ.
*418 ¶ 1. BROWN, J.
Sheldon C. Stank appeals from judgments of conviction and an order denying his motion for postconviction relief. He raises a variety of contentions. He first claims that the physical evidence seized during a search warrant should have been suppressed because the witness who testified against him at the warrant application hearing was biased against him and possessed information too stale to support probable cause. Stank also claims that the court plainly erred by allowing the State to present bad character evidence in the form of weapons and publications. Finally, he states that the trial evidence did not support two elements of the count charging him with possession with intent to deliver Oxycontin while armed. He insists that no evidence exists to support such an intent to distribute the Oxycontin and that the forensic scientist's failure to test both samples of suspected Oxycontin made it impossible for the jury to determine the identity of the drug recovered. We disagree with all of these contentions and affirm. The court issuing the warrant found the witness credible and that his knowledge of ongoing large-scale drug trafficking supported a present finding of probable cause. Moreover, the weapons and reading material were highly relevant for reasons other than casting Stank in a bad light, such that any error in admitting the evidence is not obvious. Finally, we determine that the record supports the possession with intent to deliver charge. The jury had enough evidence to determine the identity of the Oxycontin *420 from two experts' use of the Physician's Desk Reference as a presumptive, pharmaceutical identification, subsequent confirmatory testing of a pill in one of the samples, and other circumstantial evidence. We also find ample circumstantial evidence of intent to deliver the Oxycontin.
¶ 2. John Oehler and Stank met eleven or twelve years ago, and the two men became personal friends roughly four years ago. Oehler would see Stank on a weekly basis. In addition to being Oehler's friend, Stank also became a regular supplier of marijuana for Oehler.[1] Oehler kept a ledger of his weekly purchases, which recorded transactions spanning from January to November of 2001. Often, Oehler would make his purchases at Stank's residence.
¶ 3. On November 14, the Milwaukee Police Department received an anonymous complaint. The complaint implicated Stank in possible drug trafficking, so an officer went to Stank's house to follow up. When nobody answered the door, the police left and apparently did not attempt to investigate further.
¶ 4. Some time in the fall of 2001, Stank invited Oehler to help him with a roofing job in Racine county, and Oehler accepted. The two men eventually had a falling out because of a dispute over whether Stank had fully paid Oehler for his assistance. Oehler began leaving numerous voice mail messages for Stank, some of them threatening.
¶ 5. The bad blood between the two men led to two police complaints against Oehler. First, Stank called the Milwaukee Police Department and reported a *421 burglary of his home. This call prompted a detective to go out to Fond du Lac to question Oehler, which further angered Oehler. The second complaint, which the department received on December 14, regarded the harassing phone calls. This complaint ultimately led to Oehler's arrest later that day for unlawful use of a telephone.
¶ 6. Following the arrest, Oehler spoke with Detective Heck. Oehler brought up at that meeting the subject of Stank's drug trafficking. Detective Heck advised Oehler to contact Detective Glidewell on the department's vice squad about the matter and gave him a phone number to call. On January 6, Oehler did call the detective, and the two arranged to meet in person the following day. At that meeting, Oehler told Detective Glidewell about Stank's illicit activities and showed the detective his ledger of purchases. The following day, Detective Glidewell sought a search warrant and brought Oehler to court to testify about his knowledge of Stank's illegal activity.
¶ 7. At the warrant application proceeding, Oehler testified as follows: (1) he had been buying marijuana from Stank for ten to eleven years; (2) he had been to Stank's residence over five hundred times and purchased approximately $50 of marijuana from Stank on a weekly basis; (3) Stank kept the marijuana in the freezer compartment of a kitchen refrigerator and in an old garage freezer bound shut with bungie cords; (4) every time he went to the residence, he would see the same group of people there to buy drugs; (5) he had seen a firearm Stank kept at the house; and (6) he was upset with Stank over the payment dispute and for falsely accusing him of stealing his drugs and reporting him for the burglary and harassing phone calls. His anger prompted him to contact Detective Glidewell to report *422 the drug activity. He admitted that the State had granted him use immunity in return for his testimony at the warrant application hearing.
¶ 8. Detective Glidewell also testified. He verified that he had seen Oehler's ledger of purchases and further mentioned the November 14 anonymous complaint he received. Additionally, he testified that in his experience, someone trafficking in controlled substances like marijuana for at least four-and-one-half to five years does not suddenly shut down operations.
¶ 9. The court granted the State's request for a warrant, and several members of the department's vice squad executed the warrant. The search turned up several drugs, weapons, and drug paraphernalia, including approximately three pounds of marijuana, Oxycontin, two marijuana pipes, grow lights, a scale, and eighteen firearms. Along with the guns, the police recovered ammunition, a flash suppressor for a gun, and a bulletproof vest. They also found several books on munitions. The titles of these books included, among others, (1) The Department of the Army Field Manual, Explosives and Demolitions; (2) A Full Auto Modification Manual, (3) Home Workshop Silencers; (4) The Anarchist's Black Book of Improvised Munitions; (5) Secret to Component High Explosive Mixtures and Improvised Shape Charges, Semi-Auto MAC-10 Modification Manual; and (6) How to Make Disposable Silencers, Complete Guide. The search also uncovered a High Times magazine.
¶ 10. Detective Glidewell uncovered the Oxycontin. While searching the upstairs, which Stank used as a bedroom, Detective Glidewell eventually noticed a black garbage can at the top of the stairs. When he looked inside the can, instead of seeing refuse, he found a paper grocery bag. He opened the bag to ascertain its *423 contents and found some freezer Ziplock bags of different sizes containing marijuana. It also contained a loaded pistol and an unmarked prescription-style bottle of pills. The bottle contained thirty-seven pills, all of which were green, white, or yellow and had "OC" stamped on one side. The other side of each contained a number. The six green pills contained the number eighty, the twenty-nine yellow ones were marked with the number forty, and the two white pills had the number ten. All of them had a coating and an absence of scoring. Detective Glidewell testified that he identified these pills as Oxycontin pills of different milligrams.
¶ 11. After he discovered the bottle of Oxycontin, Detective Glidewell searched Stank's bedroom closet. There he found two marijuana pipes, an SKS rifle, a Winchester rifle, a Mac-11 handgun, and another bag with pills in the general vicinity of a yellow envelope containing seven hundred-dollar bills. The bag contained twenty green pills identical in appearance to the green pills in the prescription bottle.
¶ 12. At some point during the execution of the search warrant, Stank arrived at the residence. Detective Glidewell searched him and recovered a bag of marijuana. The detective then placed Stank under arrest.
¶ 13. Following the search, Detective Glidewell sent the suspected marijuana and Oxycontin evidence to Detective Davila for testing and inventory. The former tested positive for THC. Detective Davila did not have the equipment necessary to test pills, but she identified both samples as Oxycontin based on her comparison of the pills to the Physician's Desk Reference, which contains pictures and descriptions of different drugs.
*424 ¶ 14. The pills were then sent to the state crime laboratory for testing. The forensic scientist compared the twenty green pills from the closet to the Physician's Desk Reference. Based on the coatings, coloring, shape, and characteristic markings on the pills, she identified them as Oxycodone of the Oxycontin brand name. She also crushed one of the pills and subjected it to two scientific tests. Both tests confirmed her visual identification. The forensic scientist also examined the pills from the bottle recovered from the garbage can. She compared the green pills to the other twenty green pills and concluded they were the same. She did not, however, conduct scientific tests on the pills from the garbage can.
¶ 15. On January 11, 2002, the State charged Stank with possession with intent to deliver more than 500 but not more than 2500 grams of the controlled substance tetrahydrocannabinols (marijuana), contrary to WIS. STAT. §§ 961.41(1m)(h)2., 961.01(14), and 961.14(4)(t) (2001-02)[2]. The criminal complaint also charged Stank with possession with the intent to deliver the controlled substance Oxycodone, a schedule II narcotic, a violation of WIS. STAT. §§ 961.16(2)(a)11. and 961.41(1m)(a). The State filed an information on January 22 with the same charges.
¶ 16. On March 18, Stank moved to suppress the fruits of the search on the basis that the information on which the warrant was predicated was stale and unreliable. The parties appeared at a motion hearing on May 28. Stank requested an adjournment, however, because he had not been able to procure Oehler as a witness, *425 and Stank believed Oehler's testimony was essential to support his claim that the warrant-issuing judge was not fully and accurately apprised of the relevant facts and the relationship between Stank and Oehler. The court denied the motion on June 7 and scheduled a trial date.
¶ 17. Prior to trial, the parties attempted to negotiate an acceptable plea agreement. Stank, however, did not accept the plea offer. As a result, the State amended its original information to include two new counts. Count three charged Stank with failure to pay the controlled substance tax on his marijuana, in violation of WIS. STAT. §§ 139.87(2), 139.88(1), 139.89, 139.95(2), 961.01(14), and 961.14(4)(t). Count four was for keeping a drug house (manufacturing, keeping or delivering controlled substances) while armed, contrary to WIS. STAT. §§ 961.42(1) and 939.63. The amended information also added "while armed" enhancers to counts one and two.
¶ 18. Voir dire commenced on October 9. During the prosecutor's questioning of the prospective jurors, he asked:
Along with controlled substances generating strong feelings in some people, guns also generate strong feelings in all sorts of people. There [is] literally going to be a shopping cart full of guns in this case. 18 different handguns, rifles and shotguns were seized at the defendant's home. Does anybody have such a strong view of guns that they won't be able to be fair in this case?
No jurors raised their hands. Although one juror asked whether the guns were legal and expressed the view that anyone with a gun should have to have a permit, *426 the court ultimately dismissed this juror for cause. The prosecutor also brought up the subject of the books the police uncovered:
You may hear testimony about some of the books that were recovered from the defendant's house. They include how to make . . . disposable silencers, The Anarchist's Black Book of Improved Munitions, The Improvised Munitions Handbook. Things like that.
Anybody can have whatever books they want, of course. I'm just trying to find out whether or not somebody having those kinds of books or hearing about titles like that is going to cause a visceral reaction in anybody, prevent somebody from being fair.
One juror gave an affirmative answer. This juror also was dismissed for cause and was not part of the empanelled jury.
¶ 19. The trial began later that day. The State presented the testimony of Oehler first. His testimony was similar to what he said at the warrant application hearing with a few variances. He stated that he had been to Stank's residence over one hundred times and spent roughly $70 on his weekly purchases. He also testified that he knew the identity of the anonymous informant. He claimed his cousin had made that phone call to get even with Stank for flirting with his wife at a party.
¶ 20. The State also called seven police witnesses involved with either the search, the handling or analysis of the seized evidence, or both, and the forensic scientist who analyzed the drug evidence. Detectives Glidewell and Davila testified to their visual identification of the Oxycontin, and Detective Davila also discussed the results of her chemical analysis of the marijuana. The forensic scientist from the state crime *427 laboratory testified about her examination of the drug evidence as well. With respect to the twenty green pills in Exhibit 47, she stated to a reasonable degree of scientific certainty that the pills were Oxycontin. She further stated that the assortment of pills in Exhibit 46which Detective Glidewell recovered from the garbage canwere consistent in appearance with the Oxycontin pills in the Physician's Desk Reference. This witness confirmed that the green pills looked identical to those in Exhibit 47.
¶ 21. The State also presented testimony about the amount of drugs and the drugs' street value. The amount of marijuana totaled approximately three pounds or over one thousand grams. According to Detective Glidewell's testimony, a gram of marijuana could sell on the street for anywhere between $5 and $15 dollars. At the time of the search, the amount found in Stank's house would probably have sold for at least $6000 if sold by the gram. If sold wholesale by the pound, it would sell for roughly $2100. Detective Glidewell asserted that in his experience, people who buy marijuana for personal use usually buy by the gram or by the ounce, while dealers usually buy by the pound.
¶ 22. The jury also heard testimony about the value of the fifty-seven Oxycontin pills. According to Detective Glidewell, a white ten-milligram pill sells for $15 to $20, and a yellow forty-milligram pill sells for $20 to $30. The green eighty-milligram tablets can sell for as much as $40 per pill. Detective Glidewell also stated that, based on his experience, users of Oxycontin usually possess only one or two pills at a time.
¶ 23. During the State's case, the court admitted several exhibits, including the drug evidence and various drug paraphernalia, such as the marijuana pipes, the scale, and the grow lights. It also admitted many of *428 the firearms, the bulletproof vest, the flash suppressor, and the various munitions-related publications.
¶ 24. At the close of the State's case, the defense moved to dismiss each of the four counts for lack of sufficient evidence. Defense counsel also opposed the admission of Exhibit 46 because the forensic scientist could not state to a reasonable degree of scientific certainty that the pills in that exhibit contained Oxycontin. The court ruled in favor of the State.
¶ 25. The defense called Detectives Heck and Glidewell as defense witnesses. Both testified about their conversations with Oehler. Heck also confirmed that he had investigated Stank's burglary complaint and his arrest of Oehler for the unlawful telephone use. Stank also called a friend as well as his neighbor. The friend testified that he and Stank often hunted together and that he had seen some of Stank's hunting guns. He also asserted that he knew Stank to collect guns. The witness denied ever seeing drugs in Stank's house in the seven to ten years that he knew him. The neighbor testified last. He stated that in the fall of 2001, he heard the burglar alarm go off at Stank's house and thought he recognized the silhouette and vehicle of a person he now knows to be Oehler. Essentially the defense theory of the case was that Oehler may have planted the drug evidence in order to get even with Stank and that there was an innocent explanation for the presence of the guns, namely that Stank was an avid hunter who collected guns.
¶ 26. At the close of all the evidence, the defense renewed its motion to dismiss each of the four counts. The court again denied the motion, and the jury returned a verdict of guilty on all four counts. The court entered judgment on counts one, three, and four. After *429 some reflection, the court also entered judgment on count two, the possession with intent to deliver Oxycontin charge.
¶ 27. Stank sought postconviction relief on March 22, 2004. He renewed his objection that the physical evidence should have been suppressed and his contention that the evidence adduced at trial was insufficient to support count two of the amended information. He also stated that the court erred by admitting the guns and publications because they constituted improper character evidence. The court denied relief, and Stank appeals.
¶ 28. We first address Stank's contention that the fruits of the search should have been suppressed because the search warrant was defective. We give great deference to a court's determination of probable cause to issue a warrant, and the defendant bears the burden of challenging probable cause. State v. Multaler, 2002 WI 35, ¶ 7, 252 Wis. 2d 54, 643 N.W.2d 437. The court may draw reasonable inferences from the evidence presented and must make a practical, commonsense determination whether, based on that evidence and under all the circumstances, a fair probability exists that contraband or evidence of a crime will be found at the place to be searched. Id., ¶ 8.
¶ 29. Stank claims two grounds for defectiveness here. First, he argues that the court should not have found probable cause existed because Oehler's testimony was inherently unreliable. When he argued that ground before the trial court, he pointed to the falling out between the parties, the fact that law enforcement had promised not to pursue the unlawful use of the telephone charges against Oehler, Oehler's criminal *430 record, and the fact that the police had reimbursed Oehler for transportation expenses so he could be present at the warrant application hearing. On appeal, he also points to perceived inconsistencies between Oehler's testimony at the hearing and his trial testimonyspecifically, he points to the number of times Oehler had been to Stank's apartment, the amount of his weekly purchases, and Oehler's statement at trial identifying his cousin as the anonymous tipsterto bolster his position that had the trial court allowed him to have an evidentiary hearing, he could have cast doubt on Oehler's credibility and veracity prior to the trial.
¶ 30. We hold that Stank was not entitled to such a hearing. In Morales v. State, 44 Wis. 2d 96, 102-03, 170 N.W.2d 684 (1969), our supreme court held that a defendant could not challenge the credibility of the witness upon whose testimony the court relied in issuing the search warrant. There, the defendant pointed to his wife's testimony at trial that she had a romantic relationship with the witness prior to her marriage to the defendant. Id. at 102. The court deemed this fact irrelevant and held that where the witness testified to facts within his personal knowledge, the court could justifiably accept it as trustworthy. Id. at 102-03. In other words, it was for the warrant-issuing court to evaluate the credibility of the witness, and any challenge to the court's finding was limited to the record established before the court at the time it issued the warrant. See also Rainey v. State, 74 Wis. 2d 189, 199-200, 246 N.W.2d 529 (1976) (magistrate entitled to find a witness credible because he had the ability to observe the demeanor of witness and hear his testimony, even if the witness was a paid informant).
*431 ¶ 31. Like the defendant in Morales, Stank relies primarily on testimony adduced at the trial and evidence that the witness testifying in support of the search warrant had a personal vendetta against him and other incentives to lie on behalf of law enforcement. We note that in this case, the warrant-issuing court did hear about Oehler's motives to fabricate testimony and nonetheless found him to be truthful. Moreover, the mere desire for cross-examination does not justify an evidentiary hearing, Franks v. Delaware, 438 U.S. 154, 171 (1978), so the possibility that Stank could have elicited inconsistent testimony at an evidentiary hearing is irrelevant.
¶ 32. We note that Franks does entitle a defendant to an evidentiary hearing when he or she can make a preliminary showing that a witness deliberately lied or testified with disregard for the truth of his or her statements. See also State v. Mann, 123 Wis. 2d 375, 385-89, 367 N.W.2d 209 (1985) (extending Franks to material omissions of fact that are the equivalent of deliberate falsehoods or reckless disregard for the truth). Here, however, that case is inapposite. Defense counsel expressly agreed with the trial court's observation that he was not pursuing a Franks-Mann motion but rather merely sought to impeach Oehler's credibility.
¶ 33. Stank's second objection to the warrant is that Oehler's information was "stale" because Oehler had not been to Stank's residence for almost two months by the time he testified in support of the warrant. We disagree. Again, Multaler teaches that the passage of time does not alone render probable cause *432 stale and that in certain circumstances, old information may still support an inference that probable cause exists at the time the State applies for a warrant. Multaler, 252 Wis. 2d 54, ¶ 36. The warrant-issuing court may look to several factors in determining whether probable cause remains in the face of old information, including: the nature of the underlying circumstances, whether the activity is of a protracted or continuous nature, the nature of the criminal activity under investigation, and the nature of the evidence sought. Id., ¶ 37. Moreover, the court may consider the experience and special knowledge of the police officers applying for a warrant among other relevant factors. Id., ¶ 43.
¶ 34. The court here had ample basis to conclude that probable cause existed. It heard Oehler's testimony that he bought $50 worth of marijuana from Stank on a weekly basis, that he had been to Stank's residence over 500 times, that every time Oehler was at the residence, he would see the same group of other individuals there to buy drugs, and that Stank had showed him a firearm he owned. He also testified that Stank had been his supplier for several years and that Stank stored his drugs in two freezers in the house. This evidence supported the conclusion that Stank had a longstanding, ongoing, and large-scale drug-trafficking business. The court was also entitled to rely on Detective Glidewell's testimony that in his experience, such operations did not just suddenly cease. Moreover, the nature of the evidence soughtdrugs and drug paraphernalia, cash and ledgers, and weapons that a dealer might use to protect his drugswere directly related to that continuous and ongoing activity. In light of these factors, the roughly two-month passage of time did not *433 significantly diminish the probability that the officers would uncover evidence of drug dealing.
¶ 35. We next consider Stank's argument that the trial court plainly erred in admitting the weapons and the munitions-related publications. See WIS. STAT. § 901.03(4) (2003-04) (court may consider plain errors affecting substantial rights even where not brought to the attention of the trial court). A "plain error" means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶ 25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Relying on State v. Spraggin, 77 Wis. 2d 89, 252 N.W.2d 94 (1977), Stank claims admitting this evidence deprived him of his constitutional right to a fair trial, insisting that the State admitted the weapons and publications in order to sully his character. In Spraggin, the court held that evidence of the defendant's possession of guns and stolen goods was improperly admitted in her trial for intentionally aiding and abetting in the delivery of heroin. Id. at 92, 96-102. Stank quotes the following passage from Spraggin:
Weapons and stolen goods may constitute the protection and currency necessary in the realm of heroin trafficking, but the State did not demonstrate in any manner that this particular evidence was so employed. The inference of such use must be supported by more than the mere introduction of these exhibits into evidence and the broad assertion that guns and stolen goods are commonly used by those in the heroin trade.
Id. at 100.
¶ 36. We disagree that Spraggin is on point. In State v. Wedgeworth, 100 Wis. 2d 514, 530-31, 302 N.W.2d 810 (1981), the supreme court expressly limited Spraggin to cases involving improper character evidence. *434 See id. (stating Spraggin should not be extended to cover circumstances beyond WIS. STAT. § 904.04(2)). In Wedgeworth, the State's admission of such evidence was directly relevant not to an "other act" but to an element of the crime with which Wedgeworth was charged, possession with intent to deliver. The offenses charged in that case were possession of marijuana and possession with intent to deliver heroin. Wedgeworth, 100 Wis. 2d at 516, 533. A police witness identified at trial three weapons seized from the defendant's home. Id. at 527. He further testified that on previous occasions he had encountered guns and gunfire when executing search warrants in narcotics cases. Id. The court held the evidence was properly admitted as "indicative of the role of self-help and self-protection in the business of drug trafficking." Id. at 533. This inference differed from the inference invited by the evidence in Spraggin that because heroin dealers often engaged in self-help, the defendant's possession of guns made it more likely that she was engaged in drug schemes and therefore was guilty of aiding and abetting heroin dealing. See Spraggin, 77 Wis. 2d at 99.
¶ 37. Stank's case more closely resembles Wedgeworth. Contrary to Stank's assertions, the weapons and publication evidence went directly to the "while armed" element of the offense and were relevant for purposes other than demonizing Stank's character. Indeed, they were highly probative wholly independent of any negative character inference. The presence of the guns, when juxtaposed with the publications, the flash suppresser, and the bulletproof vest struck at the core of the defense theory of the case. The jury heard evidence that hunters do not use flash suppressors and bulletproof vests. Moreover, it heard evidence that the Mac-11 to which the flash suppressor attached was not *435 a hunting gun. This evidence suggested Stank intended to use the guns not, as he claimed, for innocent purposes like hunting but for violent purposes, an inference bolstered by the introduction of the publications.
¶ 38. The location of the guns further magnified the evidentiary value of this evidence. Detective Glidewell found the pistol, for example, in a garbage can containing not trash but a bottle of Oxycontin pills and bags of marijuana. Stank's deliberate placement of the pistol next to the drugs strongly suggests he placed it there to guard them. Similarly, the bulletproof vest, the Mac-11 handgun, and two other weapons were found in the same closet as two marijuana pipes, the other stash of Oxycontin, and the yellow envelope containing $700 in cash.
¶ 39. Given the potent nature of the weapons and publication evidence wholly apart from any impermissible character inferences, we cannot say that the trial court clearly erred in allowing this evidence. Moreover, the possibility that the jury would use this evidence for an impermissible purpose was strongly diminished. At voir dire, the State warned the prospective jurors that it intended to introduce such evidence and indicated that they should not decide the case based on visceral reactions to such items. Indeed, the two jurors who expressed strong feelings with respect to these items were dismissed for cause. Again, to the extent the court erred, any error is far from obvious.
¶ 40. Finally, we reach Stank's objection to the sufficiency of the evidence with respect to count two, possession with intent to deliver Oxycontin, while armed. First, he protests that the State only had one of the two stashes of suspected Oxycontin tested and therefore could not even prove that all of the drugs were *436 in fact Oxycontin. According to Stank, the forensic scientist's comparison of the pills to the desk reference did not suffice to identify the pills as Oxycontin because she "would not express an opinion to a reasonable degree of scientific certainty that the pills in Exhibit 46 contained oxycodone."
¶ 41. We reject Stank's argument based on State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997). The defendant in that case objected that the State had failed to meet its burden of proving the amount of cocaine in his possession. Id. at 288-89. The chemist had conducted presumptive color tests on all fifteen samples of suspected cocaine and concluded that one contained cocaine powder and the others cocaine base. Id. at 285. He performed confirmatory tests on the cocaine base sample and on one of the fourteen samples of cocaine powder, both of which tested positive for cocaine. Id. at 285-86. At trial the chemist testified that the presumptive test he used was ninety-nine percent accurate and that his practice of randomly testing a representative sample was widely employed. Id. at 290-91. We held that the State had put forth sufficient evidence to support the conviction based on the combination of the presumptive test, the confirmatory follow-up tests, and other circumstantial evidence obtained during the search. Id. at 292.
¶ 42. Here, the forensic scientist conducted both a presumptive identification and a confirmatory test on a random sample of the suspected Oxycontin. Identification of a pill using the Physician's Desk Reference qualifies as a presumptive test. WISCONSIN STAT. § 907.02 and State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991), recognize that any specialized knowledge beyond the ken of the average *437 person, including knowledge gained from experience alone, can form the predicate of an expert opinion. Thus, the knowledge need not be "scientific," see Hollingsworth, 160 Wis. 2d at 896 (no special technical or academic training necessary), and "scientific certainty" is not necessary. The fact that the witness here was a forensic scientist therefore did not preclude her from forming an expert opinion about the accuracy of the desk reference based on experience. This witness testified that in her eleven years of experience, she had never found her pharmaceutical identification of a tablet inconsistent with the results of scientific tests. Detective Davila gave similar testimony based on her experience on the vice control squad, stating that she had never seen a case in which the pill she identified in the desk reference turned out to be a counterfeit of that drug.
¶ 43. Moreover, we note that other courts have recognized the Physician's Desk Reference as a source commonly relied upon by members of the medical profession and pharmaceutical industry. A New York court characterized the desk reference as a "compendium often relied upon by physicians to obtain knowledge of the proper uses and hazards of drugs," see Tenuto v. Lederle Labs., Div. Of Am. Cyanamid Co., 695 N.Y.S.2d 259, 266 (Sup. Ct. 1999) (citation omitted), and among the "well-known methods by which pharmaceutical manufacturers apprise the medical profession of the dangers of a drug." Id. (citation omitted). Even more significantly, at least one federal court has relied on the desk reference for its pictorial representations of different drugs. In American Home Products Corp. v. Chelsea Laboratories, Inc., 572 F. Supp. 278, 278-81 (D.N.J. 1982), aff'd, 722 F.2d 730 (3d Cir. 1983), 722 F.2d 731 (3d Cir. 1983), and 722 F.2d 736 (3d Cir. 1983), the plaintiff, *438 a drug manufacturer, sued another drug company for marketing pills using the same trade dress. The court compared features comprising a drug's trade dress, e.g., color, shape, size, and finish, with features on a human face, observing that enough combinations of features existed for each drug to have a different trade dress. Id. at 281. It pointed to the desk reference as evidence that drug manufacturers customarily design unique trade dresses for each product. Id. Significantly, the forensic expert and Detective Davila cited various aspects of trade dress, including color, shape, size, absence of scoring, and finish, as the features they identified from the desk reference.
¶ 44. In addition to the presumptive pharmaceutical evaluation by Detective Davila and the forensic scientist, the jury in this case, just as the fact finder in Dye, had a confirmatory follow-up test and other circumstantial evidence of content that it could consider. The forensic scientist performed two confirmatory scientific tests on one of the green pills in Exhibit 47. This pill was identical in appearance to all of the other pills in Exhibit 47 and to six of the pills in Exhibit 46. Thus, it was a representative sample of some pills in both exhibits. Although the yellow and white pills were not tested, other circumstantial evidence of their content corroborates the presumptive identification. First, they were placed in the same container as green pills identified as Oxycontin through the representative sampling. Second, they were found next to other suspected drugs that subsequently tested positive as marijuana. All of these factors together constitute sufficient evidence that the pills contained Oxycontin.
¶ 45. We further reject Stank's argument that insufficient evidence existed to support the "intent to *439 deliver" element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver, including the amount of the controlled substance, its dollar value, and the presence of other drugs and drug paraphernalia. Numerous of these factors supported the verdict in this case. First, Detective Glidewell's unimpeached testimony was that typically a user of Oxycontin purchases one or two pills at a time. Stank had ten times that amount in his closet and an even greater quantity in the trash can. Moreover, the street values are consistent with drug trafficking. The pills in Exhibit 47 had a potential sale value of $800. The detective gave a range of values for the ten- and forty-milligram tablets. Assuming Stank sold at the low end of this range, the sale value for all of the pills in Exhibit 46 totals $850. At the high end, the amount comes closer to $1150. The value of his entire stash of pills then is somewhere between $1650 and $1950. We also note the yellow envelope with $700 in cash which lay in close proximity to the pills in Exhibit 47.
¶ 46. The jury was also entitled to look at the presence of the approximately three pounds of marijuana, an amount far more consistent with the large-scale dealing of drugs than with personal use. Further, depending on whether it sold by the pound or by the gram, the marijuana supplies could sell at minimum for anywhere between $2100 and $6000. The presence of drug paraphernalia, Oehler's testimony that he frequently saw other people buying marijuana from Stank, and weapons available to protect the supplies also support an inference that Stank engaged in drug trafficking and therefore intended to sell the Oxycontin.
*440 ¶ 47. We affirm on all grounds. Stank was not entitled to an evidentiary hearing to attack Oehler's credibility, and Oehler's absence from Stank's residence was insignificant in terms of probable cause given the longstanding and large-scale nature of Stank's drug activity. The court also did not plainly err at trial because the reading material, firearms, and other weapons-related accessories had highly probative value wholly unrelated to vilifying Stank's character. Finally, the evidence supports the Oxycontin charge. Detective Davila and the forensic scientist properly used the Physician's Desk Reference to presumptively determine the identity of the suspected Oxycontin. The result of this presumptive test, as in Dye, was supported both by a confirmatory test and other circumstantial evidence. Finally, the record contains plenty of circumstantial evidence that Stank intended to deliver the Oxycontin.
By the Court. Judgments and order affirmed.
*441
NOTES
[] Petition to review denied 1-20-06.
[1] The record is clear that Oehler had purchased marijuana from Stank intermittently before 2001 but contains inconsistent information on when those occasional purchases started.
[2] Please refer to language effective prior to February 1, 2003. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
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124 Cal.Rptr.2d 844 (2002)
101 Cal.App.4th 1073
ROSENBLUTH INTERNATIONAL, INC., Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent. Jose Serrano, Real Party in Interest.
No. B158675.
Court of Appeal, Second District, Division Five.
September 5, 2002.
As Modified September 11, 2002.
Review Denied December 11, 2002.[*]
*845 Seyfarth, Shaw, F. Scott Page and Damon C. Anastasia, Los Angeles, Grant S. Palmer, pro hac vice, for Petitioner.
No appearance for respondent.
Law Office of Jonathan Weiss, Beverly Hills, for Real Party in Interest.
ARMSTRONG, J.
Under California's Unfair Competition Law (UCL) (Bus. & Prof.Code, § 17200 et seq.),[1] a private plaintiff who has itself suffered no injury may file an action for restitution and/or injunctive relief against a person or business entity alleged to be engaged in any "unlawful, unfair or fraudulent business act or practice...." (§ 17200.) As our courts have liberally construed the UCL, virtually the only limitation on such actions is that the plaintiff must be acting on behalf of "itself, its members or the general public." (§ 17204.) In this proceeding, we hold that the purported victims in this case, all large Fortune 1000 corporations that have individually negotiated written contracts with the defendant, are not the "general public" for purposes of the UCL.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Jose Serrano, filed this action on August 23, 2001. Purporting to act on his own behalf and "for the interests of the general public under the Unfair Competition Law," Serrano alleges that Rosenbluth, a travel agency serving large corporate clients, uses fraudulent accounting methods in order to understate significantly the amount of rebates, or "overrides," that are due to its customers. As a result, Rosenbluth "is wrongfully taking from its customers millions of dollars that rightfully belong to them."
On February 22, 2002, Rosenbluth filed a motion for summary judgment, alleging, among other grounds, that Serrano lacked standing as a "competent plaintiff to bring the action on behalf of the parties alleged to be injured, because he was not a party to any contract with Rosenbluth. (See Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 138, 96 Cal.Rptr.2d 485, 999 P.2d 718.) In support of the motion, Rosenbluth submitted a declaration from Michael Boult, its Vice President of Supplier and Customer Relations.[2]*846 Mr. Boult stated that Rosenbluth's large corporate customers have substantial leverage in negotiating their travel contracts, and only Rosenbluth's largest corporate customers have the negotiating power to procure contracts with override sharing provisions of the type at issue in this lawsuit. Each contract is individually negotiated, usually over a period of months. The evidence before respondent court, including Serrano's responses to Rosenbluth's statement of undisputed facts, established that Serrano was not a Rosenbluth customer, was not a party to any contract with Rosenbluth, and personally did not suffer any injury as the result of Rosenbluth's alleged actions. In fact, none of Rosenbluth's customers are parties to this action.
Respondent court denied the motion after a hearing on April 30, 2002. In so doing, the court stated: "[T]he real issue here, as I see it, is one of equity, whether or not it would be inequitable here to find that the plaintiff cannot bring this action. I have not really seen anything which demonstrates to me that kind of unfairness evident here."
Having conducted the appropriate de novo review of respondent court's order (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653), we conclude, as a matter of law, that Serrano lacks standing as a "competent plaintiff to bring this action because he has failed to demonstrate that he filed the action on behalf of "the general public."
DISCUSSION
The Unfair Competition Law (UCL), permits "any person acting for the interests of itself, its members or the general public" (§ 17204) to file an action for restitution and/or injunctive relief (§ 17203) against a person or business entity alleged to be engaged in any "unlawful, unfair or fraudulent business act or practice...." (§ 17200) As interpreted by our Supreme Court, the UCL allows a private plaintiff who himself has suffered no injury to file a lawsuit under the UCL in order to obtain relief for others. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 561-562, 71 Cal. Rptr.2d 731, 950 P.2d 1086.) The representative plaintiff need only show that members of the general public are likely to be deceived. "Allegations of actual deception, reasonable reliance, and damage are unnecessary." (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211, 197 Cal. Rptr. 783, 673 P.2d 660; see also Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266-1267, 10 Cal.Rptr.2d 538, 833 P.2d 545.)
"Class actions and representative UCL actions make it economically feasible to sue when individual claims are too small to justify the expense of litigation, and thereby encourage attorneys to undertake private enforcement actions." (Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th at p. 126, 96 Cal.Rptr.2d 485, 999 P.2d 718.) Where the UCL action is based on a contract, the representative plaintiff may seek to vindicate the rights of individual consumers who are parties to the contract. (See Prata v. Superior Court (2001) 91 Cal.App.4th 1128, 1143, 111 Cal.Rptr.2d 296 [creditor falsely advertised credit program as "Same as Cash" without advising consumers that the program required minimum monthly payments]; AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 109 Cal.Rptr.2d 359 [suit against insurance *847 company alleging improper transfer of policies and assignment of liabilities without consent of policyholders]; Hernandez v. Atlantic Finance Co. (1980) 105 Cal. App.3d 65, 164 Cal.Rptr. 279 [suit against used car dealership and finance company for violations of the Rees Levering Automobile Sales Financing Act].) However, a UCL action based on a contract is not appropriate where the public in general is not harmed by the defendant's alleged unlawful practices. (See South Bay Chevrolet v. GMAC (1999) 72 Cal.App.4th 861, 888-890, 85 Cal.Rptr.2d 301 [no showing members of the public were likely to be deceived by wholesale security agreement between lender and automotive dealers].
The Prata court drew a fitting distinction between actions brought to assert the claims of individual consumers under section 17200, which lend themselves well to representative UCL cases, and actions that involve sophisticated business finance issues, which do not. (Prata, supra, 91 Cal.App.4th at p. 1143, 111 Cal.Rptr.2d 296.) Where the subject of the action is an unlawful business practice or false advertising that harms individual consumers, the consumer/victims, powerless individually, may welcome the opportunity to have their rights vindicated in a representative action under the UCL. This is not such a case, however. The alleged victims here are not unwary targets of false advertising (Committee on Children's Television, supra), innocent youths corrupted by lawbreaking retailers (Stop Youth Addiction, supra), aggrieved used car purchasers (Hernandez, supra) or a "singularly dense" group of consumers who fall prey to misleading advertising designed to lure them into high-interest loan contracts. (See Beneficial Corporation v. Federal Trade Commission (3d Cir.1976) 542 F.2d 611, 618.) To the contrary, Rosenbluth's undisputed evidence establishes that its only customers are sophisticated corporations, most in the Fortune 1000, each of which negotiates contracts individually with Rosenbluth and each of which presumably has the resources to seek damages or other relief from Rosenbluth should it choose to do so.
Indeed, Serrano's effort to act as the self-appointed representative of these alleged victims not only raises significant logistical and constitutional issues, it may well leave the victims worse off than they would be if they filed individual actions against Rosenbluth. The case of Bronco Wine Co. v. Frank A Logoluso Farms (1989) 214 Cal.App.3d 699, 262 Cal.Rptr. 899, amply illustrates the problem. In Bronco Wine, a grape grower (who, unlike Serrano, was actually damaged by the defendant's acts), filed suit on behalf of itself and other grape growers who had contracts with the defendant winery. In its cause of action under the UCL, the plaintiff alleged the defendants had committed unlawful business practices that included "wrongfully rejecting and refusing to accept grapes, adopting arbitrary quality standards, applying quality standards unreasonably in order to pay less for accepted grapes than the price agreed to by Bronco, threatening to sue and suing growers who complained of Bronco's conduct." (Id. at p. 715, 262 Cal.Rptr. 899.) The plaintiff did not seek to join the nonparty growers in the action, and "[t]the only nonparty grower who appeared as a witness at trial testified he had no objection to the amount received from Bronco for his 1982 grape crop." (Id. at p. 716, 262 Cal.Rptr. 899.)
The Court of Appeal reversed the trial court's award of restitution damages to the nonparty growers under the UCL. The court first noted that the judgment raised serious due process concerns: "[N]one of the nonparty growers were ever given notice of these proceedings or an opportunity *848 to be represented by counsel of their own choosing. [¶] Of the 27 nonparty growers who received restitution damages, the contracts of only 20 of these growers were presented into evidence. Other exhibits showed that all recipients of restitution damages did have written contracts with Bronco." (Bronco Wine Co. v. Frank A. Logoluso Farms, supra, 214 Cal.App.3d at p. 718, 262 Cal.Rptr. 899.) One such grower had "expressly disavowed any right to restitution"; others had challenged the validity of releases hastily procured by Bronco when it became evident the court would award restitution damages to the nonparty growers.
The calculation of the nonparty plaintiffs' damages also presented some difficulty, because the process of determining the amount of restitution damages did not involve an "automatic calculation" as it might in the case of a form contract. As in this case, each of the nonparty victims had a separate contract with the defendant, thus each victim's damages would have to be calculated separately. (Bronco Wine Co. v. Frank A Logoluso Farms, supra, 214 Cal.App.3d at p. 720, 262 Cal.Rptr. 899.)
By purporting to act as their self-appointed representative and asserting claims on their behalf in a UCL action, Serrano could in fact deprive Rosenbluth's alleged victims of the individual opportunity to seek remedies far more extensive than those available under the UCL, which limits the plaintiffs to injunctive relief and restitution. If Rosenbluth's actions are as serious as Serrano alleges, its alleged victims would derive more benefit from individual lawsuits. As the court noted in Bronco, a representative action to which the alleged victims are not parties "raises serious fundamental due process considerations."
"[B]ecause a UCL action is one in equity, in any case in which a defendant can demonstrate a potential for harm or show that the action is not one brought by a competent plaintiff for the benefit of injured parties, the court may decline to entertain the action as a representative suit." (Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th at p. 138, 96 Cal.Rptr.2d 485, 999 P.2d 718.) In the present case, Rosenbluth has demonstrated by undisputed evidence that those on behalf of whom Serrano purports to bring the action are not members of the "general public." Accordingly, Rosenbluth is entitled to summary judgment as a matter of law.
DISPOSITION
A peremptory writ shall issue directing respondent court to vacate its order of April 30, 2002, denying the motion of defendant Rosenbluth International, Inc. for summary judgment, and enter a new and different order granting the motion. Costs of this proceeding are awarded to petitioner Rosenbluth.
I concur: GRIGNON, J.
TURNER, P.J., Dissenting.
I would deny the mandate petition. The respondent court correctly decided that there is a triable issue as to whether plaintiff, Jose Serrano, has standing to pursue the Unfair Practices Act claim against defendant, Rosenbluth International, Inc. Further, the trial court could conclude that defendant's unreasonable refusal to respond to interrogatories, production demands, and admissions requests warranted denial of the summary judgment motion.
First, in terms of the merits, my views in this regard are premised on the express language of the Unfair Practices Act. Business and Professions Code section 17204 expressly provides, "Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by ... any person acting for the interests of ... the general public." (Italics added; Stop Youth Addiction, Inc. v. *849 Lucky Stores, Inc. (1998) 17 Cal.4th 553, 560-567, 71 Cal.Rptr.2d 731, 950 P.2d 1086; AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 591-592, 109 Cal.Rptr.2d 359.) The purpose of the Unfair Practices Act is described in pertinent part as follows: "The Legislature declares that the purpose of this chapter is to ... foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent and discriminatory practices by which fair and honest competition is destroyed or prevented." (Bus. & Prof.Code, § 17001; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179, 83 Cal.Rptr.2d 548, 973 P.2d 527; ABC Internal Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1256, 61 Cal.Rptr.2d 112, 931 P.2d 290.) The Unfair Practices Act is to be liberally construed. (Bus. & Prof.Code, § 17002; ABC Internal Traders, Inc. v. Matsushita Electric Corp., supra, 14 Cal.4th at p. 1256, 61 Cal.Rptr.2d 112, 931 P.2d 290; People v. Centr-O-Mart (1950) 34 Cal.2d 702, 704, 214 P.2d 378.) Under the Unfair Practices Act, a private person may pursue a claim based on "`"any unlawful business practice."'" (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 603, 89 Cal.Rptr.2d 370, citing Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at p. 562, 71 Cal.Rptr.2d 731, 950 P.2d 1086; orig. italics.)
The issues before us are framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252, 32 Cal. Rptr.2d 223, 876 P.2d 1022 overruled on another ground in Romano v. Rockwell Internal, Inc. (1996) 14 Cal.4th 479, 498, 59 Cal.Rptr.2d 20, 926 P.2d 1114; Oates v. City of Lincoln (2001) 93 Cal.App.4th 25, 30, 112 Cal.Rptr.2d 790.) The complaint alleges: defendant, the second-largest travel agency in the United States, falsely promises its customers that they will receive rebates from airlines who provide air transportation; defendant falsely agrees to refund to its customers 100 percent of rebates that their employees earn while flying on business; defendant in fact prepares "a phony spreadsheet calculation that significantly understates the amount of rebates" that are owed to its customers; and all of defendant's customers are misled in this regard. If this is true, and it bears emphasis that no definitive evidence has been received on the issue of whether defendant has engaged in the alleged accounting fraud, this is a case where plaintiff has standing to sue on behalf of the general public. The general public is prejudiced by the alleged misconduct, if it is true, because: corporations which are victims of the alleged misuse of the spreadsheet, which frankly amounts to theft by defendant, are necessarily going to pass on the added costs to their customersthe public; companies doing business with defendant will be less able to efficiently compete because they have been defrauded by the purported misappropriation of rebates; and the Unfair Practices Act is premised on the demonstrably accurate assumption that fair and honest competition is hindered by "unfair, dishonest, deceptive, destructive, [and] fraudulent" practices. (Bus. & Prof.Code, § 17001.) Further, the evidence in support of the summary judgment motion indicates that many of defendant's customers are Fortune 1000 companies. In my opinion, protecting not only small businesses or individuals from accounting fraud, but also large corporations, furthers the public interest.
I agree though with my colleagues' observations concerning possible due process problems. (Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699, 716-721, 262 Cal.Rptr. 899 [class action decision expressly refusing to address due process issue in representative lawsuit context].) There are likewise potential confidentiality issues which will probably arise in connection with disclosure of individual *850 agreements with defendant's customers. However, neither of these considerations warrants a grant of summary judgment. Putting aside the fact that neither issue is definitively resolved in defendant's brief 4-page separate statement listing only 15 undisputed facts, questions of due process can be resolved including giving notice to its customers. Further, without affecting current contracts, the respondent court could issue injunctive relief concerning future misuse of spreadsheets by defendant. If the as-yet unproven claims of misuse of the spreadsheets are true, morality, reason, the public interest, and the law impel the conclusion that, at least in terms of future contracts, such accounting fraud should be enjoined. Likewise, questions of disclosure of contractual terms can be resolved as part of the discovery process. It may very well be that ultimately plaintiff will not have access to the contracts at issue because of trade secret considerations and his case will fail. It also may be the case that issue or evidence sanctions will be imposed against defendant because of its privilege claims thereby leading to a potential legal victory for plaintiff. (Code Civ. Proa, § 2023, subds. (b)-(c); Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305-308, 104 Cal.Rptr.2d 525; A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 564-565, 142 Cal.Rptr. 390.) Nonetheless, neither the due process question nor discovery disputes have been resolved nor were they susceptible to resolution as part of the present summary judgment litigation.
Second, defendant has refused, with one exception, to respond to plaintiffs interrogatories, document production demands, and admissions requests. With one exception, defendant has objected to every interrogatory, document demand, and admission request. Some of the objections are frivolous. In response to an admission request, defendant has even refused to deny the allegation it failed to pass on the rebates to its customers. The respondent court acted well within its discretion in refusing to grant summary judgment in the face of such discovery abuses by defendant. (Code Civ. Proa, § 437c, subd. (h); Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 421, 42 Cal.Rptr. 449, 398 P.2d 785; People v. $4,503 United States Currency (1996) 49 Cal.App.4th 1743, 1748-1749, 57 Cal. Rptr.2d 467.)
Finally, it bears emphasis that plaintiff has introduced no evidence to support his serious allegations of corporate misconduct. My analysis in this opinion, apart from the discussion of very serious discovery abuses, is based entirely upon the issues as posited by the pleadings and the limited evidence introduced during the summary judgment litigation. The legal and factual underpinnings of my analysis, that defendant has engaged in what amounts to theft from major corporations in this country thereby prejudicing the public interest, has yet to be proven.
NOTES
[*] Kennard, J., dissented.
[1] All further statutory references are to the Business and Professions Code unless otherwise indicated.
[2] Serrano raised evidentiary objections to portions of Mr. Boult's declaration. However, Serrano did not obtain rulings on the evidentiary objections at the hearing below. Accordingly, the objections are waived for the purpose of appellate review. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, 91 Cal.Rptr.2d 35, 989 P.2d 121.)
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379 Pa. Superior Ct. 285 (1988)
549 A.2d 1296
COMMONWEALTH of Pennsylvania
v.
Freddie GIBBONS, Appellant.
Supreme Court of Pennsylvania.
Submitted May 9, 1988.
Filed November 4, 1988.
*288 Maryann F. Swift, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Before CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.
HOFFMAN, Judge:
This appeal is from the judgment of sentence for robbery, 18 Pa.C.S.A. § 1103, and possession of an instrument of crime, 18 Pa.C.S.A. § 1104. Appellant contends that the trial court erred in (1) denying his motion to dismiss under Pa.R.Crim.P. 1100; (2) granting the Commonwealth's motion to consolidate six separate cases for trial; (3) denying his motion to suppress evidence seized during a consent search of appellant's home; (4) excusing a juror; and (5) refusing to charge the jury to view identification testimony with caution. Appellant also contends that the court abused its discretion in imposing an excessive sentence. For the reasons set forth below, we affirm the judgment of sentence.
On December 13, 1985, appellant was arrested and charged with six counts of robbery and six counts of possession of an instrument of crime. The charges stemmed from six separate incidents that occurred over a three month period in 1985. The Commonwealth filed, and the court below granted, a motion to consolidate the six cases on the basis that they involved a common scheme. Following a jury trial, appellant was found guilty of all charges. Post-trial motions were filed and denied. Appellant was sentenced to an aggregate term of twenty-one-to-forty-two years imprisonment. This appeal followed.
Appellant contends initially that the court erred in denying his pre-trial petition to dismiss under Rule 1100. According to appellant, Rule 1100 requires that all requests for extension of trial date must be in writing. Specifically, appellant argues that because the Commonwealth orally *289 amended its petition and failed to file a written amendment as required by Rule 1100, the Commonwealth did not comply with the requirements of Rule 1100. We disagree.
Pennsylvania Rule of Criminal Procedure 1100 sets forth the prompt trial requirement and provides in relevant part:
(a)(2) Trial in a court case in which a written complaint is filed against the defendant . . . shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
Id. Rule 1100 mandates that a defendant be discharged unless all periods of delay beyond the one-hundred-eighty day run date for the commencement of trial are attributable to either an extension granted to the Commonwealth or an exclusion of time resulting from either the unavailability of defendant or counsel, or a continuance chargeable to the defense. Pa.R.Crim.P. 1100(c)(1) and (d)(3). See also Commonwealth v. Lafty, 333 Pa.Super. 428, 433, 482 A.2d 643, 645 (1984).
Prior to the expiration of the date scheduled for the commencement of trial, the Commonwealth may apply to the court for an order extending the trial date. Pa.R. Crim.P. 1100(c)(1). "Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension." Commonwealth v. Colon, 317 Pa.Super. 412, 420, 464 A.2d 388, 392 (1983). Once the Commonwealth has filed a petition for an extension, it may orally amend the existing petition provided that notice was given to defendant at the time of the filing of the initial petition. Commonwealth v. Smith, 348 Pa.Super. 81, 90-91, 501 A.2d 656, 661 (1985).
Here, the written complaint against appellant was filed on December 10, 1985, and the run date for the commencement of trial was June 11, 1986. Appellant's trial, however, did not commence until October 7, 1987, five-hundred-eighteen days after the complaint was filed. The running of the one-hundred-eighty-day period was initially tolled for four months by the unavailability of the trial judge. See Commonwealth v. Colon, 317 Pa.Super. at 420, 464 A.2d at 392. *290 In addition, because of several requests for continuances and defense counsel's unavailability as a result of other trial commitments, appellant concedes, in his brief, that two-hundred-twenty-eight days are excludable from the computation. See Pa.R.Crim.P. 1100(d)(3)(i) and (ii).
In response to the judicial delay, the Commonwealth filed a written petition requesting additional time for trial premised on the preparation time necessary to accommodate the consolidation of the six cases. The petition was timely filed and served on appellant and it maintained how the Commonwealth was diligent in attempting to bring appellant to trial despite the court's and defense counsel's scheduling problems (the court's four month unavailability and the withdrawal of initial counsel). See Commonwealth v. Colon, 317 Pa.Super. at 420, 464 A.2d at 395. The court granted the petition.
On three subsequent occasions, the Commonwealth orally amended its petition. The grounds for the amendments included a defense request for a continuance, unavailability of defense counsel, and judicial delay. See Commonwealth v. Smith, 348 Pa.Super. at 91, 501 A.2d at 661. The court granted the amendments and again extended the date for trial. We note that the Commonwealth's oral amendments were not separate entities from the original petition, but requests to enlarge the period of time as a primary result of the court's and defense counsel's scheduling problems. See id. Thus, because the Commonwealth previously filed a written petition meeting all the requirements of Rule 1100, the oral amendments were permissible. See id.
Accordingly, because the amendments were not new requests but "merely . . . reasonable amendment[s] to the existing petition which previously established the Commonwealth's diligence and provided appellant with the requisite notice." id., the Commonwealth's oral amendments were not improper.
Additionally, appellant's claim is without substance because after deducting the excludable and extendable time from the period of time between the filing of the complaint and the commencement of trial, appellant was tried well *291 within one-hundred-eighty days. Thus, the court correctly denied appellant's motion to dismiss under Rule 1100. See id.
Appellant next contends that the court erred in granting the Commonwealth's motion to consolidate the six cases pending against him. Appellant argues that the Commonwealth failed to offer proof that all the crimes were the product of the same common scheme. According to appellant he was prejudiced by the consolidation of his six separate cases, because it permitted evidence of unrelated crimes to be presented to the jury. Because the court improperly granted the motion to consolidate, appellant believes that he is entitled to six new individual trials. We disagree.
The decision to grant or deny a motion for consolidation of charges for trial is a matter within the discretion of the trial court judge, and that decision shall not be reversed absent a manifest abuse of discretion or a showing of prejudice and clear injustice to the defendant. Commonwealth v. Peppers, 357 Pa.Super. 270, 274, 515 A.2d 971, 973 (1986) (citations omitted); Commonwealth v. Thomas, 361 Pa.Super. 1, 6, 521 A.2d 442, 445 (1987). The consolidation of indictments or informations for trial is encouraged when the needs of judicial economy will be best served. Commonwealth v. Thomas, 361 Pa.Super. at 6, 521 A.2d at 445 (1987).
The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at trial for another. The present rule in Pennsylvania [Pa.R.Crim.P. 1127] is that consolidation is proper . . . if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; [or] (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other.
Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982) (citations omitted).
Although as a general rule evidence of crimes unrelated to the one charged are inadmissible, it is well-established that evidence of one crime is admissible in limited circumstances *292 against a defendant where it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial. Commonwealth v. Robinson, 361 Pa.Super. 87, 89-90, 521 A.2d 940, 941 (1987) (citing Commonwealth v. Peterson, 453 Pa. 187, 197-193, 307 A.2d 264, 269 (1973), quoted in Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295, 299 (1986)). Generally, when the evidence is relevant and concerns one of these five issues, the prejudicial effect to the defendant may be outweighed by the probative value. Commonwealth v. Clayton, 516 Pa. 263, 276 n. 8, 532 A.2d 385, 392 n. 8 (1987).
Here, we are satisfied that there is sufficient similarity between the cases to justify consolidation and admission of evidence regarding each at the trial for the other for the purpose of showing a common scheme. Factually, all the offenses are of the same character within the meaning of Rule 1127(A)(1). Each of the six offenses was a robbery and involved identical methods. The Commonwealth offered proof of the following common elements of the six separate offenses: Each of the six victims was a deliveryman in the process of making a delivery in the early afternoon hours. All of the offenses occurred during a five-and-one-half week period and all took place within the same vicinity. All the victims were robbed at knifepoint by a single actor and had money taken directly from their pants pockets.
Consolidation is proper "where the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other." Pa.R. Crim.P. 1127A(1)(a); See Commonwealth v. Galloway, 302 Pa.Super. at 154, 448 A.2d at 573. Based on the foregoing facts, the crimes in question amount to a series of events sharing the same common features and creating a sufficient likelihood that the same individual was responsible for the crimes. See Commonwealth v. Clayton, 516 Pa. at 276, *293 532 A.2d at 393. Thus, the offenses are sufficiently linked as to be admissible as evidence in each of the other trials. See Commonwealth v. Galloway, 302 Pa.Super. at 154, 448 A.2d at 573. Moreover, because evidence of each offense would be permissible and relevant for the purpose of showing a common design, appellant's claim that he was prejudiced by the introduction of evidence of all six offenses consolidation is without merit. See Commonwealth v. Clayton, 516 Pa. at 276, 532 A.2d at 393. Accordingly, we conclude that the lower court did not abuse its discretion in granting the motion to consolidate. See Commonwealth v. Peppers, 357 Pa.Super. at 274-75, 515 A.2d at 973.
Next, appellant contends that the lower court erred in refusing to suppress the items seized from his bedroom during an invalid consent search. Specifically, appellant argues that the search was defective on three grounds. First, appellant contends that because he is an adult, his mother was unable to consent to a search of his room. Second, appellant contends that when the police officers asked for permission to search the premises, they failed to inform his mother that if she did not consent, a warrant would be obtained in order to search the premises. Third, appellant contends that the police officers failed to "memorialize" the search until after its completion. We will address these contentions seriatim.
Initially, appellant argues that because he is an adult his mother lacked authority to consent to the search and thus, the search was invalid. We disagree.
The law is well-settled that a warrantless search may be made with the voluntary consent of a third party who possesses "common authority over or other sufficient relationship to the premises or effects sought to be inspected." Commonwealth v. Lowery, 305 Pa.Super. 66, 73, 451 A.2d 245, 248 (1982) (citing United States v. Matlock, 415 U.S. 164, 168, 172, 94 S.Ct. 988, 991-92, 993-94, 39 L.Ed.2d 242 (1974)).
Common authority . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to *294 recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Id. 305 Pa.Super. at 73, 451 A.2d at 248 (quoting United States v. Matlock, 415 U.S. at 173, n. 7, 94 S.Ct. at 993-94, n. 7) (citations omitted). Our courts have held that a family member has the common authority to permit a search of the family home unless one family member has manifested and exhibited an intent to exclude others from certain areas of the home. Commonwealth v. Van Jordan, 310 Pa.Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa.Super. 109, 115-16, 359 A.2d 811, 814 (1976). Absent such an intention, where there exists joint access or control, there can be no reasonable or legitimate expectation of privacy and thus, a warrantless search may be made with the voluntary consent of a third party. Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 248.
In this analysis, we note that when the findings of the suppression court are sufficiently supported by the record, they will not be disturbed on appeal. Commonwealth v. Lowery, 305 Pa.Super. at 69, 451 A.2d at 246.
Here, appellant mistakenly challenges the validity of the search on the basis that his status as an adult precludes his mother from giving her consent to a search of their house. The law is very clear, however, that the determination of whether a third party may consent to a warrantless search does not depend on the age of the nonassenting party but on the "common authority" or "special relationship" shared by the cohabitants of the premises. See id., 305 Pa.Superior Ct. at 73, 451 A.2d at 248.
In this case, our review of the record discloses that appellant resided with his mother and family in their home. See Motion to Suppress at 164, 176. When the police asked appellant's mother for her permission to search the premises, she voluntarily consented to the search. See id. at 165. Subsequently, at the suppression hearing, appellant neither *295 claimed nor introduced evidence that his mother did not share dominion over the premises or that he had expressed an intent to exclude persons from his bedroom. See Motion to Suppress at 164-179. See also Commonwealth v. Van Jordan, 310 Pa.Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa.Super. 109, 115-16, 359 A.2d 811, 814 (1976). Moreover, this court has held that, "a parent has the authority to consent to a search of his [or her] child's quarters in the parent's home", unless the child has manifested an expectation of privacy. Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 247-48 (citing Commonwealth v. Reiland, 241 Pa.Super. at 115, 359 A.2d at 814). Accordingly, because appellant's mother possessed "common authority" over the premises and because appellant did not manifest an expectation of privacy, we conclude that the lower court did not err in finding that the consent search was not invalid on this ground.
Appellant's second argument is that the police were required to inform his mother that without her consent, a search warrant would be issued. Appellant fails to cite any legal authority for this proposition nor does he present an argument on this point. Accordingly, because this issue is not addressed in the argument portion of appellant's brief, appellant has failed to comply with the briefing requirement pursuant to Pa.R.A.P. 2119, and has waived this claim. See Commonwealth v. Colbert, 476 Pa. 531, 534-35 n. 1, 383 A.2d 490, 491-92 n. 1 (1978) (claim waived when no argument presented in appellate brief).
Appellant's third argument is that the police were required to have appellant's mother sign a consent form before searching appellant's home. According to appellant, the police are required by Pa.R.Crim.P. 2008 to memorialize a search before conducting it and then provide a copy of the receipt listing any property seized from the premises to the consenting party. Appellant argues that the failure of the police to follow this procedure invalidates the search of his home. We disagree.
*296 Under Pennsylvania law, a valid consent search requires that the consent be voluntary and not the result of duress, force or coercion. Commonwealth v. Markman, 320 Pa. Super. 304, 314, 467 A.2d 336, 341-42 (1983). There is no additional requirement that a consent search be memorialized by a signed written consent. Id.
For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions.
Id., 320 Pa.Superior Ct. at 315, 467 A.2d at 342 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 231-32, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973)).
Here, appellant is misguided in his assertion that the directives of Rule 2008 apply to this case. As the Commonwealth correctly points out in its brief, see Brief for Appellee at 18-19, Rule 2008 pertains only to searches conducted pursuant to a warrant. See Pa.R.Crim.P. 2008. See also Commonwealth v. Markman, 320 Pa.Super. at 315, 467 A.2d at 342. In this case, the search was consented to by appellant's mother and, therefore, the police were not required to have the consenting party sign an acknowledgment form either before or after the search was conducted. See id. Because Rule 2008 does not apply to consent searches, appellant was neither prejudiced nor were his rights violated when the police drafted a consent form after the completion of the search and had appellant's mother sign the form at that time.
Accordingly, the trial court properly denied appellant's suppression motion and permitted the introduction into evidence of items seized during the search.
Appellant further contends that the court below committed reversible error when it excused a juror, during individual voir dire, after the juror complained that she was "too nervous" to sit on the jury. Appellant argues that the court's removal of the juror was an abuse of discretion and *297 a denial of his right to a jury of his own selection and that a new trial is warranted. We disagree.
It is well-settled that the discharge of a juror is within the sound discretion of the court and that determination will not be reversed absent a palpable abuse of discretion. Commonwealth v. Graves, 316 Pa.Super. 484, 492, 463 A.2d 467, 471 (1983); Commonwealth v. Black, 474 Pa. 47, 57, 376 A.2d 627, 632 (1977).
In this case, after five jurors had been selected from the venire, the court continued the individual voir dire of the remaining venirepersons. At that time, the court crier advised the court that one of the selected jurors, Kecia Brinkley, voiced her concern that she was too nervous to sit on the jury. See N.T. October 7, 1987 at 34. Thereupon, over defense counsel's objection, the court excused Kecia Brinkley from the jury. See id. In its opinion, the court stated that the juror could not fulfill her role as a competent juror and to ensure that appellant received a fair and impartial trial, it excused the juror as a precautionary measure. See Trial Court Opinion at 4. It was well within the court's discretion to excuse the juror on the basis that she could not function in her capacity as a member of the jury. See Commonwealth v. Graves, 316 Pa.Super. at 492, 463 A.2d at 471; Commonwealth v. Black, 474 Pa. at 57, 376 A.2d at 629.
Moreover, appellant did not object to any of the other jurors selected from the venire after Kecia Brinkley was excused. See N.T. Jury Voir Dire October 7, 1987 at 34-40. Furthermore, appellant has not alleged that any of the jury members should have been stricken for cause. Accordingly, because appellant received a fair trial by an impartial jury, we conclude that the lower court did not abuse its discretion in excusing Kecia Brinkley because of her inability to perform as a juror. See Commonwealth v. Graves, 316 Pa.Super. at 492, 463 A.2d at 471; Commonwealth v. Black, 474 Pa. at 57, 376 A.2d at 629.
Next, appellant contends that the court erred in denying his request for a jury instruction on the issue of the court's denial of his motion for a pre-trial line-up. *298 Specifically, appellant argues that the jury should have been given a Sexton charge to cure the suggestiveness of his in-court identification. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979).
In Commonwealth v. Sexton, the Pennsylvania Supreme Court held that there is no constitutional right to a pre-trial line-up. Id., 485 Pa. at 25, 400 A.2d at 1292 (1979). In those circumstances, however, where a witness had no opportunity to view the defendant prior to making an in-court identification, the court stated that the harm caused by the suggestive in-court confrontation could be remedied by advising the jury that the defendant sought and was denied an opportunity for a more objective setting than the one from which the identification introduced at trial emanated. Id., 485 Pa. at 25, 400 A.2d at 1293.
Here, the lower court properly denied appellant's request for a Sexton charge. The justification for a Sexton charge is that because of the absence of any pre-trial identification, the suggestiveness of the in-court identification becomes overwhelming and must be tempered with a cautionary instruction. In Sexton, the sole evidence linking the defendant to the crime was the in-court identification testimony of two witnesses. See id., 485 Pa. at 25, 400 A.2d 1293. In the instant case, however, after independently viewing a pre-trial photographic array, each of the six victims identified appellant. See N.T. October 8, 1987 at 188-89. The pre-trial photographic identification presented an opportunity for the victims to view appellant in an objective setting outside of the courtroom. Clearly, the circumstances that existed in Sexton were not present in this case and a Sexton charge would have been inappropriate. Accordingly, because there was a pre-trial identification, the victim's in-court identification of appellant had an independent basis and was not unduly suggestive. See Commonwealth v. Butler, 354 Pa.Super. 533, 543-44, 512 A.2d 667, 673 (1986) (presence of other identification evidence negated need for Sexton charge). We, therefore, conclude that lower court did not abuse its discretion in denying appellant's request for a Sexton charge.
*299 Finally, appellant contends that the sentencing court abused its discretion by imposing an excessive sentence. This claim is waived. To preserve a sentencing claim challenging the discretionary aspects of sentencing for our review, an appellant must comply with the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Commonwealth v. Krum, 367 Pa.Super. 511, 520, 533 A.2d 134, 135 (1987), this Court, sitting en banc, held that an appellant's failure to comply with the requirements of Tuladziecki and Pa.R.A.P. 2119(f), if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 520, 533 A.2d at 138.
Here, appellant has failed to comply with Rule 2119(f) and the requirements of Tuladziecki by not filing a statement of reasons for allowance of appeal setting forth his sentencing claim. The Commonwealth has objected to this defect in appellant's brief. See Brief for Appellee at 12. Accordingly, because appellant failed to comply with Rule 2119(f) and Tuladziecki, and because the Commonwealth has objected, appellant's sentencing claim is waived. See Commonwealth v. Krum, 367 Pa.Super. at 520, 533 A.2d at 135.
For the reasons set forth above, we affirm the judgment of sentence
JUDGMENT AFFIRMED.
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632 F.Supp. 842 (1985)
Thomas PITCAVAGE, Sr., Administrator of the Estate of Karen Pitcavage, Deceased; Thomas Pitcavage, Sr., Administrator of the Estate of Thomas Pitcavage, Jr., Deceased; Melissa Pitcavage a minor, by Thomas Pitcavage, her parent and natural guardian and Thomas Pitcavage, Sr., Individually and in his own right, Plaintiffs,
v.
MASTERCRAFT BOAT COMPANY, Defendant and Third-Party Plaintiff.
and
BAJA BOAT COMPANY, INC., Defendant
v.
Denis J. ABRAMOVAGE
and
Mark D. TURNER and Ralph Turner, Third-Party Defendants and Fourth-Party Plaintiffs
v.
Leonard J. PALLIS, Jr., Fourth-Party Defendant.
No. 85-560.
United States District Court, M.D. Pennsylvania.
September 23, 1985.
On Motion to Strike September 30, 1985.
On Motion to Dismiss October 16, 1985.
*843 *844 *845 Perry J. Shertz, Stephen J. Fireoved, Rosenn, Jenkins & Greenwald, Wilkes-Barre, Pa., for plaintiffs.
Edward B. Joseph, Ominsky, Joseph & Welsh, Philadelphia, Pa., Z.R. Bialkowski, Bialkowski, Fine & Bialkowski, Scranton, Pa., for Mastercraft Boat Co.
Edward C. German, Dean F. Murtagh, Germann, Gallagher & Murtagh, Philadelphia, Pa., for Baja Boats, Inc.
Charles A. Shaffer, Wilkes-Barre, Pa., for Ralph Turner and Mark D. Turner.
Anthony B. Panaway, Robert T. Panowicz, Wilkes-Barre, Pa., for Leonard J. Pallis, Jr.
MEMORANDUM AND ORDER
NEALON, Chief Judge.
Plaintiffs filed two (2) diversity actions against Defendants Mastercraft Boat Company ("Mastercraft") and Baja Boats, Inc. ("Baja") seeking to be compensated for injuries sustained when a Mastercraft boat allegedly struck a Baja boat. Jurisdiction is proper pursuant to 28 U.S.C. § 1332. The Mastercraft boat was owned by Ralph Turner and Mark D. Turner and operated by Denis J. Abramovage. The Baja boat was owned and operated by Leonard J. Pallis. In their complaint, plaintiffs seek recovery on theories of negligence, strict liability and breach of warranty. Defendant Mastercraft filed a third-party complaint pursuant to Fed.R.Civ.P. 14(a) against Ralph Turner, Mark D. Turner and Denis J. Abramovage on June 11, 1985. Mastercraft alleges that the third-party defendants negligently caused or contributed to the accident so as to be liable to Mastercraft for any or all sums which may be adjudged due to plaintiffs. Jurisdiction over this claim is proper pursuant to the court's ancillary jurisdiction. Presently before the court is plaintiffs' Motion to Strike the Third-Party Claim. Defendant Mastercraft has opposed the motion and the matter is now ripe for disposition. For the reasons set forth below, the motion will be denied.
DISCUSSION
Fed.R.Civ.P. 14(a) provides that a defendant may implead "a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." In order to utilize the procedure of Rule 14, a third-party plaintiff must demonstrate some substantive basis for its claim. Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D.Pa.1983). Rule 14(a) is procedural and does not create any right to seek indemnification or contribution. Cook v. Cook, 559 F.Supp. 218 (E.D.Pa.1983). The third-party plaintiff must allege that the third-party defendant is or may be liable to it for all or part of the plaintiff's claim against the third-party plaintiff. See Fed.R.Civ.P. 14(a). Impleader is not proper when the third-party plaintiff alleges only that the third-party defendant is solely liable to the plaintiff. See Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D.Pa.1977).
In their briefs, plaintiffs contend that Mastercraft is asserting that the third-party defendants are solely liable to plaintiffs. See Document 21 of Civil No. 85-0560 and Document 17 of Civil No. 85-0561. An examination of the third-party complaint, however, reveals that Mastercraft seeks contribution and/or indemnity from the third-party defendants. See Document 11 of Civil No. 85-0560 and Document 10 of Civil No. 85-0561. Therefore, Mastercraft asserts claims cognizable under Rule 14(a) if it may be entitled to contribution or indemnity from the third-party defendants. See O'Mara Enterprises, Inc. v. Mellon Bank, 101 F.R.D. 668 (W.D.Pa.1983).
Plaintiffs maintain that Mastercraft has no substantive basis to recover contribution or indemnification from the third-party defendants. In making this determination, the court, sitting in diversity, is bound to apply the law of Pennsylvania.[1]See Erie *846 Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Mastercraft's right to contribution from the third-party defendants depends on the determination of whether Mastercraft and the third-party defendants can be considered joint tortfeasors. See Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D.Pa. 1983).
Pennsylvania law permits contribution among joint tortfeasors. See Pa.Cons. Stat.Ann. tit. 42, § 8324(a) (Purdon 1982). A joint tortfeasor "means two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." Id. at § 8322. To be a joint tortfeasor, "the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury." Lasprogata v. Qualls, 263 Pa.Super. 174, N. 4, 397 A.2d 803, 805 n. 4 (1979). In the present case, plaintiff is claiming, inter alia, that Defendant Mastercraft caused plaintiff's injuries. Mastercraft, in turn, alleges that the third-party defendants contributed to or caused plaintiffs' injuries. Thus, Mastercraft maintains that the third-party defendants are liable to Mastercraft for all or part of the plaintiffs' claim.
Plaintiffs rely on Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D.Pa. 1983), in support of their position. In Robbins, this court held that a manufacturer, against whom a claim based on the crash-worthiness doctrine was made, could not join the driver of an automobile involved in the accident as a third-party defendant. In a footnote, however, this court stated:
We do not perceive the analysis of `second collision' or `enhanced injury' cases to track the legal lore surrounding concurrent tortfeasor actions which, in the concurrence's formulation, `have combined contemporaneously to cause the injuries.' (citation omitted). `Second collision' cases do not implicate `clearly established double fault' for the same occurrence. ... Analogies to concurrent actions combining to cause a single impact are simply not applicable.
Id. at 40, n. 3 citing Huddell v. Levin, 537 F.2d 726 (3d Cir.1976). The present case does not involve two "separate collisions." On the other hand, as Mastercraft contends, this case is more closely akin to the situation when two alleged tortfeasors combine contemporaneously to cause injury.
The Pennsylvania Superior Court's decision in Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979), tends to support Mastercraft's position. In Lasprogata, the court held that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. More specifically, the court stated "the acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other's acts, and each breaching a different duty owed to the injured plaintiff." Id. at 179, 397 A.2d at 805. While it can be argued that the third-party defendants acted at different times, etc., Mastercraft is alleging that if it is liable, then the third-party defendants either acted together with it or contributed to causing plaintiff's injuries. See Lasprogata, supra. If the tortious conduct of two (2) or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently. See Capone v. Donovan, 332 Pa. Super. 185, 480 A.2d 1249 (1984).
Plaintiffs assert that the third-party complaint should be stricken because it is based on a different legal theory than relied on by plaintiffs. For purposes of Rule 14, it is immaterial that the liability of the third party is not identical to or rests *847 on a different theory than that underlying plaintiffs' claim. Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D.Pa.1977); see also Crude Crew v. McGinnis & Associates, Inc., 572 F.Supp. 103 (E.D.Wis.1983) (impleader proper; not necessary that claim alleged in third-party complaint be based on same theory as original complaint if both claims arise out of same occurrence). The precise issue before this court is whether under Pennsylvania law, a defendant who may be liable to a plaintiff on a strict liability theory would be entitled to contribution from additional defendants who may be found negligent, particularly when the alleged negligent defendant is a purchaser or user of a product which is later determined to be defective.[2]
In Stewart v. Uniroyal, Inc., 72 Pa. D & C 2d 206 (Allegheny Co.1975), aff'd per curiam, 238 Pa.Super. 726, 356 A.2d 821 (1976), the court relied on Chamberlain and permitted contribution between a § 402 tortfeasor and a negligent tortfeasor. In Stewart, the jury found that the defective product and the negligent defendants concurrently caused plaintiff's harm. Thus, the common liability between all defendants was affirmed. Id. Similarly, in Capuano v. Echo Bicycle Co., 27 Pa. D & C 3d 524 (Northampton Co.1982), the court relied on Chamberlain[3] and applied the Uniform Contribution Among Tortfeasors Act[4] ("UCATA") to determine the contribution rights between a strictly liable and a negligent defendant. The court reasoned that to refuse contribution in this type of case would be to give absolutely no effect to the UCATA. "The theory is that as between the two tortfeasors the contribution is not a recovery for the tort but the enforcement of an equitable duty to share liability for the wrong done." Id. at 528.
In the present case, the third-party defendants may be liable to Mastercraft for contribution if it is later determined that the third-party defendants "contributed" to the accident.[5] It is not necessary that the third-party defendants be automatically liable for all or part of plaintiffs' *848 claim. Impleader is proper if under some construction of facts which might be adduced at trial, recovery by the third-party plaintiff would be possible. See Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D.Pa.1977).
Finally, plaintiffs maintain that the third-party suit will prejudice plaintiffs' case against the original Defendant Mastercraft.[6] Plaintiffs contend that they should be able to proceed with their case without having a legal issue, which should not be considered by the jury, becoming a potential obstacle to recovery. See Document 38 of the Record. This argument fails for reasons already discussed. See n. 5 supra at 847-48. The issue of the third-party defendants' negligence may bear on the causation question in plaintiffs' case, see Herman v. Welland Chemical, Ltd., 580 F.Supp. 823 (M.D.Pa.1984), and, in any event, can be effectively separated from the legal issues in the main case by use of proper jury instructions. See Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir.1979). Plaintiffs' interpretation of Rule 14(a) would require separate suits anytime different legal standards apply to the main case and the third-party suit. "Rule 14 should be liberally construed to effectuate its intended purpose of accomplishing in one proceeding the adjudication of the rights of all persons concerned in the controversy and to prevent the necessity of trying several related claims in different lawsuits."[7]Smithkline Beckman Corp. v. Pennex Products Co., Inc., 103 F.R.D. 539, 541 (E.D.Pa.1984).
The facts of the two (2) claims are intertwined. The third-party defendants' actions are closely related to the claims involving the design, manufacture, etc., of the two (2) boats. Many of the same witnesses will be required to determine what caused the aforementioned accident. In sum, this case involves the actions of several alleged joint tortfeasors. Cf. Tesch v. United States, 546 F.Supp. 526 (E.D.Pa. 1982). Under Pennsylvania law, Mastercraft's claim against the third-party defendants is derivative of or determined by the outcome of plaintiffs' claims against Mastercraft. Therefore, the third-party complaint will not be stricken.
ON MOTION TO STRIKE
Plaintiffs commenced this action against Defendants Mastercraft Boat Company *849 ("Mastercraft") and Baja Boat, Inc. ("Baja") on April 23, 1985 pursuant to 28 U.S.C. § 1332. Plaintiffs filed an amended complaint against both defendants on June 18, 1985, asserting claims under the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. On June 11, 1985, Mastercraft filed a third-party complaint against Denis J. Abramovage, Mark D. Turner and Ralph Turner. Third-party Defendant Ralph Turner ("Turner") filed an Answer to the Third-Party Complaint on July 5, 1985.[1] In the Answer, Turner, inter alia, asserted a cross-claim and counterclaim against the original plaintiffs. Plaintiffs filed a Motion to Strike, or in the Alternative, for a More Definite Statement to Turner's cross-claim and counter-claim. Turner has opposed this motion and the matter is now ripe for disposition. For the reasons set forth below, plaintiffs' Motion to Strike, or in the Alternative for a More Definite Statement will be granted as to the cross-claim but denied as to the third-party's claim against plaintiffs.
DISCUSSION
Fed.R.Civ.P. 13(g) expressly provides that "a pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein...." Cross-claims are filed against co-parties and not against adverse parties. Stahl v. Ohio River Co., 424 F.2d 52 (3d Cir.1970). Clearly, in this case, plaintiffs are not co-parties with Turner. See Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231 n. 8 (3d Cir.1976), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976). Furthermore, Turner's claims against plaintiffs "by way of contribution or indemnity" are more properly asserted as defenses to plaintiffs' claim. See Fed.R.Civ.P. 14(a). In fact, Turner does assert similar defenses in his answer. See Document 16 of the Record. Contribution exists between joint tortfeasors, see Pa.Cons.Stat.Ann. tit. 42, § 8324(a), and it is inconceivable that plaintiffs could be considered joint tortfeasors in bringing about their own injuries.[2]See Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979). Therefore, Turner's cross-claim against plaintiffs will be stricken.[3]
Turner's counterclaim seeks recovery from, inter alia, plaintiffs for damages allegedly caused to Turner's boat. Fed.R. Civ.P. 14(a) states "the third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of plaintiffs' claim against the third-party plaintiff." Turner's claim against plaintiffs is not, however, a counterclaim. Plaintiffs have asserted no claim against Turner. Therefore, Turner technically cannot assert a counterclaim against plaintiffs. See Rosario, supra; 6 C. Wright & A. Miller, Federal Practice and Procedure § 1444 at 234. Turner seeks to assert a new claim against plaintiffs.
The third-party defendants' claim against a plaintiff "arises out of" the subject matter of plaintiffs' claim against the third-party plaintiff when the claims involve some of the same evidence, facts, and *850 issues. See Borden Co. v. Sylk, 42 F.R.D. 429 (E.D.Pa.1967); Wright & Miller, supra at § 1458. Furthermore, "persuasive authority also holds that a third-party defendant ... may bring claims authorized by Fed.R.Civ.P. 14(a) against the original plaintiff notwithstanding the lack of an independent basis of jurisdiction for such claims." Finkle v. Gulf & Western Manufacturing Co., 744 F.2d 1015, 1018 (3d Cir. 1984). It is efficient and fair to allow the third-party defendant to answer plaintiffs's suit in one action in federal court with its own claims that arise from the same transaction or occurrence. Id.
Contrary to plaintiffs' contentions, Turner's claim against plaintiffs "arises out of the transaction or occurrence that is the subject matter of the plaintiffs' claim against the third-party plaintiff." In essence, the occurrence that is the subject matter of plaintiffs' claim is the collision of two (2) boats. Any damage allegedly caused to Turner's boat arose out of the same occurrence. As such, much of the same evidence will be required to establish both claims. Therefore, Turner's claim against plaintiffs will not be stricken.
Finally, plaintiffs contend that Turner's cross-claim and counterclaim are "so vague and ambiguous as to prohibit plaintiffs from framing responsive pleadings thereto." Motions for more definite statements are not viewed with favor and are to be granted only if the allegations contained in the pleading are so vague that defendant cannot reasonably be expected to frame a response to it. See Wilson v. United States, 585 F.Supp. 202 (M.D.Pa. 1984). In the case sub judice the counterclaim is brief but clear.[4] Turner claims that plaintiffs' negligence, inter alia, caused damage to his boat in the amount of One Thousand Five Hundred Dollars ($1,500.00). Certainly, plaintiffs are adequately informed of the accusations against them. Wilson v. United States, supra. Therefore, plaintiffs' Motion for a More Definite Statement will be denied.
An appropriate Order will enter.
ORDER
In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
(1) Plaintiffs' Motion to Strike Turner's Cross-Claim against Plaintiffs is granted.
(2) Plaintiffs' Motion to Strike Turner's Counterclaim against Plaintiffs is denied.
(3) Plaintiffs' Motion for a More Definite Statement is denied.
ON MOTIONS TO DISMISS
Plaintiffs commenced these cases against Defendants Mastercraft Boat Company ("Mastercraft") and Baja Boat, Inc. ("Baja") seeking to be compensated for injuries sustained when a Mastercraft boat allegedly struck a Baja boat. Jurisdiction is proper pursuant to 28 U.S.C. § 1332. Plaintiffs filed an amended complaint setting forth a cause of action pursuant to the Consumer Product Safety Act ("CPSA"), 15 U.S.C. § 2072, on June 18, 1985. See Document 14 of Civil No. 85-0560 and Document 13 of Civil No. 85-0561. Defendants Baja and Mastercraft filed Motions to Dismiss the CPSA counts on July 25, 1985 and August 2, 1985 respectively. See Documents 26 and 30 of Civil No. 85-0560 and Documents 24 and 26 of Civil No. 85-0561. Both defendants filed briefs in support of their motions. Plaintiffs filed a brief in opposition to Mastercraft's motion and a brief in opposition to Baja's motion on August 20, 1985. See Documents 39 and 40 of Civil No. 85-0560 and Documents 33 and 34 of Civil No. 85-0561. Defendants Baja and Mastercraft filed reply briefs in support of their motions on September 6, 1985 and September 11, 1985 respectively. See Documents 44 and 45 of Civil No. 85-0560 and Documents 39 and 40 of Civil No. 85-0561. *851 By letter dated September 20, 1985, plaintiffs advised the court that they will not seek leave to file a responsive brief in either case. The matter is now ripe for disposition. For the reasons set forth below, defendants' motions will be granted and Counts I(D) and II(D) of plaintiffs' six (6) causes of action will be dismissed.
DISCUSSION
In ruling upon a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true all of the well-pleaded allegations of the complaint. See Banghart v. Sun Oil Co., 542 F.Supp. 451 (E.D.Pa.1982). Furthermore, the allegations must be construed in a light most favorable to the plaintiff. Id. The claim should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle plaintiff to relief. Id. See Redgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230 (D.Mass.1983).
In the case sub judice, plaintiffs seek both compensatory and punitive damages based on the CPSA.[1] In essence, defendants argue that the CPSA does not apply to boats and, therefore, plaintiffs cannot maintain an action based upon a violation of the Act. In order for a person to maintain a claim pursuant to § 2072 of the CPSA, a violation concerning a "consumer product" as defined by the Act must exist.[2]See e.g., 15 U.S.C. § 2064. Thus, the issue is the authority of the CPSC to regulate the boats involved in this case.
The CPSA defines the term "consumer product" and specifically provides such term does not include:
*852 (G) boats which could be subjected to safety regulation under the Federal Boat Safety Act of 1971; vessels, and appurtenances to vessels (other than such boats), which could be subjected to safety regulation under title 52 of the Revised Statutes or other marine safety statutes administered by the department in which the Coast Guard is operating; and equipment (including associated equipment, as defined in section 3(8) of the Federal Boat Safety Act of 1971) to the extent that a risk of injury associated with the use of such equipment on boats or vessels could be eliminated or reduced by actions taken under any statute referred to in this subparagraph.
15 U.S.C. § 2052(a)(1)(G). The Consumer Product Safety Commission ("CPSC") recognizes that boats are exempted from the Commission's authority. See infra at 852 and Documents 26 and 24 of Civil No. 85-0560 and Civil No. 85-0561 respectively Exhibit A. Concededly, there is no case authority that addresses the issue of whether boats similar to the Mastercraft and Baja boats are covered by the CPSA. It is inconceivable, however, that a cause of action under § 2072 can exist if the CPSC lacks the authority to regulate the boats involved in this case.
Plaintiffs' basic contention is that the aforementioned exclusion does not summarily exclude all boats from the CPSA. Plaintiffs maintain that the regulations referred to in § 2052 (a)(1)(G) must be examined in order to determine whether the particular boats involved are excluded. Generally, boats, inter alia, are excluded from the CPSC's authority because they are covered by other regulatory statutes.[3]See e.g., Kaiser Aluminum & Chemical Corp. v. United States Consumer Product Safety Commission, 574 F.2d 178, 180 n. 2 (3d Cir.1978), cert. denied, 439 U.S. 881, 99 S.Ct. 218, 58 L.Ed.2d 193 (1978). Basically, the United States Coast Guard-Office of Boating Safety "regulates and sets mandatory safety standards for boats and associated equipment...." See Documents 26 and 24 of Civil No. 85-0560 and Civil No. 85-0561 respectively-Exhibit A at 3.
Section 2052(a)(1)(G) excludes, inter alia, those boats which "could be subjected to safety regulations under ... other marine safety statutes administered by the department in which the Coast Guard is operating...." The U.S. Coast Guard contains an Office of Boating Safety which apparently could establish safety regulations applicable to the Mastercraft and Baja boats. In fact, the CPSC acknowledges that "boats are not under the jurisdiction of the Consumer Product Safety Commission." See Document 44 of Civil No. 85-0560 and Document 39 of Civil No. 85-0561 (Affidavit of Dean F. Murtagh, Esq.) attached letter from the U.S. Consumer Product Safety Commission. Furthermore, the CPSC recognizes that boats and boat related accidents are under the jurisdiction of the U.S. Coast Guard. Id. See supra at 851-852. Plaintiffs point to nothing which specifically denies the Coast Guard's or the Department of Transportation's authority to regulate the boats involved in this case.[4] In any event, plaintiffs are unable to predicate liability on a violation of the CPSA when the CPSC itself acknowledges that boats are not subject to *853 its authority.[5] Therefore, defendants' motions will be granted.
An appropriate Order will enter.
NOTES
[1] In Pennsylvania, indemnification is limited to those situations in which defendants' liability is secondary or when an indemnification contract exists. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Apparently, no such contract exists in this case. Furthermore, Mastercraft's liability, if any, cannot be said to rest on constructive or implied fault. Id. Therefore, the court proceeds with the analysis as if Mastercraft seeks contribution from the third-party defendants. See TVSM, Inc. v. Alexander & Alexander, Inc., 583 F.Supp. 1089 (E.D.Pa. 1984); Tesch v. United States, 546 F.Supp. 526 (E.D.Pa.1982).
[2] Several federal courts sitting in Pennsylvania have considered this issue. In Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir.1973), the Third Circuit Court of Appeals interpreted Pennsylvania law and enforced a manufacturer's right to contribution from a negligent purchaser/user even though the manufacturer's liability was based on strict liability. See also W.D. Rubright Co. v. International Harvester Co., 358 F.Supp. 1388 (W.D.Pa.1973) (contribution permitted between joint tortfeasors when one is responsible under strict liability rule for product defect and other is responsible for an act of negligence; two tortfeasors acted as concurrent causes); Walters v. Hiab Hydraulics, Inc., 356 F.Supp. 1000 (M.D.Pa.1973) (§ 402A does not deprive the manufacturer of its right to contribution from a third party whose negligence was a proximate cause of the injury.) Contra Rhoads v. Ford Motor Co., 374 F.Supp. 1317 (W.D.Pa.1974), aff'd 514 F.2d 931 (3d Cir.1975) (contribution only among parties in pari delicto; no contribution for defendant manufacturer from third-party consumer). In Bike v. American Motors Corp., 101 F.R.D. 77 (E.D.Pa.1984), the court noted that the Chamberlain decision preceded Lasprogata and stated that the Chamberlain court's prediction of Pennsylvania law was undermined. The Bike court felt that the separation of negligence from product liability cases leads to the determination that the Joint Tortfeasors Act is inapplicable. Id. at 83. Thus, the manufacturer's motion to file a third-party complaint against the driver to allege the driver's negligence was denied. Id. See also Conti v. Ford Motor Co., 578 F.Supp. 1429 (E.D.Pa. 1983), rev'd on other grounds, 743 F.2d 195 (3d Cir.1984) (strict liability of manufacturer is not on same legal plane as negligence of user; Joint Tortfeasors Act inapplicable). In Conti, the Third Circuit Court of Appeals specifically did not address this issue. Clearly, the lack of significant Pennsylvania authority has caused a plethora of divergent views on the subject among federal courts interpreting Pennsylvania law.
[3] The court found the Stewart case to be significant in this regard but noted that no Pennsylvania appellate court authority resolving the issue could be found. This court, however, deems the Superior Court's per curiam affirmance of Stewart to be noteworthy absent any other pronouncement in Pennsylvania. In support of its decision, the Capuano court also relied on the federal court opinions in Rubright, supra and Walters, supra.
[4] Pa.Cons.Stat.Ann. tit. 42, §§ 8321-8327 (Purdon 1982).
[5] The court is cognizant of plaintiff's reliance on Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir.1979) and Eshbach v. W.T. Grant's & Co., 481 F.2d 940 (3d Cir.1973). These cases, however, concern the efficacy of certain jury instructions given in cases when a defendant manufacturer seeks to avoid liability based on the fault of some third party. Clearly, a third party's negligence only relieves the manufacturer of liability when the third party's acts are so extraordinary as not to have been reasonably foreseeable. See Baker, supra at 183; Herman v. Welland Chemical, Ltd., 580 F.Supp. 823 (M.D.Pa.1984). Thus, a defendant manufacturer may raise a third-party's negligence as a defense. This "negligence" may act as a defense for the manufacturer as well as support a third-party claim by the manufacturer for contribution. Furthermore, while fault concepts have no place in a strict liability or warranty action, they are relevant in a third-party suit based on negligence. See Baker, supra. It later may be determined that the third party's negligence played no part in the occurrence. The issue now before the court, however, is whether the third-party plaintiff's claim should be permitted to proceed at all.
[6] This claim is raised in plaintiffs' supplemental brief. Plaintiffs filed a Supplemental Brief in Support of Motion to Strike Third-Party Claim on September 3, 1985 in Civil No. 85-0561. No supplemental brief was filed in Civil No. 85-0560. For the purpose of clarity, the court construes the supplemental brief as if it applied to both cases.
[7] Courts in this circuit consider several factors in determining whether to permit joinder in the first instance. For example, some courts consider (1) the timeliness of the motion; (2) whether the filing of the third-party complaint would introduce an unrelated controversy or would unduly complicate the case to the prejudice of the plaintiff; and (3) whether the third-party complaint would avoid circuity of action and settle related matters in one lawsuit. Judd v. General Motors Corp., 65 F.R.D. 612 (M.D.Pa. 1974); see Collins v. General Motors Corp., 101 F.R.D. 4 (W.D.Pa.1983). The Eastern District of Pennsylvania also considers if the evidence and witnesses with respect to the third-party claim are the same as the evidence and witnesses in plaintiffs' claim; if the third-party claim involves substantially the same facts and parties as plaintiffs' claim; and if the questions of law involved in the third-party claim are substantially the same as plaintiffs' claim. Stiber v. United States, 60 F.R.D. 668 (E.D.Pa.1973). Similarly, these factors apply to a determination of whether to strike the third-party complaint.
[1] Turner did not file a response in Civil No. 85-0561. In Civil No. 85-0561 Turner was granted an enlargement of time within which to file a responsive pleading to the Third-Party Complaint. More specifically, Turner was relieved of any obligation to respond until the court's disposition of plaintiffs' Motion to Strike the Third-Party Complaint. By Order dated September 23, 1985, the court denied plaintiffs' Motion to Strike the Third-Party Complaint.
[2] Indemnification cannot be obtained in the absence of an indemnification contract or in the absence of active/passive liability. See Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Clearly, neither exists in this case. Thus, Turner's claim against plaintiffs for indemnification is not properly asserted in a cross-claim.
[3] The "striking" of the cross-claim against plaintiffs is in reality a dismissal of the claim. The claim for contribution/indemnification is not sustainable under any construction of the facts. See Gilbert & Bennett Manufacturing Co. v. Long Truck Lines, Inc., 574 F.Supp. 176 (D.Conn. 1983).
[4] The court's disposition of Turner's cross-claim against plaintiffs makes it unnecessary to address the Motion for a More Definite Statement as it applies to the cross-claim.
[1] The court notes that punitive damages are not provided for in the CPSA. Plaintiffs cannot request punitive damages based on the Act. See Payne v. A.O. Smith Corp., 578 F.Supp. 733 (S.D. Ohio 1983). Therefore, plaintiffs' claims for punitive damages based on the Act will fail. Plaintiffs point out, however, that certain of their punitive damage claims are not based on the CPSA. See Document 39 of Civil No. 85-0560 and Document 33 of Civil No. 85-0561. These claims are not challenged by the motions now before the court.
[2] Section 2072(a) provides:
(a) Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States....
15 U.S.C. § 2072(a). The language of this section requires that the injury be sustained "by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission." (emphasis added). Plaintiffs argue that defendants "knew or should have known" that their boats contained a substantial product hazard and that they failed to inform the Consumer Product Safety Commission as required by 15 U.S.C. § 2064. Thus, plaintiffs do not maintain that any violation was knowingly (willful) because they contend that defendants "knew or should have known of the defect."
Aside from this deficiency in pleading the cause of action, however, the Act requires, at the very least, that the Consumer Product Safety Commission have the authority to regulate the product involved. "The clear, unambiguous wording of section 2072 provides a private cause of action only for a violation of a rule or order promulgated by the Consumer Products Safety Commission...." Kahn v. Sears, Roebuck & Co., 607 F.Supp. 957, 958 (N.D.Ga.1985). The court in Kahn granted defendants' motion to dismiss when plaintiff only alleged that defendants failed to comply with reporting requirements detailed in interpretive rules issued by the Commission. See 16 C.F.R. § 115.1 et seq. The claim in this case is similar to that asserted in Kahn. Plaintiffs seek to assert a cause of action under § 2072 for the alleged failure of the defendants to comply with certain reporting requirements established by the Commission. See Morris v. Coleco Industries, 587 F.Supp. 8 (E.D.Va.1984). Cf. Young v. Robertshaw Controls Co., 560 F.Supp. 288 (N.D.N.Y. 1983) (§ 2072 provides a cause of action for a failure to comply with interpretive rules issued by the Commission). Whether the Kahn line of cases (§ 2072 action must be based on a violation of a substantive rule promulgated by the Commission) or the Young line of cases (§ 2072 action may be based on the violation of an administrative rule of the Commission) is followed, the Commission must have the authority to regulate the product involved.
[3] Several other products subject to regulation under other statutes also are excluded from the CPSA. For example, tobacco products, motor vehicles, pesticides, aircraft, drugs and food are also excluded. See e.g., 15 U.S.C. § 2052(a)(1).
[4] Plaintiffs acknowledge that the Coast Guard now operates under the Department of Transportation. See Document 40 of Civil No. 85-0560 at 7 and Document 34 of Civil No. 85-0561 at 7. Apparently, plaintiffs maintain that a transfer of functions from the Department of Transportation to the Secretary of Treasury negates any authority of the Office of Boating Safety to regulate the boats in question. Id. Plaintiffs do not support a finding that the Mastercraft and Baja boats could not be subject to safety regulations administered by the Department of Transportation. Instead, defendants, by affidavit, aver that the CPSC directed defendants to the U.S. Coast Guard "which indeed does have jurisdiction over all of these boats, including the Baja." See Document 44 of Civil No. 85-0560 and Document 39 of Civil No. 85-0561.
[5] The disposition of the case on this ground renders it unnecessary to reach the issue of whether a violation of the reporting requirements as alleged by plaintiffs creates a cause of action cognizable under § 2072. See supra n. 2 at 851-52.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260508/
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123 Cal.Rptr.2d 637 (2002)
101 Cal.App.4th 177
Nancy CASTERSON, Petitioner,
v.
The SUPERIOR COURT of Santa Cruz County, Respondent;
Samuel Cardoso, Jr., a minor, etc., et al., Real Parties in Interest.
No. H023369.
Court of Appeal, Sixth District.
August 13, 2002.
*638 Fenton & Keller, Mark A. Cameron, Monterey, for Petitioner.
No appearances for Respondent.
Dawson, Passafuime & Bowden, Kathleen Morgan-Martinez, Scotts Valley, for Real Party in Interest.
ELIA, J.
I. INTRODUCTION
In these original proceedings, the defendant in a personal injury action petitions for writ of mandate directing respondent court to vacate its order overruling her demurrer and to enter an order sustaining the demurrer without leave to amend. Petitioner Nancy Casterson is a public school teacher who contends that real party in interest Samuel Cardoso, Jr.'s claim that he was injured during a school field trip, as the result of her negligence in chaperoning *639 the trip, is barred by the school field trip immunity set forth in Education Code section 35330.[1] Petitioner acknowledges that section 35330, subdivision (d) expressly includes only school districts and the State of California in its immunity provision. However, petitioner argues that under the principles of statutory interpretation the statute should be construed to include the employees of school districts. Otherwise, the Legislature's intent to provide absolute immunity to school districts for personal injury claims arising from field trips would be undermined by the school district's vicarious liability under Government Code section 815.2, subdivision (a), for injuries caused by an employee in the course and scope of employment. We agree with petitioner, and for that reason we will issue a peremptory writ of mandate as requested.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Real party in interest, plaintiff Samuel Cardoso, Jr. (Samuel or plaintiff), through his guardian ad litem, Samuel Cardoso, Sr., filed a personal injury action against defendants Nancy Casterson (Casterson or defendant) and the La Quinta Inn.[2] The complaint identifies Casterson as an employee of the Pajaro Valley Unified School District (School District) who was acting in the course and scope of her employment at all relevant times. Samuel was a fourth grade special education student who attended elementary school in the School District at the time of his injury.
According to the complaint, Samuel was injured during a school field trip to Sacramento. Casterson and other School District employees and volunteers were in charge of the 90-student field trip, which included an overnight stay at the La Quinta Inn. Prior to the trip, Samuel's sister advised Samuel's teacher that Samuel could not swim. Nevertheless, defendants allowed Samuel to enter the pool at the La Quinta Inn and to be pushed by other students into the deep end, where Samuel sank to the bottom and nearly drowned. Casterson, who was Samuel's chaperone, allegedly "did not stay at the pool with Samuel and the other children under her care." As a consequence of the near drowning, Samuel allegedly suffered various physical and mental injuries.
The complaint further asserts that Samuel's near drowning was caused by the negligence of defendants, and states one cause of action for negligence. Plaintiff also alleges that his claim to School District was rejected. However, the complaint does not name School District as a defendant.
B. The Demurrer
Defendant Casterson responded to the complaint by filing a general demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e). The grounds for the demurrer were that the face of the complaint showed that an affirmative defense barred plaintiffs claim against defendant. Because the complaint alleged that plaintiff was injured during a school-sponsored field trip as the result of defendant's negligence while she was acting in the course and scope of her school district employment, defendant asserted that she was protected by the field trip immunity of section 35330. Although defendant acknowledged that section 35330 expressly immunizes only school districts and the State of California from personal injury *640 claims arising from school field trips, she argued that school district employees must be included within the scope of section 35330 immunity because a school district is vicariously liable for the negligence of its employees and is obligated to pay any judgment against an employee, pursuant to Government Code sections 815.2 and 825.
In support of this argument, defendant cited this court's decision in (Barnhart v. Cabrillo Community College (1999) 76 Cal. App.4th 818, 90 Cal.Rptr.2d 709 (Barnhart).) According to defendant, Barnhart makes clear that the statutory field trip immunity applies to school district employees, because this court affirmed summary judgment for both defendant community college district and defendant college coach on the basis of California Code of Regulations, title 5, section 55450, which in language identical to section 35330 provides field trip immunity expressly to community colleges and the State of California.
C. Opposition to the Demurrer
Plaintiff challenged defendant's contention that section 35330 must be construed to include school district employees within the scope of the field trip immunity. Since section 35330 refers only to school districts and not to their employees, plaintiff argued that employees are excluded. Plaintiff further argued that where the Legislature intends to immunize public entity employees it expressly includes them in the immunizing statute, for example, as in section 44808 and Government Code section 821.4. Thus, plaintiff asserted, where the Legislature has not expressly included public employees within the scope of public entity immunity, the employees remain personally liable for their negligence.
Additionally, plaintiff distinguished this court's decision in Barnhart on grounds that the decision concerned community colleges only and did not address the issue of whether a school district employee is protected by the section 35330 field trip immunity.
D. The Trial Court's Order
At the time of the hearing, the trial court overruled the demurrer. We are advised that no written order was prepared. In making its ruling, the court explained that the decision in Barnhart was not on point because it did not focus on the issue at bar. The court also declined to "legislate" the meaning of the various conflicting statutes, noting that there might be circumstances under which the employee was liable and the school district was not.
III. DISCUSSION
A. Availability of Writ Relief
An order overruling a demurrer is not directly appealable, but may be reviewed on appeal from the final judgment. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912-913, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Appeal is presumed to be an adequate remedy and writ review is rarely granted unless a significant issue of law is raised, or resolution of the issue would result in a final disposition as to the petitioner. (Curry v. Superior Court (1993) 20 Cal.App.4th 180, 183, 24 Cal.Rptr.2d 495.) In the present case, writ review is warranted for both reasons. The petition raises the first-impression issue of whether a school district employee is protected by the field trip immunity of section 35330 where it is alleged that a student was injured during a school-sponsored field trip as a result of the employee's negligence in the course and scope of employment. Also, resolution of this issue *641 in defendant Casterson's favor will result in a final disposition as to Casterson.
B. Standard of Review
The standard of review for an order overruling a demurrer is de novo. The reviewing court accepts as true all facts properly pleaded in the complaint in order to determine whether the demurrer should be overruled. (Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 327, 277 Cal. Rptr. 753.) A general demurrer will lie where the complaint "has included allegations that clearly disclose some defense or bar to recovery." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) ¶ 7:49, pp. 7-24 to 7-25, italics in original.) Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635, 76 Cal.Rptr.2d 615.) In the present case, we must determine whether the affirmative defense of the section 35330 field trip immunity necessarily bars plaintiffs personal injury claim against defendant Casterson.
C. Section 35330 Field Trip Immunity
In Barnhart, supra, 76 Cal.App.4th 818, 90 Cal.Rptr.2d 709, this court addressed field trip immunity in the context of a community college soccer team's trip to attend a soccer match. California Code of Regulations, title 5, section 55450, provides field trip immunity to community college districts in language identical to the field trip immunity for school districts set forth in section 35330.[3] The issue in Barnhart was whether California Code of Regulations, title 5, section 55450, field trip immunity barred personal injury claims against the community college and its soccer coach by soccer team members who were injured in an auto accident while en route to a match in a college van driven by the coach. This court concluded that the trial court had properly granted summary judgment for both the community college district and the coach, because the plaintiffs were injured during a field trip and therefore all defendants were immunized by the section 55450 field trip immunity. (Barnhart v. Cabrillo Community College, supra, 76 Cal.App.4th at pp. 828-829, 90 Cal.Rptr.2d 709.) However, in Barnhart, this court did not specifically address the propriety of applying field trip immunity to a community college employee in light of the express extension of field trip immunity only to the community college district and the State of California. It appears that the parties in Barnhart did not raise the issue of whether field trip immunity applied to the soccer coach as well as the community college district.
The parties have not cited and our own research has not revealed any reported decisions in which a school district employee was held personally liable for causing injury to a student in the course of a field trip, or which have addressed the issue of whether field trip immunity applies to school district employees who participate in a field trip in the course and scope of their employment. However, review of the statutory scheme for public entity and school district liability, together with application of the principles of statutory interpretation, persuade us that the field trip immunity provided by section *642 35330 should apply to school district employees whose negligence in the course and scope of their employment has caused injuries to a student during a school field trip.
Field trip immunity is a relatively new creature of statute. The School Code, which preceded the Education Code, did not provide field trip immunity. In 1933, a school district was held vicariously liable for injuries to students sustained during a field trip when the bus carrying the students was involved in an accident due to the negligent driving of a school district employee. (Bates v. Escondido U.H. School Dist. (1933) 133 Cal.App. 725, 732, 24 P.2d 884.) At that time, former School Code section 2.801 expressly provided that school districts were liable for injuries to person or property arising from the negligence of school district employees. (Ibid.) Subsequently, this provision was reenacted as Education Code section 903. (Biggers v. Sacramento City Unified Sch. Dist. (1972) 25 Cal.App.3d 269, 272, 101 Cal. Rptr. 706.) Section 903 was repealed concurrently with the enactment of the California Tort Claims Act in 1963. (Ibid.) The provision for vicarious school district liability was subsumed in the statutory provision for general public entity liability set forth in Government Code section 815.2: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." (Gov.Code, § 815.2(a).) At the same time, the general rule for public employee liability was codified in Government Code section 820, subdivision (a): "Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person."
In 1967, a provision for field trip immunity was added to the Education Code for the first time. Former section 1081.5 authorized school districts to take students in sixth through eighth grade on a school-sponsored field trip to a foreign country, provided that "all persons making such excursion or field trip waive all claims against the district or the State of California for injury or death occurring during or by reason of the excursion or field trip." By 1976, the field trip immunity of section 1081.5 had been broadened to apply to all field trips. (See Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 234, 126 Cal.Rptr. 537.) The court in Castro v. Los Angeles Bd. of Education determined that the waiver provision of section 1081.5 operated as a "`deemed' waiver of responsibility by the pupil-participant on a field trip or excursion." (54 Cal.App.3d at p. 236, 126 Cal.Rptr. 537, italics omitted.) The court concluded that "[s]tudents who are off of the school's property for required school purposes are entitled to the same safeguards as those who are on school property, within supervisorial limits. Students who participate in nonrequired trips or excursions, though possibly in furtherance of their education but not as required attendance, are effectively on their own; the voluntary nature of the event absolves the district of liability."[4] (Ibid.) The Education Code was reorganized *643 in 1976, and at that time section 1081.5 was replaced by section 35330.
Section 35330 currently provides authority to school districts or a county superintendent of schools to conduct field trips. The provision for field trip immunity is now found in subdivision (d): "All persons making the field trip or excursion shall be deemed to have waived all claims against the district or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion." Since section 35330 was enacted, decisions construing that section have focused on issues relating to the application of the field trip immunity to various student activities. In particular, the interaction of the absolute field trip immunity of section 35330 and the qualified immunity for off-premises school activities of section 44808 has been the subject of discussion in several appellate decisions.
Section 44808 provides in relevant part that "no school district ... shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district ... has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances." (Hoyem v. Manhattan Beach City Sch. Dist, supra, 22 Cal.3d 508, 516-517, 150 Cal.Rptr. 1, 585 P.2d 851.) At present, the consensus of opinion appears to be that "[a] field trip is a special type of off-premises activity, making section 35330 the special statute, should both statutes apply." (Wolfe v. Dublin Unified School Dist. (1997) 56 Cal. App.4th 126, 135, 65 Cal.Rptr.2d 280 [school district immune from liability for injury to first grader during field trip to family farm]; Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 239, 87 Cal.Rptr.2d 734 [field trip immunity precluded school district's liability for auto accident injuries to high school basketball players on tournament road trip]; Barnhart, supra, 76 Cal.App.4th at p. 829, 90 Cal.Rptr.2d 709 [under analogous regulation (Cal.Code Regs. tit. 15, § 55450) soccer team travel to a match is a field trip to which immunity applies].)
In reaching these conclusions, the appellate courts have agreed with the definitions of "field trip" and "excursion" set forth in Castro v. Los Angeles Bd. of Education, supra, which are used in applying the field trip immunity of section 35330: "`Field trip' is defined as a visit made by students and usually a teacher for purposes of first hand observation (as to a factory, farm, clinic, museum). `Excursion' means a journey chiefly for recreation, a usual brief pleasure trip, departure from a direct or proper course or deviation from a definite path." (54 Cal.App.3d 232, 236, fn. 1, 126 Cal.Rptr. 537; Barnhart, supra, 76 Cal.App.4th at p. 828, 90 Cal.Rptr.2d 709; Wolfe v. Dublin Unified, School Dist, supra, 56 Cal.App.4th at p. 132, 65 Cal. Rptr.2d 280.) In the present case, based on the allegations of the complaint, plaintiff does not dispute that he was in the course of a field trip when he was allegedly injured.
D. Field Trip Immunity Applies to Defendant
Plaintiff alleges that he was injured during a field trip due to the negligence of a School District employee, but he has not named School District as a defendant. Thus, plaintiff implicitly concedes that School District is immunized from liability for plaintiffs injuries by the section 35330 *644 field trip immunity. However, plaintiff asserts that he may sue defendant Casterson, the School District employee he believes to be responsible for his injuries, because school district employees are not expressly immunized by section 35330.
Plaintiff is correct that section 35330 does not expressly include employees, while other Education Code provisions that limit liability for personal injury claims, such as section 44808[5] and section 44808.5[6], do expressly include employees. Defendant argues that section 35330 must be construed to include school district employees within the scope of the field trip immunity, in order to preserve the legislative purpose of immunizing school districts from liability for field trip injuries. Plaintiff responds that the exclusion of employees, in contrast to other statutes expressly including employees, shows that the Legislature did not intend to immunize school district employees from personal liability for field trip injuries.
The principles of statutory interpretation support defendant's argument. "In statutory construction cases, our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation omitted.] `We begin by examining the statutory language, giving the words their usual and ordinary meaning.' [Citations omitted.] If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations omitted.] If there is ambiguity, however, we may then look to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation omitted.] In such cases, we `"`select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.'"'" (Estate of Griswold (2001) 25 Cal.4th 904, 910-911, 108 Cal.Rptr.2d 165, 24 P.3d 1191, quoting Day v. City of Fontana (2001) 25 Cal.4th 268, 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)
Thus, the first question in statutory interpretation is whether the statute is ambiguous. Statutory language may be ambiguous on its face, or it may be "shown to have a latent ambiguity such that it does not provide a definitive answer." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 119, 113 Cal.Rptr.2d 90.) We find that section 35330 has a latent ambiguity. While the statute expressly includes school districts within the scope of field trip immunity, it omits school district employees. The exclusion of employees leads to ambiguity because a school district is vicariously liable for the negligence of employees in the course and scope of their employment, pursuant to Government Code section 815.2. As one commentator has noted, "Public employee liability based on torts committed within the scope of employment generally does not result in personal loss to the employee. The public entity employer, even when not joined as a *645 defendant, has a statutory duty to indemnify the employee in such cases, at least in the absence of actual fraud, malice, or corruption, or failure of the employee to cooperate in the defense of the action." (Coates, et al., Cal.Government Tort Liability Practice (Cont.Ed.Bar 4th ed.2001) § 9.4.)
Plaintiff alleges that defendant was acting in the course and scope of her school district employment when she negligently supervised students during a field trip and caused plaintiffs near drowning. Therefore, if defendant were to be held liable, School District would be obligated to pay any judgment against her. (Gov.Code, § 825.) Plaintiff will have circumvented School District's field trip immunity by indirectly obtaining recovery from School District. Thus, our concern is that the field trip immunity of section 35330 will be severely limited in scope if plaintiffs can recover indirectly for field trip injuries by suing a negligent school district employee, since a school district necessarily acts through its employees in conducting students on school-sponsored field trips.
In order to discern the Legislature's intent in this regard, we have reviewed the available legislative history for section 35330 and its predecessor statute, former section 1081.5. Our review indicates that the Legislature was concerned that the financial costs of field trips not burden school districts. For example, before section 1081.5 was added to the Education Code by the passage of Assembly Bill No. 2582 (1967 Reg. Sess.), the Legislative Counsel's Digest summarized the bill as follows: "Authorizes excursions and field trips to foreign country adjacent to this state for elementary pupils in grades six to eight, when conducted pursuant to agreement for cultural exchange of pupils, and all travel and maintenance expenses are paid by pupils and employees or P.T.A. or like organization." (Legis. Counsel's Dig., Assem. Bill No. 2582, (1967 Reg. Sess.); italics added.) The waiver provision was also noted in the legislative history. A bill memorandum from the Senate's legislative secretary stated, "The bill also provides that all persons making such excursions] waive all claims against district or state for injury or death occurring during or by reason of such excursion." A handwritten note on the bill memorandum adds, "No tax payers [sic] expense." (Vernon L. Sturgeon, bill memorandum to Governor Reagan re Assem. Bill No. 2582 (1967 Reg. Sess. Aug. 25, 1967).)
From these legislative history materials, we discern that one aspect of the Legislature's intent in enacting former section 1081.5 in 1967 was to authorize school field trips upon the condition that no public funds be expended for the trips. We further discern that the waiver provision was added in furtherance of this purpose, because it prevents school district exposure to personal injury claims arising from field trips. This intent is apparent throughout the amendments to field trip immunity provisions of former section 1081.5 and section 35330, since the waiver provision has been carried over in each amendment with only slight changes.[7]
In our review of the legislative history materials for former section 1081.5 and section 35330, we have found only one mention of the statutes' omission of any provision for the waiver of field trip injury *646 claims against school district employees. In a 1967 memorandum to Governor Reagan concerning Assembly Bill No. 2582, the Office of the Attorney General stated, "The bill also provides that all persons making such excursion must waive all claims against school districts or the State for injury or death occurring during or by reason of such excursion ... however, the bill does not provide specifically for waiver of claims for negligent acts of employees of the school district or employees of the State of California. It is doubtful that a court would construe a waiver of actions against the State or the school district as including a waiver of actions for negligence against employees thereof. Since such employees are indemnified under the provisions of section 825, et seq., of the Government Code for acts of negligence occurring within the scope of their employment, it is entirely possible that the State or a local district might end up paying a judgment even in the presence of a waiver of all claims against the public entities themselves." (Associate Attorney Gen. Willard A. Shank, memorandum to Governor Reagan re Assem. Bill No. 2582, Aug. 22, 1967.)
We can find no indication in the legislative history materials that the Attorney General's mention of the omission in Assembly Bill No. 2582 of a statutory waiver provision expressly applicable to school district employees was brought to the attention of the Legislature while the bill was pending, or that the omission was considered by the Legislature at any time during the subsequent revisions to former section 1081.5 and 35330. Therefore, we cannot rely upon the Attorney General's memorandum to Governor Reagan as an expression of legislative intent. Unless a letter or memorandum to the governor refers explicitly to legislative debates or discussions, or indicates that the views expressed in the letter or memorandum were presented to the legislators who voted on the bill, it is not cognizable legislative history. (Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1163, 108 Cal.Rptr.2d 445, 25 P.3d 649; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 701, 170 Cal.Rptr. 817, 621 P.2d 856; Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1341, 101 Cal.Rptr.2d 591.)
Therefore, in accordance with our review of the legislative history, we conclude that a statutory interpretation of section 35330 that includes school district employees within the scope of the field trip immunity is correct. Including school district employees is necessary to avoid the absurd consequence of the de facto elimination of the field trip immunity for school districts, which the Legislature intended to provide when it enacted former section 1081.5 and section 35330.
Plaintiffs contrary statutory interpretation is based on the maxim expressio unius est exclusio alterius: "The expression of some things in a statute necessarily means the exclusion of other things not expressed." (Gikas v. Zolin (1993) 6 Cal.4th 841, 852, 25 Cal.Rptr.2d 500, 863 P.2d 745.) However, the maxim expressio unis est esclusio alterius "is inapplicable where its operation would contradict a discernible and contrary legislative intent." (Wildlife Alive v. Chickening (1976) 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537.) Plaintiffs statutory interpretation must be rejected because it contradicts the discernible legislative intent to protect school districts from exposure to personal injury claims arising from field trips. As we have discussed, it is consistent with legislative intent to construe section 35330 as extending field trip immunity to school district employees in *647 order to protect a school district from vicarious liability for an employee's alleged negligence in the course and scope of employment during a field trip.
Accordingly, because the allegations of the complaint state that defendant Casterson, while in the course and scope of her School District employment, negligently caused plaintiffs injuries during a school field trip, the face of the complaint shows that plaintiffs personal injury claim against her is barred by the affirmative defense of the section 35330 field trip immunity. Therefore, defendant's demurrer should have been sustained without leave to amend. "Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear but no liability exists under substantive law." (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436, 209 Cal.Rptr. 541.)
IV. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order overruling the demurrer of defendant Nancy Casterson, and to enter a new order sustaining the demurrer without leave to amend. The temporary stay order is vacated. Each party is to bear its own costs in this original proceeding.
WE CONCUR: PREMO, Acting P.J., and WUNDERLICH, J.
NOTES
[1] All further statutory references are to the Education Code unless otherwise indicated.
[2] The La Quinta Inn is not a party to the present writ proceedings.
[3] In pertinent part, section 55450 provides that, "All persons making the field trip or excursion shall be deemed to have waived all claims against the district or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion."
[4] In Barnhart, we noted that the statements in Castro v. Los Angeles Bd. of Education, supra, 54 Cal.App.3d at page 236, 126 Cal.Rptr. 537, regarding the voluntary or involuntary nature of a field trip or excursion were dicta and of questionable validity. (Barnhart v. Cabrillo Community College, supra, 76 Cal.App.4th at p. 827, 90 Cal.Rptr.2d 709; see also Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 518, fn. 3, 150 Cal.Rptr. 1, 585 P.2d 851.)
[5] Section 44808 provides in pertinent part that "Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless. ..." (Italics added.)
[6] Section 44808.5 provides that "Neither the school district nor any officer or employee thereof shall be liable for the conduct or safety of any pupil during such time as the pupil has left the school grounds [during the lunch period]." (Italics added.)
[7] Education Code, section 35330, Statutes 1976, chapter 1010, section 2, amended by Statutes 1977, chapter 36, section 132; Education Code of 1959, section 1081.5, added by Statutes 1971, chapter 1808, section 2, page 3910, amended by Statutes 1972, chapter 20, section 1, page 25; Education Code of 1959, section 1081.5, added by Statutes 1967, chapter 1627, section 1, page 3895.
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175 Ga. App. 542 (1985)
333 S.E.2d 877
FISHER
v.
KENTUCKY FRIED CHICKEN et al.
70546.
Court of Appeals of Georgia.
Decided July 11, 1985.
Rehearing Denied July 23, 1985.
Alex D. McLennan, Claude R. Ross, Melvin G. White, for appellant.
Oliver B. Dickins, Jr., for appellees.
BIRDSONG, Presiding Judge.
Malicious Prosecution Summary Judgment. The facts giving rise to this appeal show that in June 1980, the appellant, Stephen Fisher, was employed by Kentucky Fried Chicken as an assistant store manager. As store manager or assistant store manager, that person by store policy was required to secure the accumulated cash from the day's business and either deposit it that day if sufficiently large in *543 amount to warrant immediate deposit or to place it in the safe and make a deposit of the previous day's accumulation the following morning if business was slower as was customary during weekdays. Apparently during the days of June 15, 16, and 17, 1980, Fisher was not working. Thus, the deposit responsibility lay with the store manager. When Fisher returned to work on Wednesday, June 18, he found three days of accumulated deposits in the safe. He stated that he was upset because the manager had not made the necessary deposits.
For some unexplained reason, Fisher accumulated the cash deposits for Wednesday (June 18) and left them in the safe with all the other deposits that had accumulated. Though he had an opportunity to make a deposit during working hours, he maintained that because of one reason or another, he did not make any deposits on Thursday, Friday, or on the weekend. During the weekend, Fisher removed all or a great part of the accumulated cash amounting to $2,316 and placed the cash in the trunk of his car. He still made no deposits. He did not work on Monday or Tuesday. On Monday, June 23, the store manager was asked to account for the accumulated missing deposits. Fisher was not available for explanation; therefore, the store personnel were not aware where the money might be. All personnel except Fisher took polygraph examinations and accounted for their activities. The store manager attempted to locate Fisher and left word with Fisher's wife for Fisher to contact the store or the manager. Fisher acknowledged that he thought the inquiry related to the undeposited cash which was still in the trunk of his car.
On Wednesday, June 25, Fisher and his manager and another employee discussed the deposits. At that time, Fisher admitted that he had taken the money from the safe but that he had already made the deposit, a fact that Fisher knew to be untrue. On Thursday, Fisher reported for work and again was asked about the deposit slips for the cash but did not correct the deposit misinformation. He became aware that the manager believed he (Fisher) had taken the money. When he left the store on Thursday, Fisher submitted a letter of resignation and surrendered his store work clothes to his area manager. By this time, Fisher was aware that Kentucky Fried Chicken had commenced an investigation into the status of the missing cash which was still in the trunk of his car, but which he had by now twice stated that he had deposited. On Friday, Fisher finally went to a bank different from the one he usually made deposits and deposited the entire accumulation of cash to the account of Kentucky Fried Chicken.
Fisher's area manager, Robert Jones, was aware by Friday, June 28, that Fisher had kept the money in his possession for at least a week and had twice lied by asserting that the money had been deposited. Jones had contacted his superiors and related these facts including *544 that as of noon Friday the cash had finally been surrendered by Fisher. Jones was informed that prosecution for theft by taking was authorized. Fisher was directed to report to a police station late on Friday evening for further questioning. He admitted that he knew the money belonged to Kentucky Fried Chicken and that he had made a serious mistake by taking the money from the safe and placing it in his car for a week without making an accounting or depositing the same. The police officer in charge of the investigation indicated to Jones that a crime had been committed and that arrest and charges were warranted. Jones then swore out a warrant for theft by taking and Fisher was arrested on that charge. Subsequently at a recorder's court, the recorder found insufficient direct evidence to support the charge of theft and ordered the charges dismissed. Fisher then filed a complaint alleging malicious prosecution, false arrest, false imprisonment and slander. After answer and appropriate discovery, Kentucky Fried Chicken and Jones moved for summary judgment which motion was granted by the trial court. It is this grant of summary judgment that forms the basis for this appeal by Fisher. Held:
Fisher enumerates four asserted errors. However, the basis of each is that because Fisher returned the money before a warrant was procured for his arrest, the warrant as well as the attempted prosecution for theft by taking was not based upon probable cause but out of personal malice. Fisher in essence urges that there was evidence that would have authorized a jury to conclude that he (Fisher) had no intent to steal the money and because a jury could have found the lack of an intent there remained genuine issues of fact that would preclude the grant of summary judgment. More specifically he argues the facts show that he could have been negligent or forgetful as well as being larcenous and this dispute required disposition by a jury.
We are in full agreement with the trial court that such arguments do not raise issues sufficient to withstand a grant of summary judgment. "It is public policy to encourage citizens to bring to justice those who are apparently guilty. [Cit.] `The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.' [Cit.]" Day Realty Assoc. v. McMillan, 247 Ga. 561, 562 (277 SE2d 663).
In this case, it manifestly is clear that the essential facts are not in dispute. Fisher did indeed take money belonging to Kentucky Fried Chicken and keep it in his car for a week without making the deposits he knew he had to make. He falsely stated he had made deposits and did not admit he had taken the money and placed it in his *545 car until after an official investigation was undertaken. Even though he was fully aware that the company was looking for its money and repeated opportunities had passed during which he could have deposited the money, he persisted in his possession and told untruths about that possession. When the facts are uncontested, it is for the court to determine the probable cause issue. West v. Baumgartner, 228 Ga. 671, 676 (187 SE2d 665).
The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. Tanner-Brice Co. v. Barrs, 55 Ga. App. 453 (2) (190 SE 676). In such prosecutions, the burden of proving want of probable cause is on the plaintiff. Auld v. Colonial Stores, 76 Ga. App. 329, 335 (45 SE2d 827). This burden is not carried in any reasonable sense unless the plaintiff shows that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought. Barber v. Addis, 113 Ga. App. 806 (1) (149 SE2d 833).
In assessing the reasonableness of Jones' belief in probable cause, we can see by his testimony at the time he swore out the warrant he (Jones) believed that Fisher intended to steal the money and he still believed that at the time of discovery by deposition. Our court has concluded in the past that such a belief is not unwarranted. For example, entrustment of money to an employee who does not make a proper accounting when asked to do so, constitutes probable cause to believe that the employee is guilty of defalcation. Harris v. Gray, 58 Ga. App. 689 (1) (199 SE 831). Furthermore, removing and handling money in an unauthorized manner and without the owner's knowledge or consent gives rise to a reasonable conclusion of probable cause that a crime has been committed. Smith v. Ragan, 140 Ga. App. 33 (230 SE2d 89). Lastly, though Fisher sought to explain that he was piqued because his manager had not made deposits for three days and that thereafter for the next ten days he simply did not have an opportunity to make a deposit and that his secluding the cash in the trunk of his car either was for safekeeping or was merely inadvertent and harmless, Kentucky Fried Chicken and the area manager were not required to believe that explanation. McMillan v. Day Realty Assoc., 159 Ga. App. 366 (283 SE2d 298). We are completely satisfied that Fisher's unauthorized assumption of control of the cash for a substantial period of time and his lies about the disposition of that money, establish reasonable grounds for believing that he probably intended to take the money until his possession was discovered and only that discovery prompted his change of heart and return by way of deposit. *546 His actual intent has no bearing on the malicious prosecution case. Ross v. Rick's, 129 Ga. App. 716 (201 SE2d 159); Turner v. Bogle, 115 Ga. App. 710 (155 SE2d 667). Likewise the fact that Fisher returned the money by deposit prior to the swearing out of the warrant does not obviate or excuse conduct that reasonably may be concluded to be criminal. As aptly observed by the appellee, once a crime is completed, it may not be undone by simple recantation. See Martin v. State, 143 Ga. App. 875, 876 (240 SE2d 231).
Inasmuch as the question before the trial court was one of probable cause and that issue was not one of disputed fact but of applicable law, we find no error in the grant of summary judgment in favor of the appellees. See Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442).
Judgment affirmed. Carley and Sognier, JJ., concur.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260514/
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125 Cal.Rptr.2d 193 (2002)
101 Cal.App.4th 890
Virginia BONO, Plaintiff and Appellant,
v.
John CLARK, as Executor, etc., Defendant and Respondent.
No. H023029.
Court of Appeal, Sixth District.
August 30, 2002.
Rehearing Granted September 26, 2002.
*195 Ernest L. Miller, Miller, Domino & Ackerman, Attorney for Plaintiff and Appellant.
William G. Clark, San Jose, Clark & Clark, Attorneys for Defendant and Respondent.
Rehearing Granted September 26, 2002. See 128 Cal.Rptr.2d 31.
*194 WUNDERLICH, J.
The plaintiff in this action asserts various property claims against her late husband's estate. Plaintiffs principal claim is for the recovery of community property used to improve the husband's separate real estate during the parties' 17-year marriage. Plaintiffs other claims relate to personal property left in the husband's possession when the parties separated.
The trial court disposed of all of plaintiffs claims adversely to her, some by summary adjudication, and the rest by a defense judgment after trial. Plaintiff challenges all of those determinations on appeal.
As we explain, we conclude that the judgment contain errors of law that require reversal and remand.
FACTS
The plaintiff is this action is Virginia "Ginni" Bono (plaintiff). The defendant is John Clark, executor of the Estate of John Bono (defendant). John Bono (decedent) was plaintiffs husband.
Plaintiff and decedent were married in 1977 and separated in 1994.
*196 Prior to his marriage to plaintiff, decedent owned real property located at 4141 Canada Road in Gilroy, California. Decedent and his brother had purchased the Gilroy property in 1960 for $12,500. The two brothers later divided the 97-acre property. Following that division, decedent's property comprised some 46.5 acres and included a 10-foot by 60-foot trailer. Sometime after 1972, plaintiff moved into the trailer with her son. Up until then, the trailer had never been occupied. At that time, the trailer was "dilapidated;" it had no electricity, no telephone service, and no laundry facilities. Despite the condition of the trailer, plaintiff testified that the property was worth $50,000 in 1977, when she and decedent married.
Throughout their 17-year marriage, the Bonos used the trailer on the Gilroy property as their residence. During that time, they made extensive improvements to it. Among other things, they converted a large porch into several rooms (bedroom, dining room, laundry room, office), and they added a large family room and a concrete patio. They remodeled the kitchen and bathroom and installed new carpet in the bedroom. They installed a new well and brought electrical service to the property. The improvements effectively converted the 600-square-foot trailer into a 1920-square-foot home. According to plaintiffs testimony, the total cost of the improvements was between $77,500 and $80,500.
The Bonos separated on Labor Day 1994. Plaintiff moved from the property at that time; a mutual restraining order issued in September 1994 prevented her from returning.
In June 1995, decedent petitioned for dissolution of the marriage. Plaintiff answered the petition in August 1995, and both parties filed property declarations. Thereafter, however, neither party took any action to resolve their property disputes or to bring the dissolution action to a conclusion.
In November 1998, while the dissolution action was still pending, decedent died.
In 2000, decedent's estate sold the real property for $555,000.
PROCEDURAL HISTORY
In January 2000, plaintiff filed her first amended complaint against the estate. The complaint stated two causes of action: the first was for declaratory relief; the second was for conversion. In the prayer of the complaint, plaintiff sought a declaration of her community property rights, a determination of community property funds expended to improve decedent's separate property during the marriage, and damages for conversion of plaintiffs separate property.
Defendant promptly answered plaintiff s complaint.
Thereafter, in October 2000, defendant moved for summary judgment or, alternatively, for summary adjudication. Plaintiff opposed the motions.
The trial court heard and decided defendant's motions in November 2000. The court denied summary judgment, but partially granted the summary adjudication motion. As to the first cause of action, for declaratory relief, the court concluded that neither the statute of limitations nor the doctrine of laches barred relief as a matter of law. Nevertheless, the court concluded, plaintiff had no right to reimbursement of community funds used to improve decedent's separate property, because she consented to the use of those funds for that purpose. Turning to plaintiffs second cause of action, for conversion, the court granted summary adjudication on the ground that it was time-barred.
*197 In February 2001, the matter proceeded to trial on the remaining issues. During the two-day bench trial, the court gave the parties wide latitude in putting on evidence, despite the prior summary adjudication order. Thus, plaintiff was permitted to offer evidence in support of her theory that she had a pro tanto community property interest in the decedent's property despite the prior ruling denying her reimbursement claim as a matter of law. Defendant was allowed to offer evidence in support of the estate's laches defense.
In March 2001, the trial court filed its statement of decision. In it, the court first described the two issues that were previously adjudicated adversely to plaintiff reimbursement of community property contributions to the real property and conversion of her separate propertyand explained that those claims were res judicata. The court next rejected plaintiffs claim of a pro tanto community interest in decedent's real property. The court also disposed of plaintiffs community property claims to certain items of personal property, including livestock and motor vehicles. Finally, the court determined that plaintiff was guilty of laches in bringing this action.
In April 2001, the court entered judgment for defendant.
Plaintiff promptly appealed both from the judgment and from the earlier summary adjudication order.
DISCUSSION
I. First Cause of Action: Community Property Claims
A Laches
We consider the affirmative defense of laches at the threshold, because the trial court's finding of laches, if affirmed, would be dispositive of the first cause of action for declaratory relief.
1. Standard of review
Defendant urges us to review the trial court's finding of laches deferentially, for an abuse of discretion only. (See, In re Marriage of Plescia (1997) 59 Cal. App.4th 252, 256, 69 Cal.Rptr.2d 120: "[I]n the absence of a palpable abuse of discretion, the trial court's finding of laches will not be disturbed on appeal. [Citation.]" Accord, In re Marriage of Copeman (2001) 90 Cal.App.4th 324, 333, 108 Cal.Rptr.2d 801.)
We decline to do so here. As the California Supreme Court recently recognized, there are circumstances in which it is error to review a laches determination "under the deferential abuse of discretion standard." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68, 99 Cal.Rptr.2d 316, 5 P.3d 874 [held: the appellate court erred in applying abuse of discretion standard where the trial court's laches determination was the basis for its grant of summary judgment, which is subject to de novo review].)
"Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained. [Citations.]" (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal. Rptr. 826, 614 P.2d 258.) In other words, appellate courts review such determinations for "manifest injustice" or for "lack of substantial ... evidence." (Ibid.)
In cases such as this, where the finding of laches is made after trial, the proper appellate focus is the evidence in support of the finding. Even the two appellate decisions cited above, which employ the deferential abuse of discretion standard, *198 do not disregard the evidence. (See, In re Marriage of Plescia, supra, 59 Cal. App.4th at p. 257, 69 Cal.Rptr.2d 120: "In light of the record, the trial court did not palpably abuse its discretion." And see, In re Marriage of Copeman, supra, 90 Cal.App.4th at p. 326, 108 Cal.Rptr.2d 801: "[T]he trial court's finding of laches was supported by the evidence.") As the California Supreme Court recently explained: "Generally, a trial court's laches ruling will be sustained on appeal if there is substantial evidence to support the ruling." (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 67, 99 Cal.Rptr.2d 316, 5 P.3d 874, citing Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at p. 624, 166 Cal.Rptr. 826, 614 P.2d 258.) We therefore examine the trial record for evidence in support of the trial court's finding of laches.
2. The doctrine and its application here
Laches may bar relief in equity to those who neglect their rights, where such neglect operates to the detriment of others. (See generally, 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, §§ 14-16, pp. 690-694.) Given its nature as an equitable defense, however, there are recognized limits on application of the doctrine of laches. For one thing, the doctrine "is not applied strictly between near relatives." (Berniker v. Berniker (1947) 30 Cal.2d 439, 448-449, 182 P.2d 557, citing Rottman v. Rottman (1921) 55 Cal.App. 624, 632, 204 P. 46 [spouses].) More generally, "laches is not technical and arbitrary and is not designed to punish a plaintiff. It can only be invoked where a refusal would be to permit an unwarranted injustice. Whether or not the doctrine applies depends upon the circumstances of each case." (Hiett v. Inland Finance Corp. (1930) 210 Cal. 293, 300, 291 P. 414.)
"`The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.'" (Johnson v. City of Loma Linda, supra, 2A Cal.4th at p. 68, 99 Cal.Rptr.2d 316, 5 P.3d 874, quoting Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359, 82 Cal.Rptr. 337, 461 P.2d 617.)
a. Delay
"Laches implies that the plaintiff should have done something earlier." (Hill v. Hattrem (1981) 117 Cal.App.3d 569, 573, fn. 3, 172 Cal.Rptr. 806.) Whether the plaintiff should have acted sooner depends on the circumstances of the particular case.
In this case, defendant argues that plaintiff should have sought resolution of her claims while decedent was still alive. Defendant charges plaintiff with unreasonable delay for not pressing her property claims during the nearly three and a half years between the filing of the dissolution action and decedent's death. (Cf, Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 68, 99 Cal.Rptr.2d 316, 5 P.3d 874 [delay of more than three years in seeking reinstatement unreasonable].)
Plaintiff counters that if there was a delay at all, it was neither unjustified nor chargeable solely to her. First, as justification for not pursuing her claims sooner, plaintiff points out that she was unrepresented during most of the time the dissolution action was pending because she was without the economic means to hire an attorney. Next, plaintiff argues that the failure to pursue the dissolution action to conclusion should not be laid solely at her feet. According to plaintiff, decedentas the petitioner in the dissolution action had an equal or greater obligation to conclude the action and to resolve the property *199 issues promptly. Moreover, she asserts, it was in decedent's best interest not to bring the matter to trial, since he continued to enjoy exclusive control of the property she claimed as long as the action was still pending. Finally, plaintiff points out, she filed a claim with the Estate within six months of decedent's death and then filed this action some eight months later. Thus, she argues, there was no delay.
We disagree with plaintiffs implicit assertion that a party's inability to afford counsel necessarily justifies delay. (Cf., e.g., Carrasco v. Craft (1985) 164 Cal. App.3d 796, 804-806, 210 Cal.Rptr. 599 [lack of funds to hire attorney does not always excuse default]; Davis v. Thayer (1980) 113 Cal.App.3d 892, 906-907, 170 Cal.Rptr. 328 [same; default not excused].) We find more persuasive plaintiffs argument that decedent bore the primary responsibility for concluding the dissolution action. (Cf., e.g., Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 436, 41 Cal.Rptr.2d 362, 895 P.2d 469 [plaintiffs burden to avoid five-year dismissal statute].)
But we need not decide here whether plaintiff is responsible for an unjustified delay in concluding the dissolution action. Even assuming that the trial court was correct in finding that plaintiff unreasonably delayed, that finding alone will not support a laches defense. "Delay is not a bar unless it works to the disadvantage or prejudice of other parties." (11 Witkin, Summary of Cal. Law, supra, Equity, § 15, p. 692, original italics. See also, Conti v. Board of Civil Service Commissioners, supra, 1 Cal.3d at p. 359, fn. 7, 82 Cal.Rptr. 337, 461 P.2d 617. Compare earlier California cases cited in Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 726, 161 P.2d 677.)
We therefore turn to the more critical inquiry: whether defendant has demonstrated prejudice.
b. Prejudice
Prejudice may be shown where the plaintiffs delay causes detriment to the defendant. (See, e.g., In re Marriage of Plescia, supra, 59 Cal.App.4th at pp. 256-257, 69 Cal.Rptr.2d 120 [prejudice shown where ex-wife delayed more than nine years before seeking support arrearages; during that period, ex-husband had retired and could no longer pay the support order]; Nealis v. Carlson (1950) 98 Cal.App.2d 65, 67-69, 219 P.2d 56 [prejudice shown where ex-wife delayed eight years after knowledge of final divorce decree before making claim of invalidity; during that period, ex-husband had adopted a child, changed his will, and died]. Compare, Field v. Bank of America (1950) 100 Cal.App.2d 311, 313-314, 223 P.2d 514 [no prejudice shown where plaintiffs long inactivity actually benefited defendant by its accrual of trustee fees during the delay].)
Here, defendant claims the estate has been prejudiced because decedent's death deprived it of one of only two witnesses to the transactions in question. "Death of important witnesses may constitute prejudice." (Stafford v. Bollinger (1962) 199 Cal.App.2d 289, 296, 18 Cal. Rptr. 568. Accord, Garrity v. Miller (1928) 204 Cal. 454, 460, 268 P. 622; Getty v. Getty (1986) 187 Cal.App.3d 1159, 1171, 232 Cal.Rptr. 603. Cf., Zakaessian v. Zakaessian, supra, 70 Cal.App.2d at p. 727, 161 P.2d 677: "The death of a material witness is [only] one factor in determining whether laches is present.")
In this case, however, defendant offered no evidence at trial to demonstrate whether and how the estate was prejudiced by decedent's unavailability as a witness. *200 The trial judge who earlier denied summary adjudication of the laches defense aptly noted in his order: "Plaintiff and Decedent stipulated to maintain the status quo of the property in their possession and thus greatly reduced the possibility that the delay would cause problems in locating specific items of property; and ... even though Decedent is dead, Defendant may have other witnesses, records and evidence at his disposal to adequately represent the interests of Decedent's estate." At trial, defendant offered no evidence of prejudice. To the contrary, the estate presented its own evidence, produced its own witnesses (though not the executor), and vigorously cross-examined plaintiff. And although defendant's trial counsel argued below that the estate had not abandoned its laches defense, he offered the court no trial evidence to support that closing argument. On appeal, defendant defends the trial court's finding of prejudice with this one-sentence observation: "The trial court witnessed the difficulty on the part of the [defendant] in contradicting or modifying the testimony of the [plaintiff], since she and the decedent were the only ones privy to the information concerning the acts surrounding the marital residence."
"Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue." (Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at p. 624, 166 Cal.Rptr. 826, 614 P.2d 258, citing Conti v. Board of Civil Service Commissioners, supra, 1 Cal.3d at p. 361, 82 Cal.Rptr. 337, 461 P.2d 617. See, Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at pp. 625, 626, 166 Cal. Rptr. 826, 614 P.2d 258 [finding no evidence of prejudice and thus no support for the trial court's finding of laches].)
Defendant bore the burden of production and the burden of proof on this issue but failed to carry either one, having offered no evidence at trial on the issue of prejudice. "[S]ince we do not presume prejudice, and since respondents did not prove prejudice, the defense of laches fails." (Conti v. Board of Civil Service Commissioners, supra, 1 Cal.3d at p. 355, 82 Cal.Rptr. 337, 461 P.2d 617.)
Having determined that there is no substantial evidence of laches, we turn to a consideration of the other issues raised by plaintiff with respect to her first cause of action.
B. Community Property Claims: Real Property
Plaintiff asserts a community property interest in decedent's separate real property, based on the fact that the parties used community funds to improve the property. Defendant challenges that assertion. First, he argues, plaintiff is not entitled to reimbursement, because she consented to the use of community property funds to improve the property. In addition, he contends, she has no right to a protanto interest in the property. That contention rests in part on a claimed lack of legal authority and in part on the implication that plaintiff failed to plead such a claim against the estate. Before addressing the parties' specific contentions, we set forth the applicable legal principles, beginning with the standard of review.
1. Standard of review
"Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test." (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278.) Thus, for example, appellate review of "a trial court's finding *201 that a particular item is separate or community property is limited to a determination of whether any substantial evidence supports the finding." (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849, 21 Cal.Rptr.2d 642.)
"Questions of law relate to the selection of a rule; their resolution is reviewed independently." Crocker National Bank v. City and County of San Francisco, supra, 49 Cal.3d at p. 888, 264 Cal. Rptr. 139, 782 P.2d 278.) Likewise, where mixed questions of fact and law require "a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently. [Citation.]" Ibid. Cf., In re Marriage of Dekker, supra, 17 Cal.App.4th at p. 849, fn. 11, 21 Cal.Rptr.2d 642.)
In this case, we apply the substantial evidence standard to the trial court's factual findings as to the existence and character of the parties' property. By contrast, the trial court's determination of what legal principles apply is subject to our de novo review.
2. Recovery of community property expenditures
a. The Moore/Marsden rule and its extension to improvements
When community property is used to reduce the principal balance of a mortgage on one spouse's separate property, the community acquires a pro tanto interest in the property. (In re Marriage of Moore (1980) 28 Cal.3d 366, 371-372, 168 Cal.Rptr. 662, 618 P.2d 208; In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 436-440, 181 Cal.Rptr. 910.) This well-established principle is known as "the Moore/Marsden rule." (See generally, Hogoboom & King, Cal. Practice Guide: Family Law 2 (The Rutter Group 2002) ¶¶ 8:295-8:312, pp. 8-75 to 8-83; 1 Kirkland et al., Cal. Family Law: Practice and Procedure (2d ed. 2002) Division of Specific Property, § 21.03, pp. 21-11 to 21-18.) The Moore/Marsden rule has been extended to cases involving separate commercial property. (In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1007-1008, 226 Cal. Rptr. 766.) It has also been applied where the parties refinanced a separate residential mortgage during marriage. (In re Marriage of Branco (1996) 47 Cal.App.4th 1621,1625-1629, 55 Cal.Rptr.2d 493.)
Until recently, however, no reported appellate decision had considered whether the Moore/Marsden rule properly extends to community expenditures for improvements to one spouse's separate property.
Last year, the Third District Court of Appeal addressed that issue. (See, In re Marriage of Wolfe (2001) 91 Cal.App.4th 962, 110 Cal.Rptr.2d 921 (Wolfe).) After exhaustively tracing the development of the law in this area, the Wolfe court "discarded" the gift presumption for such improvements. (Wolfe, supra, 91 Cal. App.4th at p. 967, 110 Cal.Rptr.2d 921.) As the court remarked: "There is little logic in a rule that presumes an unconditional gift when one spouse uses community funds to improve the other spouse's property.... As we explained, our courts do not indulge such a presumption when community funds are used to assist in the purchase or to reduce an encumbrance on a separate asset. The application of community funds results in what amounts to co-ownership of the asset. [Citations.] There is no reason to presume a gift when funds are applied to improve separate property." (Id, at p. 972, 110 Cal.Rptr.2d 921, original italics.)
This year, the Second District Court of Appeal, Division Two, also addressed the issue of community-funded improvements to separate property. (See, In re Marriage *202 of Allen (2002) 96 Cal.App.4th 497, 116 Cal.Rptr.2d 887 (Allen).) Agreeing with Wolfe, the court rejected the notion that "a wife's consent to the use of community funds to improve her husband's separate real property raises a presumption that the funds were a gift of the funds to the husband." (Id. at p. 498, 116 Cal. Rptr.2d 887.)
In reaching its conclusion, the Allen court reversed the trial court's contrary determination. The trial court there found itself "constrained by the holdings" in two earlier cases, In re Marriage of Jafeman (1972) 29 Cal.App.3d 244, 105 Cal.Rptr. 483 (Jafeman) and In re Marriage of Camire (1980) 105 Cal.App.3d 859, 164 Cal. Rptr. 667 (Camire). (Allen, supra, 96 Cal.App.4th at pp. 499-500, 116 Cal. Rptr.2d 887.) Both Jafeman and Camire indulge in the presumption of a gift of community property in these circumstances, but both cases also predate the Moore/Marsden rule. (Ibid.) As the Allen court noted, developments in family law have eroded the underpinnings of the gift presumption on which those cases rely. (Id at p. 501, 116 Cal.Rptr.2d 887. See also, In re Marriage of Gowdy (1986) 178 Cal.App.3d 1228, 1230-1234, 224 Cal.Rptr. 400. Cf, Hogoboom & King, Cal. Practice Guide: Family Law 2, supra, ¶ 8:312, p. 8-83 [concluding that Camire "is of questionable precedential value" because it predates enactment of the statutory presumption that joint title acquisitions during marriage are community property].)
As the Allen court explained: "A spouse who consents to the use of community funds to improve the other spouse's separate property does not necessarily intend a gift.... Where community funds are used to make capital improvements to a spouse's separate real property, the community is entitled to reimbursement or a pro tanto interest under the Moore/Marsden rule both because its rationale applies equally to the reduction of an encumbrance and to capital improvements, and also because the legal underpinnings of the alternative rule ... [citation], have been destroyed by intervening changes in family law." (Allen, supra, 96 Cal.App.4th at p. 501, 116 Cal.Rptr.2d 887, fn. omitted.) "The Moore/Marsden rule is based upon the principle that where community funds contribute to the owner's equity in separate property, the community obtains a pro tanto quasi-ownership stake in the property.... [Citation.] Because contributions to capital improvements also increase the property's equity value, Moore's rationale applies as well to capital improvements made to separate property." (Id. at p. 502, 116 Cal.Rptr.2d 887. Cf., Fam.Code, § 2640, subd. (a) [separate property contributions to the acquisition of community property include payments for improvements].)
We agree that the rationale of the Moore/Marsden rule applies with equal force to capital improvements, as a matter of both logic and fairness. We therefore adopt the principles expressed in Wolfe and Allen. In doing so, we necessarily disagree with earlier cases, such as Jafeman and Camire, to the extent that they apply a gift presumption to community-funded expenditures for capital improvements to a spouse's separate property.
b. Application to this case
Having adopted the principles announced in Wolfe and Allen, we next consider how they apply in this case.
We first address defendant's implication that plaintiffs pleading does not support a pro tanto recovery. According to defendant, plaintiff seeks only reimbursement on behalf of the community. We do not read plaintiffs complaint so narrowly. (See Civ. Proc., § 452 [liberal *203 construction of pleadings].) Her prayer asks for a determination of the community property funds expended on decedent's property "and the increased value, and or reimbursement for said funds." In our view, that request adequately states an alternative claim for a pro tanto interest in the property.
We turn next to a consideration of the nature and extent of plaintiffs entitlement to recovery. Neither Wolfe nor Allen provides much guidance on this question, given the procedural and factual contexts in which those two cases were decided.
In Wolfe, the wife sought limited recovery, asking only for reimbursement of her one-half share of the cost of the community improvements to the husband's separate property. (Wolfe, supra, 91 Cal.App.4th at p. 973, 110 Cal.Rptr.2d 921.) The wife there made no claim to any equity appreciation nor, apparently, did she assert a pro tanto interest in the husband's property as a result of the community-funded improvements. (Ibid.) The court agreed that the wife was "at least entitled to one-half of the amount expended on the improvement." (Ibid.) Given the nature of the wife's claim, the evidentiary record, and the judgment below, the Wolfe court found it unnecessary to remand for that determination. (Ibid.)
In Allen, by contrast, the appellate court concluded that remand was required. As the court explained: "It is premature ... to address the issue of the proper measure of the community's reimbursement rights or pro tanto interest in the present case. Because the trial court excluded evidence on the issue, it made no findings regarding the contested issues of whether community funds were in fact expended for improvements to the family residence ... and, if so, the amount of any expenditures. Nor did it allow evidence on the issue of increase in value attributable to such expenditures. This is a difficult and complex issue, which we decline to address in a vacuum. While we do not believe the difficulty in calculating damages requires a different result [citation], we remand for further factual development." (Allen, supra, 96 Cal.App.4th at p. 505, 116 Cal. Rptr.2d 887.)
In this case, the record is somewhat more well-developed than in Allen, but it is still incomplete. The trial record here includes plaintiffs testimony that the improvements were funded with community property. Defendant attempted to undermine that evidence with cross-examination questions suggesting that some improvements were funded with money from decedent's inheritance. But that attempt was unsuccessful, and defendant offered no evidence tracing any expenditures to separate property sources belonging to decedent. (Cf., In re Marriage of Higinbotham (1988) 203 Cal. App.3d 322, 328-329, 249 Cal.Rptr. 798.) Based on plaintiffs uncontradicted testimony, the trial court made a factual finding that "certain improvements were made and paid for with community funds." In addition to evidence showing the source of the money used for improvements, the record also includes testimonial evidence of the amount of money spent on those improvements. By plaintiffs estimates and recollection, the cost of the improvements totaled between $77,500 and $80,500. But despite the fact that plaintiffs testimony was uncontradicted, the court made no factual finding as to the cost of the improvements. Similarly, the record includes undisputed testimonial evidencebut no judicial determinationon the question of whether the improvements enhanced the value of the property. (See Wolfe, supra, 91 Cal. App.4th at p. 972, 110 Cal.Rptr.2d 921, noting that "improvements do not always *204 enhance the value of an asset; indeed, ill-advised improvements may well diminish the value of property.") Finally, while there was a stipulation at trial concerning the sales price of the decedent's separate real property in 2000, the record contains no evidence of the value of that property as of the date of separation six years earlier.[1]
Given the evidentiary gaps in this record, remand is necessary for a factual determination of the nature and extent of plaintiffs entitlement to recovery for the community property expenditures to decedent's separate property.
If the trial court determines that the improvements to the trailer did not enhance the property's value, plaintiffs recovery will be limited to reimbursement of one-half of the community funds spent on improving the decedent's property. (Wolfe, supra, 91 Cal.App.4th at p. 972, 110 Cal.Rptr.2d 921.)
However, in the event that the court finds that the improvements contributed to an increase in the property's equity value, the community will be entitled to a pro tanto interest in the property. (Allen, supra, 96 Cal.App.4th at p. 502, 116 Cal. Rptr.2d 887.) In calculating the community's pro tanto interest, the following principles apply. First, the decedent's separate property interest includes both pre-marital and post-separation appreciation in the value of the property.[2] (See, In re Marriage of Marsden, supra, 130 Cal.App.3d at pp. 437-439, 181 Cal.Rptr. 910 [pre-marital appreciation as separate property]; Fam.Code, § 771 [post-separation earnings and accumulations as separate property].) Next, the community's contributions to equity are considered. Here, the community's financial investment in the property took the form of improvements, rather than acquisition or debt reduction expenditures. For that reason, care must be taken to include only capital improvements, and then only to the extent that those capital improvements enhance the property's value. (Cf., In re Marriage of Moore, supra, 28 Cal.3d at p. 372, 168 Cal.Rptr. 662, 618 P.2d 208 [holding that it is improper to include mortgage interest and property taxes in calculating the community's share since "such expenditures do not increase the equity value of the property"]. And see, Wolfe, supra, 91 Cal.App.4th at p. 972, 110 Cal.Rptr.2d 921 [noting that "improvements do not always enhance the value of an asset"].) Furthermore, in this case, there may be reason to consider the value of the acreage separately from that of the home, if the improvements enhanced only the residence. (Cf., e.g., Allen, supra, 96 Cal.App.4th at p. 505, 116 Cal. Rptr.2d 887 [noting the lack of evidence "on the issue of increase in value attributable to such expenditures"].) Once the amount of the investment has been determined, the community's interest in the property is calculated as "`the ratio of the community investment to the total separate and community investment in the property.'" (In re Marriage of Moore, *205 supra, 28 Cal.3d at p. 372, 168 Cal.Rptr. 662, 618 P.2d 208, quoting Bare v. Bare (1967) 256 Cal.App.2d 684, 690, 64 Cal. Rptr. 335.) That ratio, expressed as a percentage, is then multiplied by the appreciation in the property's value during the marriage prior to separation. (See, In re Marriage of Marsden, supra, 130 Cal. App.3d at pp. 438-439, 181 Cal.Rptr. 910.) Plaintiff would then be entitled to one-half of the resulting amount as her community property share.[3]
The principal effect of our holding is to put capital improvements on the same footing as expenditures for property acquisition or for mortgage reduction. In our view, as we explained, there are no meaningful differences among those three avenues of equity accretion and therefore no principled reason to distinguish among them. Nevertheless, we recognize that our holding creates an apparent anomaly on another front. In effect, it puts community contributions to separate property on a different footing than separate contributions to community property. In the latter case, recovery is limited to dollar-for-dollar reimbursement, without interest. (Fam.Code, § 2640, subd. (b) [separate property contributions to community property, if traced and unless waived, are reimbursed "without interest or adjustment for change in monetary value"].) Under our holding, by contrast, the investment of community funds entitles the community to share in the separate property's appreciation, even if "`the fair market value has increased disproportionately to the increase in equity'" resulting from the community improvements. (In re Marriage of *206 Moore, supra, 28 Cal.3d at p. 372, 168 Cal.Rptr. 662, 618 P.2d 208, quoting Bare v. Bare, supra, 256 Cal.App.2d at p. 690, 64 Cal.Rptr. 335.) In an inflationary real estate market, that entitlement may represent a tremendous boon to the community. When compared to the limited recovery for separate property contributions (through reimbursement only), the potentially more extensive recovery for community property contributions (through recognition of a quasi-ownership interest) might appear anomalous. (Cf., In re Marriage of Gowdy, supra, 178 Cal.App.3d at p. 1234, 224 Cal.Rptr. 400: "[I]t would be anomalous ... to hold that a spouse ... who permits community funds to be used to reduce an encumbrance on the other spouse's separate property has fewer rights than a spouse who permits his or her separate property to be used for the same purpose with respect to a community property.") Despite that, we believe that the conclusion we reach here is compelled as a logical extension of the Moore/Marsden rule. We also believe it is consistent with California's "partnership" model of marriage, which strongly favors community property. (Cf., e.g., Fam.Code, § 760; In re Marriage of Dekker, supra, 17 Cal.App.4th at pp. 850-851, 21 Cal.Rptr.2d 642; In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448,140 Cal.Rptr. 779.)
For the reasons explained above, the judgment must be reversed and the cause remanded to the trial court to determine the nature and extent of plaintiffs right to recover for community improvements to the decedent's separate property.
C. Community Property Claims: Personal Property
Plaintiff contends she is entitled to her one-half share of certain personal property assets that belonged to the community at the time of the parties' separation. According to plaintiff, those assets consisted of livestock (11 or 12 cows and four horses), plus three vehicles, with a combined value of more than $25,000. The assets were left at the property when the parties separated. With the exception of one vehiclea 1990 Ford pickup truck none of the assets appeared on the inventory of decedent's estate. At trial, plaintiff argued that decedent must have disposed of the missing assets, in violation of his fiduciary duties under the Family Code. Plaintiff also argued that she was entitled to her community share of the one remaining asset, the Ford truck.
The trial court rejected plaintiffs assertions. As to the missing items, the court found that plaintiff failed to carry her burden of proving decedent's breach of fiduciary duty. With respect to the Ford truck, the court found that plaintiff failed to submit evidence of its current value and, further, that the decedent had paid off the remaining indebtedness on the vehicle after separation. The court also determined that the decedent or his estate paid off a community property loan incurred for plaintiffs business, in the amount of $11,818.79, which had been secured by decedent's separate real property. In light of the payment of that loan, and plaintiffs failure to prove a value in excess of that debt, the court exercised its discretion to award the truck to decedent.
On appeal, plaintiff challenges the ruling as error.
1. Standard of review
We review the court's ruling under the substantial evidence standard. (Cf., (In re Marriage of Dekker, supra, 17 Cal.App.4th at p. 849, 21 Cal.Rptr.2d 642.))
2. Community property assets
With respect to the missing livestock and vehicles, the record supports the trial *207 court's determination that plaintiff failed to carry her burden of proof. Plaintiff offered no evidence to show that decedent had disposed of the items in contravention of his fiduciary duties. (See, Fam.Code, §§ 1100-1101, 2102. Cf., In re Marriage of Moore, supra, 28 Cal.3d at pp. 374-375, 168 Cal.Rptr. 662, 618 P.2d 208 [wife failed to prove husband's misappropriation of missing community property].) The mere absence of the assets four years after separation is insufficient to raise an inference that decedent disposed of them inappropriately. With respect to the cows and horses, for example, it might be equally reasonable to infer that they had died in the intervening years. In any event, the lack of evidence on this point fully warrants the trial court's determination. For that reason, plaintiff is not entitled to an award with respect to the missing assets, nor is she entitled to an accounting. (Cf., Fam. Code, § 1101, subd. (b).)
As to the sole remaining community asset, the Ford truck, we likewise agree with the trial court's determinations. First, the trial judge found that plaintiff failed to carry her burden of proving its value at the time of trial. (See, Fam.Code, § 2552.) Plaintiffs only evidence of value was her testimony that she paid between $8,500 and $9,000 for the truck in 1992. Defendant offered evidencein the form of the estate's inventory and appraisementthat the value of the Ford truck was $3,450 at some point after decedent's death in November 1998. The court was entitled to accept the estate's proffered value as being closer in time to trial. (Cf., e.g., In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 625, 108 Cal.Rptr.2d 833 [court has broad discretion to determine valuation date to accomplish equitable division]; In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1435, 28 Cal.Rptr.2d 726 [same].) Next, in dividing the community asset, the court considered the estate's payoff of the loan incurred for plaintiffs business. Although that loan was secured by decedent's separate real property, it was a community obligation. (Cf, e.g., In re Marriage of Branco, supra, 47 Cal. App.4th at p. 1629, 55 Cal.Rptr.2d 493 [community loan, though secured by wife's separate property, where proceeds benefited the community].) The loan payoff amount exceeded $11,800. It appears that either decedent or his estate paid that amount, since the payment was made after separation. Plaintiffs share of the community debt thus exceeded her share of the sole remaining community asset, the Ford truck, under any valuation theory. In light of these facts, the court was well within its discretion in awarding the truck in its entirety to decedent's estate.
Based on the evidence in the record, we affirm the trial court's ruling with respect to plaintiffs claims to community personal property assets.
II. Second Cause of Action: Conversion of Separate Property
The second cause of action of plaintiffs complaint alleges conversion of her separate property. As noted above, the trial court granted the defense motion for summary adjudication of that claim, on the ground that it was time-barred as a matter of law. Plaintiff contends that the grant of summary adjudication was error.
1. Appealability
A grant of summary adjudication is an intermediate order, which the appellate court may review on an appeal from the final judgment. (Code Civ. Proc., § 904.1. See, Jennings v. Marralle (1994) 8 Cal.4th 121, 128, 32 Cal.Rptr.2d 275, 876 P.2d 1074. Accord, Jacobs-Zorne v. Superior Court (1996) 46 Cal.App.4th 1064, 1070-1071, 54 Cal.Rptr.2d 385.)
*208 2. Standard and scope of review
We review a grant of summary judgment de novo, since it presents only questions of law. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766; Barton v. Elexsys Internal, Inc. (1998) 62 Cal.App.4th 1182, 1187, 73 Cal.Rptr.2d 212.)
In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887, 41 Cal.Rptr.2d 740.) First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Ibid.)
A summary judgment motion "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the "action has no merit or that there is no defense" thereto. (Code Civ. Proc., § 437c, subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213-214, 51 Cal. Rptr.2d 642.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2). See, Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, 15 Cal. Rptr.2d 598.) The moving party's evidence is strictly construed, while that of the opponent is liberally construed. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 840-841, 77 Cal.Rptr.2d 12.)
3. Statute of limitations
Plaintiff contends that there are disputed material fact questions concerning the timeliness of her action, and, consequently, that the trial court erred in concluding that her cause of action for conversion was time-barred. To assess that contention, we review the applicable statute and accrual rules as they apply to the facts of this case.
a. Applicable statute
Plaintiffs cause of action for conversion is subject to a three-year statute of limitations. (Code Civ. Proc., § 338, subd. (c).)
b. Accrual
As a general rule, the statute of limitations for conversion is triggered by the act of wrongfully taking property. (Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 915-916, 59 Cal. Rptr.2d 474.)
But there is an exception in cases where "a fiduciary has concealed the material facts giving rise to the cause of action." (Strasberg v. Odyssey Group, Inc., supra, *209 51 Cal.App.4th at p. 916, 59 Cal.Rptr.2d 474; Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 561, 305 P.2d 20.) Plaintiff asserts that the trial court erroneously denied her the benefit of that exception. Plaintiff claimsas a disputed factual matterthat she was unaware that her separate property assets were missing from the marital home; she further claims that this factual dispute raises a triable issue. We disagree.
In this case, there is no evidence of concealment. That key fact distinguishes this case from the Strasberg case, on which plaintiff relies. In Strasberg, the defendants' predecessor, Inez Melson, had been Marilyn Monroe's business manager and assistant. (Strasberg v. Odyssey Group, Inc., supra, 51 Cal.App.4th at p. 911, 59 Cal.Rptr.2d 474.) After the celebrity's death, Melton surreptitiously retained some of her personal effects. (Id. at p. 912, 59 Cal.Rptr.2d 474.) The beneficiary of the estate had no reason to know of the existence of the items, much less that they had been taken. As the court explained: "Melson, while acting in her capacity of a fiduciary, wrongfully concealed the items she chose to retain from the Marilyn Monroe estate. Accordingly, the statute of limitations was tolled until the beneficiary discovered or ought to have discovered the existence of the cause of action for Melson's conversion." (Strasberg v. Odyssey Group, Inc., supra, 51 Cal.App.4th at p. 917, 59 Cal.Rptr.2d 474.) The Strasberg court distinguished cases in which the plaintiffs "knew about the property in question, knew who held the property, and either had actual knowledge or reason to know the property had been transferred out of the trust to an unauthorized person." (Id. at p. 918, 59 Cal.Rptr.2d 474.) Here, too, plaintiff knew the nature and extent of the property in question, and she knew that the property was in the hands of decedent, with whom she was in a hostile relationship.
"In practical terms, a conversion can only occur after an owner has entrusted his property to another. Thereafter, if the possessor acts in a manner inconsistent with the owner's interests, the owner's cause of action for conversion accrues at that time. [Citation.]" (Naftzger v. American Numismatic Society (1996) 42 Cal.App.4th 421, 428-429, 49 Cal.Rptr.2d 784 [theft of antique coins by substituting inferior ones; held: limitations period did not commence until discovery both of theft and of possessor's identity].)
Here, there is no question that the decedent acted in a manner inconsistent with plaintiffs rights. He refused to permit plaintiff to retrieve some of her property in August 1994, forcing her to enlist the aid of a law enforcement officer to retrieve what she could. The parties' confrontations at that time put plaintiff on notice of the need to protect her property and triggered the running of the statute of limitations as a matter of law. (Naftzger v. American Numismatic Society, supra, 42 Cal.App.4th at pp. 428-429, 49 Cal. Rptr.2d 784.)
Finally, we are not persuaded by plaintiffs argument that the statute of limitations on her claim for conversion was tolled by the mutual restraining order of September 1995. Nothing in the order added to decedent's pre-existing obligation not to convert plaintiffs separate property. Nor did the order in any way prevent plaintiff from seeking the return of her property through any lawful means. (See generally, Hogoboom & King, Cal. Practice Guide: Family Law 1, supra, ¶¶ 1:355-1:357, pp. 1-99 to 1-100.)
In short, plaintiffs cause of action for conversion accrued in August 1994, it was not tolled by the later restraining order, *210 and it expired before she filed this action in July 1999.
III. Sanctions
Defendant has requested this court to consider imposing sanctions for a frivolous appeal. In light of the reversal, that request is "obviously untenable." (In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1041, 87 Cal.Rptr.2d 76.) Furthermore, defendant failed to make its request by separate motion, as required by the rules of court. (See, Cal. Rules of Court, rule 26(e).)
CONCLUSION
Our conclusions in this case may be summarized as follows:
(1) There is no substantial evidence to support the trial court's finding of laches.
(2) The expenditure of community funds for improvements to decedent's separate real property gave rise to a right of recovery under the Moore/Marsden rule, as extended by Wolfe and Allen. The nature and extent of that recovery will depend on further factual development, for which remand is required.
(3) Plaintiff has failed to prove entitlement to any personal property assets formerly belonging to the community.
(4) Plaintiffs cause of action for conversion of her separate property is timebarred as a matter of law.
(5) Sanctions are not appropriate here.
DISPOSITION
The judgment is reversed, and the cause is remanded to the trial court for further proceedings.
(1) On remand, with respect to the first cause of action of plaintiffs complaint, the trial court shall determine whether the community-funded capital improvements to decedent's separate real property enhanced its equity value.
(a) If the court determines that the improvements did not contribute to equity, then the community is entitled to reimbursement only. In that case, the court shall award plaintiff judgment in the amount of one-half of the community funds spent in capital improvements to decedent's separate property.
(b) If the court determines that the improvements contributed to an increase in the property's equity value, then the community will be entitled to a pro tanto interest in the property. The community interest is calculated by (i) determining the ratio that the community investment bears to the total investment in the property; then (ii) multiplying that ratio by the appreciation in the property's equity value during the marriage, excluding both premarital and post-separation appreciation. In such case, the court shall award plaintiff judgment of one-half of the amount calculated as the community's pro tanto interest.
(2) On remand, with respect to the second cause of action of plaintiffs complaint, the court shall enter judgment for defendant.
Plaintiff shall have costs on appeal.
WE CONCUR: BAMATTRE-MANOUKIAN, Acting P.J, and RUSHING, J.
NOTES
[1] Decedent's separate property declaration, filed in the dissolution action, valued his real property at $10,000 as of July or August 1995.
[2] The separate property interest might also include any post-marital but pre-improvement equity increases, i.e., increases occurring between the date the parties married in 1977 and the date the community began improving the property. We recognize that under the Moore/Marsden rule, apportionment typically begins with the date of marriage. That rule makes sense in the context of monthly mortgage payments, which the community presumably begins making immediately. But in the case of community improvements, which may not begin immediately upon marriage, equity may dictate awarding the separate estate any market appreciation occurring before community improvements actually begin.
[3] Because the record lacks findings as to the amount of the community's capital expenditures, the fair market value of the property when the parties married, or the fair market value of the property at the time of separation, it does not permit computation of the parties' actual respective interests. Nevertheless, for the guidance of the trial court and the parties, we offer the following calculationby way of example onlyto help clarify the elements of the formula as they apply in this case:
I. Ratio:
Total investment: $ 12,500 purchase price
+ $ 37,500 premarital appreciation
+ $ 77,500 community improvements
________
= $127,500 total investment
Separate property: $ 12,500 purchase price
+ $ 37,500 premarital appreciation
________
= $ 50,000 total separate investment
Ratio of separate property interest is $50,000 ÷ $127,500 = 39.22%
Ratio of community property interest is $77,500 ÷ $127,500 = 60.78%
II. Appreciation in Equity
(Equity is fair market value less encumbrances)
Equity at date of separation: $450,000
Less equity at date of marriage: $ 50,000
_________
Equals appreciation during marriage: = $400,000
III. Value of Community Interest
60.78% share of equity appreciation during marriage
($400,000 X .6078): $243,120
IV. Value of Plaintiffs Interest
One-half of community interest: $243,120 ÷ 2 = $121,560
V. Value of Decedent's Interest
39.22% share of equity appreciation during marriage
$400,000 X .3922): $156,880 (separate interest, equity appreciation)
+ $121,560 (one-half of community interest)
+ $ 12,500 (purchase price)
+ $ 37,500 (premarital appreciation)
________
= $328,440
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260515/
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632 F.Supp.2d 925 (2008)
INTERNATIONAL CHURCH OF the FOURSQUARE GOSPEL, Plaintiff,
v.
CITY OF SAN LEANDRO, Defendant.
No. C 07-3605 PJH.
United States District Court, N.D. California.
December 22, 2008.
*929 Kevin Trent Snider, Matthew Brown McReynolds, Sacramento, CA, Peter David MacDonald, Law Office of Peter MacDonald, Pleasanton, CA, for Plaintiff.
Jayne W. Williams, Deborah J. Fox, Kimberly M. Drake, Peter S. Hayes, Esq., Philip Alan Seymour, Meyers Nave Riback Silver & Wilson, Oakland, CA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT
PHYLLIS J. HAMILTON, District Judge.
The parties' cross-motions for summary judgment came on for hearing before this court on October 1, 2008. Plaintiff appeared by its counsel Kevin T. Snider, Matthew B. McReynolds, and Peter MacDonald, and defendant appeared by its counsel Deborah J. Fox and Jayne W. Williams. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion and DENIES plaintiff's motions.
BACKGROUND
This is a case alleging violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc ("RLUIPA"), and also asserting claims under 42 U.S.C. § 1983 for First and Fourteenth Amendment violations and violations of RLUIPA.
Plaintiff is the International Church of the Foursquare Gospel ("ICFG"). Defendant is the City of San Leandro, California ("the City"). ICFG alleges that the real party in interest is Faith Fellowship Foursquare Church ("the Church"), a congregation affiliated with ICFG, and located in San Leandro.
The Church was originally founded in 1947. When the present senior pastor, Gary Mortara, took over the management of the Church at its present location in September 1993, the congregation consisted of 65 people. The Church grew rapidly after 1993, and in April 2003, the Church completed construction of a new sanctuary on an adjacent property, with 650-700 seats. By the end of 2005, however, the Church had again outgrown its space.
According to ICFG, the Church presently conducts three religious services each Sunday for a total of more than 1700 attendees, and also runs numerous programs throughout the week, for children, the disadvantaged, women, youth, and persons struggling with addictions. The Church kitchen, which ICFG claims is smaller than the kitchen in most homes, is being used to feed between 300 and 400 people each Wednesday night. In addition, ICFG asserts that the parking lot has space for *930 only 154 vehicles, and members of the congregation are forced to park on nearby residential streets, as much as a 20-minute walk away from the Church.
In January 2006, the Church decided to look for a larger property. In February 2006, the Church found a site located on two parcels at 14600 and 14850 Catalina Street in San Leandro, comprising 3.56 acres ("the property" or "the Catalina property"). The Catalina property is located within the City's Industrial Park ("IP") zoning district, and is situated in the "West San Leandro Focus Area," which was set aside in the City's General Plan to preserve an environment for industrial and technological activity. The property is adjacent to several manufacturing plants, and is surrounded by numerous other industrial and light-industrial uses.
The property is developed with a single-story office building of approximately 46,000 square feet, and includes 188 parking spaces. ICFG claims that the Catalina property can potentially accommodate 1100 people in the sanctuary and an additional 500 in other activities (Sunday school, adult Bible studies, etc.) per service. In addition, the kitchen and food preparation area is five times as large as the kitchen in the present location. ICFG contends that there is room for nearly 500 parking spaces, and that the commercial zone where the property is located is largely vacant on week-ends. ICFG argues that moving the Church to the Catalina property will enable the congregation to more fully follow their sincerely-held beliefs.
On March 24, 2006, the Church signed a purchase and sales agreement for the property, and paid $50,000, half of a nonrefundable fee applicable to the purchase price of $5.375 million. On March 31, 2006, the Church paid the other $50,000 of the nonrefundable fee.
At the time that ICFG identified the Catalina property as a potential site for the Church, the San Leandro Zoning Code ("the Zoning Code") did not allow "assembly uses"churches and private or non-profit clubs, lodges, and organizationsto locate in the IP district or other industrial or commercial districts of the City, but did allow them to locate in districts zoned Residential ("R") if they obtained a conditional use permit.
On May 3, 2006, Church representatives met with City Planning Staff to discuss the Church's desire to use the Catalina property for religious activities. According to Debbie Pollart, who was then the City's Planning Director, Planning Staff advised the Church that under the Zoning Code, religious assembly uses were conditionally permitted uses in the City's R zoning district only, and that the Zoning Code did not permit assembly uses within the IP district.
Planning Staff further advised the Church representatives that in order for the Church to relocate to the Catalina property, two changes to the Zoning Code would be neededamendment of the Zoning Code to make assembly a conditionally permitted use in the Industrial Limited ("IL") zoning district, and an amendment of the zoning map to designate the Catalina property as IL.
Planning Staff advised the Church to apply for rezoning from IP to IL because the IL zoning district was more amenable to assembly use than the IP zoning district. According to Ms. Pollart, this is because the IL district's purpose is to provide areas of low-to-moderate intensity industrial uses which are capable of being located adjacent to residential areas and serve as a buffer between residential areas and light industry. By contrast, the IP zoning designation is meant to serve commerce, *931 high technology, production and assembly, and retail and related uses.
In early May 2006, the Church filed a planning permit application for a zoning map amendment on the Catalina property from IP to IL, to allow a subsequent application for a conditional use permit for an assembly use. The application was received by the City on either May 18 or May 19, 2006. On the same day that ICFG filed the permit application, the Church signed an amendment to their purchase and sales agreement and paid a further $50,000 nonrefundable fee, applicable to the purchase price, to extend the agreement to July 6, 2006.
After receiving the Church's application to rezone the Catalina property from IP to IL, and to amend the Zoning Code to allow religious assembly use in the IL zoning district, Ms. Pollart and other Planning Staff began discussing some of the planning and policy issues raised by the Church's application. In particular, they began discussing issues relating to the need for consistency with the City's General Plan.
On June 8, 2006, the City Council's Business Development Committee (the Mayor of San Leandro plus two members of the San Leandro City Council) met and discussed the Church's application to use the Catalina property. They expressed concerns over the policy implications of allowing an assembly use in an industrial zone.
Ms. Pollart explains that an amendment to the text of the Zoning Code to allow assembly uses in the IL zone would apply to all properties zoned IL, and would therefore have City-wide implications. In the view of Planning Staff, the expansion of assembly uses outside of residential zoning districts would represent a major shift in policy regarding the location of assembly uses in the City.
Thus, the Church's rezoning application raised a broader policy issue for the City determining which non-residential areas were appropriate for an expansion of assembly use. Planning Staff therefore advised the Church in a letter dated June 29, 2006, that the request would require careful analysis by Staff and consideration at public hearings by numerous civic advisory bodies, the Planning Commission, the Board of Zoning Adjustments, and, ultimately, the City Council, to ensure that any such change was consistent with the City's General Plan.[1]
According to Ms. Pollart, the potential for conflicts between industrial uses and assembly uses was a matter of particular concern, with a need to avoid unacceptable impacts such as noise, dust, or constant truck traffic on permitted assembly uses, as well as a need to minimize unacceptable constraints on industrial operations in order to avoid impacts on, or complaints from, permitted assembly uses. Of equal concern was the issue of potential displacement of industrial and commercial uses by assembly uses, and the resulting effects on the City's industrial employment and economic base.
The June 29, 2006, letter further advised that in light of "current staff commitments, vacation schedules, and the fact that the [Business Development] Subcommittee does not meet during the month of August, staff is anticipating returning to the Subcommittee with this matter in September." *932 Thus, following submission of the application to the Planning Commission and the Redevelopment Advisory Commission, "[a] public hearing before the Planning Commission is anticipated in October/November, followed by the City Council hearing in November/December."
On July 11, 2006, the Church signed an amendment to the purchase and sales agreement and paid an additional $50,000 nonrefundable fee, applied to the purchase price, to extend the agreement to October 31, 2006.
On October 10, 2006, Church representatives addressed the City Council during the "public comment" portion of the Council meeting, informing the Council about the proposed purchase of the Catalina property and the delays that the City had assertedly caused in the review process.
According to Planning Manager Pollart, by October 2006, Planning Staff had developed two legislative options by which the City could expand the accommodation of assembly uses in non-residential districts. Option 1 would make assembly use a conditionally permitted use in all areas zoned IL, which would increase the area in which assemblies were allowed by about 94 acres.
Option 2 would create a new "Assembly Use Overlay District," which, when applied to any non-residential property, would make assemblies an allowable use in addition to those allowed under the pre-existing zoning. Option 2 would also apply the Assembly Use ("AU") Overlay designation to certain non-residential properties identified by Planning Staff as suitable for assembly use, according to criteria Staff had developed from the City's General Plan. Option 2 would increase the area in which assemblies are allowed by over 200 acres.
On October 12, 2006, the City Council's Business Development Sub-Committee met and discussed the Church's application. Church representatives attended the meeting. The two alternatives developed by Staff were presented at the meeting. After the presentation, the members of the Sub-Committee expressed a strong preference for the second alternativethe overlay zoning approachbecause it appeared to provide greater opportunities for expansion of religious and other assembly uses in the City.
On October 19, 2006, the Board of Zoning Adjustments and the Planning Commission held a joint session during which they discussed the Church's application. Ms. Pollart explained that the two options were designed to lay the groundwork for accommodating religious and secular assembly uses in non-residential areas throughout the City, though neither option would immediately affect the Catalina property. If Option 1 were approved, ICFG would need to obtain rezoning of the property to IL. If Option 2 were approved, ICFG would need to obtain rezoning of the property to "AU Overlay."
The Church's senior pastor, Gary Mortara, urged the City to act quickly, pleading that the Catalina property had been in escrow since February, and that ICFG was obliged to complete its purchase by October 31, 2006. In response, Ms. Pollart explained that under either option, ICFG's use of the Catalina property could not feasibly be made allowable by October 31. At the close of the meeting, the City decision-makers expressed a preference for Option 2.
After the October 19, 2006, joint work session, Planning Staff continued to refine the criteria for selection of properties for inclusion in the AU Overlay zone, and began drafting proposed text for the actual Zoning Code amendments that would create the AU Overlay zoning classification and regulations.
*933 On October 23, 2006, the Church signed an amendment to the purchase and sales agreement and paid an additional $50,000 nonrefundable fee, applicable to the purchase price, to extend the agreement to December 31, 2006.
On December 7, 2006, the Board of Zoning Adjustments reviewed the proposal for the AU Overlay zone. Planning Staff had recommended that the Board review the proposed amendments and make comments that would be forwarded to the Planning Commission.
On December 29, 2006, the Church closed escrow on the Catalina property. According to ICFG, the Church could not obtain any further extensions. To close escrow, the Church made a final down payment of $53,903.39. ICFG claims that Church representatives believed there was a "good chance" that the application would be approved by the City, based on statements of City officials that other amendments for assembly uses by commercial recreation and entertainment businesses had been previously approved, and also based on supportive statements by City officials at public meetings.
On January 2, 2007, the deed of trust was recorded in Alameda County Recorder's Office, in the names of ICFG and the Church.
On February 22, 2007, the Planning Commission conducted a public hearing on the proposed AU Overlay zoning amendments. Planning Staff presented the Planning Commission with proposed amendments that would replace all references to "religious assembly" and "clubs and lodges" with a religiously neutral category of "assembly use," and would also create the new AU Overlay District.
Staff further indicated that they had identified nearly 200 properties as suitable for AU Overlay designation, using eight criteria, which Staff had developed after consulting applicable General Plan policies, and in light of the Zoning Code's stated purpose of implementing the General Plan. The eight criteria are as follows:
1) Site is not located along a major commercial corridor;
2) Site is not located within certain General Plan Focus Areas (Downtown, Bayfair, Marina Blvd./SOMAR, or West San Leandro);
3) Site is not located in regional-serving retail area (Greenhouse Marketplace, Westgate, Marina Square, or "old" Target site);
4) Site is not located inside the one-half mile study area identified for Downtown Transit-Oriented Development Strategy;
5) Site abuts or is within one-quarter mile of an arterial street;
6) Site is not located in a Residential zone;
7) Site is not considered public land, and is not zoned Public Service, Open Space, or Commercial Recreation; is not owned by an Exempt Public Agency or leased/owned by a public utility;
8) Overlay area must allow a contiguous area greater than or equal to two acres.
At the close of the public hearing, the Planning Commission unanimously recommended that the City Council approve the proposed amendments.
On March 19, 2007, the City Council approved the AU Overlay District and Map amendments, effective on May 1, 2007, passing an ordinance that consolidated and equalized treatment of secular and religious assembly uses, and establishing a new AU Overlay District. The City Council applied the new AU Overlay designation to the 196 properties (over 200 acres total) that Staff had identified as suitable. *934 Based on the selection criteria that had been utilized to select properties for inclusion in the AU Overlay District, the City Council determined that the Catalina property should not be included in the new zone.
On March 30, 2007, representatives of the Church filed an application to amend the zoning of the Catalina property from "IP" to "IP with the Assembly Use Overlay." The public hearing on the rezoning application was set for April 12, 2007.
In a report submitted to the Planning Commission for the April 12, 2007, meeting, Ms. Pollart stated that Planning Staff recommended that the Planning Commission deny the Church's application for the zoning amendment; and that Staff had considered the eight criteria listed above, which were based on the City's General Plan, and which the City had used to produce the already approved AU Overlay District covering 196 properties. The report stated that the Catalina property did not meet two of the criteriaNo. 2, because the property is located within one of the General Plan Focus Areas, and No. 5, because the property does not abut or is not located within 1/4 mile of an arterial.
The report added that the site failed to meet additional criterion of public health and safety, because the presence and the potential future presence of hazardous materials and activities in the vicinity of the Church's proposed assembly use rendered it inappropriate for rezoning within the AU Overlay District. This last conclusion was based on the fact that there were eight businesses operating under a Hazardous Materials Business Plan ("HMBP") within 500 feet of the Catalina property, and an additional 13 businesses between 500 feet and one-quarter mile of the site.
Following the close of the public hearing, the Planning Commission voted to deny the application. The Church appealed the decision to the City Council on April 16, 2007. On May 7, 2007, the City Council met to consider the appeal, and denied it in a unanimous vote.
The primary ground for denying the rezoning application was that it did not meet two of the eight criteria, as noted above. Specifically, the Catalina property is located in a General Plan "focus area" the West San Leandro Business District and is also located more than 1/4 mile from a designated arterial. Policy 7.09 of the City's General Plan establishes a policy of developing the West San Leandro industrial area as a major industrial, technology, and office employment center, and therefore a policy of promoting additional development and redevelopment of such uses while limiting encroachment of incompatible uses in the area.
Meanwhile, on March 28, 2007, the Church had submitted an application for a conditional use permit for a proposed assembly use at the Catalina property, under the existing zoning. The application stated, "We are applying for an existing permitted use, entertainment activitiessame church use conditional use permit." The Church submitted a site plan with the conditional use permit application.
Ms. Pollart reviewed the application for the conditional use permit, and determined that it could not be processed because it was incomplete. On April 25, 2007, she wrote to advise the Church that the application was missing information relating to proposed use and construction at the site. She also noted that the City had received conflicting information from the Church regarding the intended hours/days of operation for the assembly use, and that the Planning Department needed the intended days/hours of the activities for which the conditional use permit was being sought.
*935 Ms. Pollart states that the Church did not respond to any of the issues raised in her letter, and did not submit the required information. Thus, she took no further action regarding the application. She states that she understands that a complete application was eventually submitted to the City and processed at the Church's request, even though the rezoning to allow assembly uses on the Catalina property without a conditional use permit had been denied. The conditional use permit application was eventually denied by the Planning Commission, and the City Council on appeal, because of inconsistency with the zoning and additional factors such as inadequate parking space.
Following the May 7, 2007 denial of the appeal of the denial of the rezoning application, the City immediately offered assistance to ICFG to locate an alternative site within the City's AU Overlay District, and ICFG offered to work with the City toward that end in the context of settlement negotiations. ICFG apparently accepted the offer, but nevertheless filed the present lawsuit on July 12, 2007.
ICFG asserts that the denial of the Church's application for use of the Catalina property has caused, and continues to cause, economic damage to the Church. In addition to the $100,000 payment the Church made with the purchase and sales agreement on March 24, 2006, it was required to make three additional payments of $50,000, while it waited for a response to its application. Since January 2, 2007, when it completed the purchase, the Church has made monthly mortgage payments of more than $1100 a day, without being able to use the property. The Church was also forced to hire an attorney to facilitate the application with the City.
ICFG alleges that the City "intentionally delayed" the review of the Church's application for fourteen months, knowing that such delay was substantially burdening the Church's religious exercise and violating the Church's rights to freedom of speech, freedom of assembly, and free exercise of religion under the First Amendment, its right to equal protection under the Fourteenth Amendment, and its rights under RLUIPA.
In the original complaint, ICFG named as defendants the City, plus the Mayor of San Leandro and various City officials. ICFG alleged that defendants had violated the Church's constitutional rights and rights under RLUIPA by refusing to rezone the Catalina propertywhich is located in an industrial zoneto allow the Church to expand its operations from its current location.
On October 7, 2007, the court denied ICFG's motion for a preliminary injunction, finding that ICFG had failed to demonstrate either likelihood of success on the merits or the possibility of irreparable harm. The court also found that ICFG had made an inadequate showing in view of the fact that the relief sought by the motion would alter (not preserve) the status quo and would provide ICFG with essentially all the relief it was seeking in the lawsuit.
On October 23, 2007, the parties stipulated to the filing of a first amended complaint ("FAC"), and also stipulated to the dismissal from the suit of the individual defendants. Thus, the sole remaining defendant is the City.
The FAC alleges three causes of action under RLUIPA, asserting that the City's land restrictions place a "substantial burden on religious exercise" (42 U.S.C. § 2000cc(a)); that the denial of the rezoning application constitutes "treatment of religious assembly on less than equal terms with nonreligious assembly" (42 U.S.C. § 2000cc(b)(1)); and that the denial *936 of the Church's use of the Catalina property constitutes "total exclusion from jurisdiction or unreasonable limits on religious assemblies within jurisdiction" (42 U.S.C. § 2000cc(b)(3)).
In addition, ICFG alleges six constitutional claims under 42 U.S.C. § 1983 claims under the First Amendment for violation of the right to free exercise of religion, the right to freedom of speech, the right to freedom of assembly, and the right to freedom of association; and claims under the Fourteenth Amendment for violation of the right to equal protection and the right to due process.
ICFG now seeks summary judgment on the claims asserted in the FAC, and on the City's affirmative defenses. The City also seeks summary judgment on ICFG's claims.
DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003).
On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25, 106 S.Ct. 2548. If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R.Civ.P. 56(e); Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
B. RLUIPA
RLUIPA is Congress' most recent effort "to protect the free exercise of religion guaranteed by the First Amendment from government regulation." Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir.2006). RLUIPA applies only to regulations regarding land use and prison conditions. Cutter v. Wilkinson, 544 U.S. 709, 715-16, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
In the land use context, RLUIPA applies in cases where a substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which the government makes or is permitted under the law to make, individualized assessments of the proposed uses for the property involved. 42 U.S.C. § 2000cc(a)(2)(C). RLUIPA provides, in relevant part,
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that *937 imposition of the burden on that person, assembly, or institution
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc(a)(1). This is referred to as the "substantial burden" provision.
The plaintiff in a land use case challenging the denial of a conditional use permit bears the burden of proving that the governmental authority's denial of the application imposes a substantial burden on its religious exercise. Guru Nanak, 456 F.3d at 988. It is generally agreed that the term "substantial burden" in RLUIPA is to be construed in light of federal Supreme Court and appellate jurisprudence involving the Free Exercise Clause of the First Amendment. Id.
A "`substantial burden' must place more than an inconvenience on religious exercise." Id. (citation omitted). The Ninth Circuit has held that for a land use regulation to impose a substantial burden, "it must be oppressive to a significantly great extent. That is, a substantial burden on religious exercise must impose a significantly great restriction or onus upon such exercise." Id. at 988-89 (quoting San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004)). A "substantial burden" is thus one that exerts substantial pressure on an adherent to modify his behavior and to violate his beliefs. Id. at 988.
If the plaintiff establishes that the land use regulation or denial of conditional use permit imposes a substantial burden, the governmental authority must then show that the restrictions are narrowly tailored to accomplish a compelling government interest. Id. at 992. Generally, in considering the nature and context of the challenged governmental actions, the court must consider whether the action is specifically targeted at core religious activities, or whether it is purely arbitrary or fails to serve any valid purpose. In such cases, the action will likely be found to impose a substantial burden. See Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 350-51 (2nd Cir.2007).
At the other extreme, the burdens imposed by facially neutral regulations of general applicability, which were adopted for purposes unrelated to religion, are considered incidental burdens that must be borne by religious organizations and by non-religious organizations alike. Zoning regulations, absent abuse or arbitrary application, generally fall within the "generally applicable" category of regulation. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 275-76 (3rd Cir.2007).
A law is one of neutrality and general applicability if it does not aim to "infringe upon or restrict practices because of their religious motivation, and if it does not in a selective manner impose burdens only on conduct motivated by religious belief." San Jose Christian, 360 F.3d at 1032 (quotation and citation omitted). Because incidental burdens do not trigger strict scrutiny, "courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied even when the resulting effect is to completely prohibit a religious congregation from building a church on its own property." Westchester, 504 F.3d at 350; see also Lighthouse, 510 F.3d at 274-75.
Of relevance to the present case, RLUIPA further prohibits treatment on "less than equal terms," and also prohibits "exclusion," as set forth in the following provisions in subsection (b):
*938 No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
42 U.S.C. § 2000cc(b)(1). This is referred to as the "equal terms" provision.
In addition, no government shall impose or implement a land use regulation that
(A) totally excludes religious assemblies from a jurisdiction . . .
42 U.S.C.A. § 2000cc(b)(3). This is referred to as the "total exclusion" provision.
C. The Cross-Motions for Summary Judgment
ICFG argues that the City's denial of its rezoning application and request for a conditional use permit violated both RLUIPA and the First and Fourteenth Amendments to the United States Constitution. With regard to RLUIPA, ICFG asserts that the City's actions have substantially burdened the Church, and that the City has not established that its proffered interests are adequate to justify its violation of RLUIPA; that the City's actions violated both the "equal terms" provision and the "total exclusion" provision. ICFG also contends that the City's actions violated the Church's rights to free exercise of religion, freedom of speech, due process, and equal protection.
The City asserts that its actions violate neither RLUIPA nor the Constitution. With regard to RLUIPA, the City contends that its actions did not impose a substantial burden on the religious activities of the Church, and that its actions serve a compelling government interest and were the least restrictive means of protecting that interest; that its regulations do not violate the "equal terms" provision; and that its regulations do not totally exclude or unreasonably restrict religious assemblies in San Leandro.
The City also contends that ICFG's constitutional claims present no triable issue, as the City has not unconstitutionally interfered with the Church's right to free exercise of religion, or freedom of speech; has not interfered with the Church members' freedom to assemble or freedom of association; and has not violated the Church's right to equal protection of the law or due process.
1. RLUIPA claims
a. "Substantial burden" provision § 2000cc(a)(1)
In the FAC, ICFG alleges that the City's denial of the Church's request to use the Catalina property imposes a substantial burden on the religious exercise of the Church because the City's actions have significantly limited the Church's ability to fully exercise its beliefs in the commands of Jesus Christ to proclaim and propagate the Gospel, make disciples, and assist the poor. ICFG asserts that because the Church has outgrown its current facility, members and visitors are hindered in their attendance of worship services and in their participation in other religious instruction.
ICFG asserts that the denial of the Church's use of the Catalina property does not further a narrowly tailored compelling government interest of preserving property, because RLUIPA does not allow a government to use broad and discretionary land use rationales to select the precise property where a religious group can worship. ICFG also alleges that the denial of the use of the property is not in furtherance of a narrowly tailored governmental interest in public health and safety, as the City has permitted other assembly uses in the same location.
i. The City's arguments
The City argues that summary judgment should be granted on this claim because *939 its actions did not impose a substantial burden on the religious activities of the Church, and because the City's actions served a compelling government interest and were the least restrictive means of protecting that interest.
With regard to the question of substantial burden, the City makes three arguments. First, the City asserts that churches, like other uses, are not entitled to rezoning upon demand under RLUIPA. The City contends that neither RLUIPA nor the Free Exercise Clause requires cities to grant churches preferential rights over other property owners, or to "insulate" churches from the reality that the marketplace sometimes dictates that certain facilities are not available to those who desire them.
The City's second argument is that its decision not to rezone the Catalina property does not amount to a substantial burden on the exercise of religion, because any burden this imposes on the Church is an incidental result of the City's larger zoning provisions. The City notes that there is no evidence of intentional discrimination or arbitrary conduct toward the Church, and that the record instead reflects a good faith effort by the City to actually expand opportunities for religious assembly uses in the wake of the Church's initial application. The City contends that the fact that the Catalina property was not ultimately included in this expansion does not entitle ICFG to relief under RLUIPA.
The City submits that the evidence shows that its zoning provisions as a whole provide adequate sites for religious assemblies. The City notes that churches and other assembly uses have been allowed with a conditional use permit in all City residential zones for many years. Relying on documents attached to the Pollart Declaration, the City asserts that residential zones comprise more than 50% of the City, and the enactment of the Assembly Use Overlay zoning amendments in early 2007 added an additional 196 properties of various sizes, located in both commercial and industrial zones.
The City also notes that there are currently 45 churches in San Leandro, and that it has received only two applications for new church facilities in the last five years. The City asserts that the amount of extra space released for assembly use by the Assembly Use Overlay zoning amendments is thus proportionate to the demand for church space in the City.
As for ICFG's argument that there are no available sites, other than the Catalina property, which are large enough to accommodate the size of the congregation and the range of additional activities that the Church claims are essential to its free exercise of religion, the City responds that the evidence does not show that no other similarly sized sites are available.
The City provides evidence showing that there are approximately 78 sites over 3.5 acres, located in the City's residential zones. Of the parcels subject to the AU Overlay, four are over 10 acres, eight are over 5 acres, and 24 are over 2 acres; the largest parcel is 27.15 acres. Beyond this, the City notes that the AU Overlay District was deliberately applied only to parcels containing a minimum of 2 acres of contiguous land, so that smaller parcels could be aggregated to allow larger assembly uses (as is the case with the three parcels that adjoin the Catalina property).
The City also argues that ICFG has failed to show that all the Church's activities must occur at the same location, and that conducting activitiessuch as educational activities or counseling services, or the Church's food programsat alternative locations would not effectively prevent *940 the Church's members from practicing their religion.
The City contends that because burdens resulting from neutral operation of a rational zoning scheme are considered incidentalnot substantialburdens on religious exercise, the Church is not justified in insisting on a single large property of its own choosing, where that choice would require the City to jettison its adopted zoning plans to accommodate the Church's demand. The City notes that were a large chain bookstore, for example, to sue the City under the First Amendment because there were no commercially zoned parcels left in San Leandro that could accommodate the chain's desire to build a large bookstore, the suit would clearly fail. The City contends that it is under no obligation to guarantee the Church its chosen locationin contravention of neutral zoning regulationssimply because the Church is a church.
The City's third argument is that its actions have not imposed a substantial financial burden on the Church; and, moreover, that any financial difficulty the Church finds itself in was of its own making. Citing the March 24, 2006 purchase agreement, the City notes that the original offer made by the Church for the property was conditioned "upon Buyer in its sole judgment determining that the subject real property is suitable for and approved for use as a church," with the condition to "remain in full force and effect until removed in writing by Buyer," but that Church itself deleted this contingency four days later.
With regard to the second part of the § 2000cc(a)(1) "substantial burden" test, the City contends that its actions served a compelling government interest and were the least restrictive means of protecting that interest. The City claims that the principal reason for refusing to rezone the Catalina property was that the property is considered a core property for maintaining the City's industrial base, as evidenced in the City's General Plan.
The City notes that while it may not have a compelling interest in preserving every industrially-zoned parcel for industrial uses, it has a compelling interest in preserving some land for industrial use. The Catalina property site historically employed some 400 people, and the City contends that the site is uniquely important by virtue of its location and current accommodations to the preservation of a viable industrial base in the City. The City asserts that denial of the rezoning request was indisputably the only practicaland therefore least restrictivemeans of achieving the City's legitimate goal.
ii. ICFG's arguments
ICFG argues that it should prevail on this claim because the denial of the rezoning and conditional use permit requests have imposed a substantial burden on the Church. ICFG asserts that since the City denied the rezoning application, the Church has looked into dozens of other properties, but claims that none are suitable. ICFG asserts that of the properties "suggested by" the City, only one was for saleand it was under contract. In addition, ICFG contends that of the properties within the AU Overlay district, only 13 are 3 acres or morethe property size that ICFG claims is required for the Church's needs.
In support, ICFG cites the deposition testimony of Ed Bullok, identified by the City as the Church's "real estate agent." Mr. Bullok testified that all these parcels are "either dilapidated, fractionalized and irregularly shaped . . . or occupied commercial shopping centers . . . which have no interest in selling to the Church." ICFG also cites the deposition testimony *941 of then-City Manager John Jermanis. ICFG asserts that Mr. Jermanis "confirmed" that there are no properties available for the Church in all of San Leandro.
ICFG contends that the Church's "core functions" are being inhibited by the inadequate facility in which the City has "forced it to remain." ICFG claims that the inability of the Church to use the Catalina property significantly restricts its pursuit of its core tenetswhich it describes as joyous, united worship of God; local and global evangelism to lead people to faith in Christ; instruction; and works of compassion, justice, and human aid because it limits the number of members and visitors who can attend, participate in its activities, and receive spiritual help at its current location.
ICFG argues that the burdens the Church has encountered in searching for an alternative property are substantial, as is the burden it experiences by having to pay $1,100 a day for property it cannot use. It also asserts that the Church is substantially burdened by having to meet at its current location, where there is inadequate parking, and inadequate space for the large congregation to meet all together at one time. Moreover, ICFG contends, the Church is forced to turn away many vehicles every Sunday, and this means that it is severely restricted in its efforts to evangelize these non-Christians who are seeking to attend services.
As for the second part of the required "substantial burden" showing, ICFG contends that the City's proffered interests are inadequate to justify its RLUIPA violation. ICFG notes that the City has articulated only three such intereststhe preservation of sufficient land and facilities to maintain the City's industrial base; the need to maintain consistency with and to implement the City's General Plan; and the need to avoid conflicts with neighboring industrial areas. ICFG contends that none of these interests is compelling, and that the restrictions placed on the Church were not the "least restrictive means."
First, ICFG contends that preservation of sufficient land and facilities to maintain the City's industrial base is not a compelling state interest, because otherwise municipalities could exclude all religious institutions from their cities.
Second, ICFG argues that maintaining consistency with and implementing the City's General Plan is not a compelling state interest. ICFG claims that RLUIPA does not permit a government to use broad and discretionary land use rationales to select the precise property where a religious group can worship.
Third, ICFG asserts that avoidance of conflict with neighboring industrial uses is not a compelling state interest. Moreover, ICFG argues, the City has provided no evidence showing the existence of any "conflict" with other uses at the Catalina property, and has provided no authority establishing that "avoidance of conflict" is a compelling state interest.
Finally, ICFG contends that the City has not used the least restrictive means of furthering the stated compelling state interest. ICFG argues that if the City can permit commercial recreation and entertainment activities in the Assembly Use Overlay zone, it can surely permit churches.
iii. Analysis
The court finds that the City's motion must be GRANTED and that ICFG's motion must be DENIED. Courts have long recognized that burdens that are not oppressive and that are imposed on religion merely by the operation of laws of general application do not constitute "substantial burdens" on religion triggering strict scrutiny. Lighthouse Institute, 510 F.3d at *942 275-77; see also San Jose Christian, 360 F.3d at 1031.
In this case, the City's zoning scheme is clearly neutral, as it treats religious assemblies on the same footing as other assembly uses, and permits those uses with a conditional use permit in areas zoned Rwhich constitute more than 50% of the City's land area. In addition, in adopting the AU Overlay District, the City increased the area in which religious and other assembly uses could be located within the City, by adding approximately 211 acres to the total of the areas zoned R, to which assembly uses had previously been restricted. The fact that the Catalina property was not included in the AU Overlay district is an incidental consequence of a valid and clearly neutral zoning scheme.
RLUIPA does not require cities to grant churches preferential rights over other property owners, or to protect churches from the reality that the marketplace might dictate that certain facilities are not available to those who desire them. For example, in San Jose Christian, the plaintiff sued after the city denied an application to rezone property for use as a religious college. Id., 360 F.3d at 1027-28. The Ninth Circuit found that denial of the rezoning application did not impose a substantial burden. The court noted that even if the applicable ordinance may have rendered the plaintiff unable to provide worship or education services at the proposed site, there was no evidence in the record demonstrating that the applicant was precluded from using other sites in the city. Id. at 1035.
Similarly, in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir.2003), five churches sued after they were denied "special use" permits. The court rejected the RLUIPA and free exercise claims, finding that the alleged "scarcity of affordable land" and the costs of navigating the municipal permitting requirements did not constitute a substantial burden on religion where viable sites ultimately existed, and in that case, were ultimately located by the plaintiffs. Id. at 761-62.
In another Seventh Circuit case, Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846 (7th Cir.2007), the court rejected the plaintiff's RLUIPA claim, finding that a prohibition on churches in industrial zones was neither unreasonable nor a substantial burden on religion. Id. at 850-51. The court noted that where there is available land on which religious organizations may build churches in a community, the fact that they are not permitted to build anywhere and everywhere does not create a substantial burden. Id. at 851.
In the absence of a showing that the City acted arbitrarily in ways suggesting actual discrimination, the fact that there may be no other properties available to which the Church can expand its operations in the specific way it wants does not mean that the City's zoning code imposes a substantial burden on the Church. Moreover, the evidence provided by ICFG to support its claim that no other suitable properties exist is not sufficient to create a triable issue as to substantial burden.
With regard to the Bullok testimony, ICFG does not explain how Mr. Bullok is qualified to make this determination. In addition, Mr. Bullok appears to have based his evaluation solely on the Church's stated requirementscost, size of parcel, access and egress arrangement, configuration of the lot, and the construction type and configuration of the existing buildingsrather than on a detailed objective analysis of the 196 parcels in the AU Overlay District and their suitability as a location for a church. Moreover, Mr. Bullok's *943 comments are generally vague, providing no specific details as to why he deems a majority of the 196 parcels "unsuitable."
Nor does the testimony by former City Manager John Jermanis support ICFG;s position. In his deposition, Mr. Jermanis was asked: "[I]n looking at the whole issue of Faith Fellowship Church, are you aware of any locations within San Leandro which wouldwhichany buildings within San Leandro which they could acceptably locate." Mr. Jermanis responded, "No." This testimony reflects the fact that there appeared (to Mr. Jermanis) to be no other properties in San Leandro with buildings that were ready for occupancy and that also met all the Church's stated requirements. Mr. Jermanis did not testify that there were no other sites that were objectively reasonable alternatives for churches generally, or for the Church specifically, if it were willing to modify some of its demands in light of the available choices. Moreover, as the City notes, there is no indication that Mr. Jermanis was in charge of land-use issues in this case.
For a land use regulation to constitute a "substantial burden," it must be "oppressive" to a "significantly great" extent. Guru Nanak, 456 F.3d at 988. Here, however, the Church already has an operation ongoing at its current location, and ICFG has not provided any meaningful response to the City's argument that some of the Church's operations could be conducted at alternative sites. ICFG simply asserts that it is the Church's "unique core beliefs" that require that all activities be located at one facility. Carried to its logical conclusion, this argument would ultimately exempt religious assemblies (as opposed to other entities) from the requirement of complying with any zoning regulation, regardless of how neutrally applied.
As for ICFG's argument that the City's actions have imposed a substantial financial burden on the Church, the court notes that the costs of acquiring real estate and of pursuing necessary government approvals are inherent costs incidental to any acquisition and development or reuse of property, and are not normally cognizable as a burden on religion. See San Jose Christian, 360 F.3d at 1035; Civil Liberties for Urban Believers, 342 F.3d at 760-61.
Finally, while it is unnecessary for the court to reach the question whether the City has established that its actions were justified by a compelling government interest, as ICFG has not established that the City's actions constituted a substantial burden on the exercise of religion, the court finds that the City has established that it had a compelling government interest in preserving certain land for industrial use, because such preservation is required by the City's General Plan. Further, the City's actions appear to have been the least restrictive means of furthering that interest.
b. "Equal terms" provision § 2000cc(b)(1)
ICFG alleges that the City's denial of the Church's use of the Catalina property treats the Church on a less than equal basis with non-religious assemblies, because the City has approved AU amendments for commercial recreation and entertainment businesses without subjecting them to all the same criteria that it has applied to the Church, and because the City has imposed a 1/4 mile circumference from an HMBP requirement exclusively on the Church.
i. The City's arguments
The City argues that the challenged regulations do not violate the "equal terms" provision of RLUIPA, because they do not *944 treat religious assemblies or institutions differently from nonreligious assemblies or institutions.
ICFG contends that the City has violated RLUIPA because it has allowed "commercial recreation" and "entertainment activities" in the IP and IL industrial zones with a conditional use permit, whereas it permits churches and other assembly uses in those zones, but only in areas subject to the AU Overlay District. The City argues that this claim fails because commercial recreation and entertainment activities are not similar to religious assemblies or institutions in any relevant respect, and do not even qualify as "assemblies" or "institutions."
The Zoning Code defines "Assembly Uses" as "[m]eeting, recreational, social facilities of a private or non-profit organization primarily for use by members or guests, or facilities for religious worship and incidental religious education (but not including schools as defined in this section). This classification includes union halls, social clubs, fraternal organizations, and youth centers." City of San Leandro Zoning Code, Art. 3, § 1-304.
By contrast, the Zoning Code defines "Entertainment Activities" to include specified types of recurring performing events, plus dancing and electronically displayed events, but to exclude uses for "non-profit, charitable, or educational purposes of public or private institutional uses." Id. And "Commercial Recreation" is defined as "[p]rovision of participant or spectator recreation or entertainment" and includes "amusement parks, bowling alleys, ice/roller skating rinks, golf courses, miniature golf courses, and scale-model courses." Id.
Thus, the City asserts, the Zoning Code distinguishes between "assembly uses" on the one hand, and "entertainment" uses and "commercial recreation" uses on the other, and neither "entertainment" uses nor "commercial recreation" uses can be classified as "assemblies" or "institutions."
RLUIPA does not define "assembly" or "institution," and the City argues that the court must construe the terms in accordance with their ordinary, contemporary, common meaning. The City asserts that there is no evidence that Congress intended religious or non-religious "assembly" or "institution" to be equated with common types of commercial for-profit uses, such as bars, nightclubs, sports stadiums, or amusement parks.
The City notes that the common dictionary definition of "assembly" is "a number of persons gathered together, usually for a particular purpose, whether religious, political, educational, or social." The City argues that this definition suggests a group of people voluntarily gathered together for associational purposesnot a random group whose common denominator is that they paid the price of admission. The City argues that nothing in RLUIPA suggests that Congress intended to abolish the distinctions between conventionally recognized and typically non-profit assembly uses, and common commercial activities involving random aggregations of people.
The City makes a similar argument with regard to "institution," which has several common dictionary definitions, but primarily is "an organization, establishment, foundation, society, or the like, devoted to the promotion of a particular object, exp. one of public, educational, or charitable character." The City acknowledges that "institution" can be used to refer to commercial enterprises, such as banks, but argues that the term is seldom used to refer to ordinary commercial enterprises such as skating rinks and movie theaters.
*945 Thus, the City argues, since entertainment activities and commercial recreation as defined by the Zoning Code are not "assemblies" or "institutions" within the meaning of RLUIPA, it should be unnecessary to further consider whether these uses should be "similarly situated" with assembly uses.
Moreover, the City asserts, while some assembly uses and some commercial entertainment or recreation businesses may have features in common, there are also substantial differences in intensity of use, hours of operation and resulting traffic, impacts on neighboring uses and locational preferences, and profit motive. The City contends that given these differences and the historical distinction between assembly and institutional uses versus commercial uses generally, the City could lawfully determine that assembly uses as defined in the Zoning Code are not "similarly situated" to commercial entertainment and recreational uses.
ICFG's second "equal terms" claim is that the City has imposed a standard on the Church's use of the Catalina property that has not been applied to any other assembly usethat is, the requirement that the Church not be located within a 1/4 mile circumference of any business operating under an HMBP. The City contends that it has not enacted any such standard, let alone selectively applied it to the Church.
The basis for ICFG's claim is that the staff reports for the Planning Commission and City Council hearings on the Church's 2007 rezoning application recommended denial of the application in part based on the presence of some eight businesses with HMBPs within 500 feet of the Catalina property, and a total of 13 such businesses within 1/4 mile.
The City asserts, however, that the record does not show that the City Council actually relied on this fact in making the decision to reject the rezoning. Rather, the record shows that the primary ground for the denial was the fact that the Catalina property did not satisfy two of the eight criteria used to select properties to be placed into the AU Overlay Districtthe property was more than 1/4 mile from an arterial street, and was in a "focus area" reserved by the General Plan for industrial and commercial development.
Moreover, the City argues, there is no evidence that the City applied different criteria to similarly situated applicants, or either a religious or a non-religious characterthat is, no evidence that the City intentionally ignored the presence of HMBPs in the context of another similar rezoning applicationas no other applicant has ever requested rezoning of industrial land to accommodate an assembly use.
ii. ICFG's arguments
ICFG argues that the City has violated the "equal terms" provision of RLUIPA in three ways. First, ICFG contends that the City subjected the Catalina property to eight criteria that have never been applied to any other property within the jurisdiction of the City. ICFG asserts that since no other applicant for assembly use, before or since, has been subjected to the "burden" of these eight criteria, there is a showing of an "equal terms" violation under RLUIPA.
Second, ICFG contends that the City violated the "equal terms" provision by allowing entertainment and recreational assembly uses but not religious assembly use. ICFG claims that the legislative history of RLUIPA specifically identifies "recreation centers" and "places of amusement" as being comparable to religious assemblies for purposes of the statute. ICFG argues that the City allows both entertainment and commercial recreational *946 assembly uses by permit in IL and IP areas, and notes that other assembly uses in IL and IP areas include day care facilities, farmers markets, cafes, bars, business and trade schools, and full service restaurants.
ICFG contends further that the California Uniform Building Code contains a nondiscriminatory definition of "assembly," which defines an "assembly building" as a building "used for the gathering together of 50 or more persons at one time for such purposes as deliberations, education, worship, entertainment, amusement, drinking or dining, or waiting for transportation." Uniform Building Code § 203A. ICFG argues that the only difference between the Church's proposed use and these other uses is that the Church wants to use its property for religious assembly.
Third, ICFG asserts that the City violated the "equal terms" provision by placing a hazardous materials burden on the Church but not on any of the 196 properties approved for assembly use or any other assembly uses within the jurisdiction of the City. ICFG contends that denial of the rezoning request was based in part on the presence of businesses with HMBPs within 1/4 mile, and that that criterion was not applied across the board to all proposed assembly uses.
iii. Analysis
The court finds that the City's motion must be GRANTED, and that ICFG's motion must be DENIED. To establish violation of the "equal terms" provision of RLUIPA, a plaintiff must show that it is a religious assembly or institution that was subject to a land use regulation, which regulation treated the religious assembly on less than equal terms with a similarly situated nonreligious assembly or institution. See 42 U.S.C. § 2000cc(b)(1).
With regard to the application of the eight planning criteria, the evidence shows that those criteria were developed as objective planning criteria for selecting sites to be included in the AU Overlay District, and were based on policy and planning considerations set forth in the City's General Plan. More than 196 properties were found to meet the eight criteria, but the Catalina property was not one of them.
ICFG argues that the eight criteria were applied to the Catalina property on less than equal terms because the Catalina property is the only property to which they have been applied. However, the evidence shows that this argument is without merit. In determining which properties to include in the AU Overlay District, the City analyzed every non-residential property within the City limits to determine whether it met the eight criteria. The fact that the eight criteria may not have been used in deciding another application for a zoning amendment is not relevant, as there have been no other applicants other than the Church since May 2007, the effective date of the AU Overlay District.
With regard to the hazardous materials issue, there is no evidence that the City has adopted any land use regulation or policy mandating disapproval of any assembly use (including churches) based on proximity to sites with HMBPs. It is true that Planning Staff considered the presence of nearby sites with HMBPs when making the recommendation to the Planning Commission that the Church's rezoning application be denied. However, the record does not show that the presence of the HMBPs was a substantial factor in the decision by the Planning Commission or the City Council to deny the application. The primary reason for the denial was that *947 the Catalina property did not meet two of the eight criteria.
As for the claim of differential treatment of various "assembly" uses, ICFG's argument appears to be that it is the Zoning Code's differentiation among "assembly uses," "entertainment activities," and "commercial recreation" that violates RLUIPA, because all three uses involve groups of people gathered together for a purpose, but only "assembly uses" (which includes religious assemblies) are precluded from operating on property zoned Industrial unless that property is part of the AU Overlay District. In support of this argument, ICFG asserts that the legislative history suggests that "assembly" applies broadly, to any gathering of people, for almost any reason.
However, the legislative history cited by ICFG, which is entitled "Summary of Hearing Testimony," simply summarizes testimony heard by the House on alleged discrimination against religious uses. This testimony cannot be construed as reflecting the collective intent of the lawmakers who enacted the legislation that became the RLUIPA. ICFG cites to nothing in the legislative history indicating the intent of Congress that the legislation abrogate all local zoning regulations that distinguish between private or non-profit assemblies and institutions, and commercial or for-profit gatherings of multiple persons.
Similarly, the definition in the Uniform Building Code is not helpful, as using that definition would make religious assemblies the equivalent of bars, schools, and bus stations, so long as they served more than 50 persons at a timebut would not make them equivalent if they served fewer than 50 persons. There is no indication that Congress had this type of distinction in mind when it enacted RLUIPA.
The court finds the City's position more reasonable. ICFG's position, carried to its logical conclusion, would mean that the City could not zone its land for categories of uses. It is not true that the Zoning Code singles out churches and treats them on less than equal terms as other types of gatherings of persons. Under the Zoning Code, an assembly can be a church, a lodge, a social club, a union hall, a fraternal organization, or a youth center. This is a category of use that is qualitatively distinct from commercial uses or entertainment uses.
Because the Zoning Code is neutral toward churches and toward religious activity itself, the City's actions under the Zoning Code are of general application and need not be justified by a compelling governmental interest, regardless of whether they impose any incidental restrictions on religious activities. See San Jose Christian, 360 F.3d at 1030-31. The evidence shows that the City's denial of the Church's rezoning application was based on a legitimate public policy considerationthe need to preserve the City's industrial basein accordance with the City's General Plan. See General Plan Policies 7.09; 10.04.
c. "Total exclusion" provision § 2000cc(b)(3)
ICFG alleges that by denying the Church's use of the Catalina property, the City has implemented a land-use regulation that "totally excludes" religious assemblies from an area of its jurisdiction, or that unreasonably limits such uses.
The City argues that the challenged regulations do not totally exclude or unreasonably restrict religious assemblies in San Leandro. The City notes that it allows churches (with a conditional use permit) in all residential zones (more than 50% of the City), and also on 196 commercial and industrial sites in the AU Overlay District. *948 The City contends that this evidence precludes any claim that the City's regulations "exclude" religious assemblies.
In response, ICFG contends that because there is no other property in the City of San Leandro that is suitable for development under the Church's expansion plan, the City's refusal to place the Catalina property in the AU Overlay District, and its denial of the rezoning application, constitute actions that "unreasonably limit" the Church's ability to operate as it wishes to.
The court finds that the City's motion must be GRANTED, and ICFG's motion must be DENIED. The record establishes that approximately 54.6% of the land area of San Leandro is available for assembly uses, including all residential properties and 196 properties in the AU Overlay district. ICFG cannot maintain a claim under the "total exclusion" provision based simply on the fact that the Church has decided that the only property that will suit it is one that the City will not zone for assembly use.[2]
2. Constitutional Claims
ICFG alleges six constitutional claims, as noted above. ICFG argues that summary judgment should be granted as to the free exercise, freedom of speech, equal protection, and due process causes of action. ICFG does not mention the freedom of assembly or freedom of association causes of action.
The City argues that summary judgment should be granted as to all six of the constitutional causes of action, as none of those claims presents a triable issue. In its opposition, ICFG addresses what it terms the "exercise of free expression" claim, which the court interprets as a reference to the freedom of speech claim. ICFG then states that "[d]efendants' arguments as to free exercise, equal protection, freedom of association, and due process add little to the parties' prior briefings on these issues," and then references (without any details) its arguments in its own pending motion. Based on this, the court concludes that ICFG does not oppose the City's motion for summary judgment as to the freedom of assembly or freedom of association claims.
a. Free Exercise claim
ICFG alleges that the City has substantially burdened the Church's ability to freely exercise its religious faith through the City's assembly use application regulation. ICFG asserts that both on its face and as applied, the burden is not neutral or of general application, and is not narrowly tailored.
Under the Free Exercise Clause, where there are no individualized assessments on religious exercise, the rational basis test generally applies. Under that test, so long as the challenged zoning actions are of general application and are neutral toward religious activity itself, they need not be narrowly tailored nor justified by a compelling governmental interest, regardless of any incidental restrictions they may impose on religious activities. See San Jose Christian, 360 F.3d at 1030-31; see also Lighthouse Institute, 510 F.3d at 264-65, 275-77; Vision Church v. Village of Long Grove, 468 F.3d 975, 1001 (7th Cir.2006); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir.2006).
The City argues that summary judgment should be granted on this claim because there is no evidence that the City intentionally interfered with the Church's *949 right to the free exercise of religion. The City asserts that this claim fails for the same reason that the RLUIPA "substantial burden" claim fails. The City contends further that even if the Church's free exercise rights were deemed to be implicated by the denial of the rezoning application, ICFG cannot show that the City's actions inflicted a substantial burden, for the reasons explained in ICFG's arguments regarding RLUIPA.
Moreover, the City contends, the claim fails because federal courts have not recognized a First Amendment right to practice religion on any particular parcel of land, absent a showing that the proposed site possesses some special religious significance. The City notes that there is no evidence that the Catalina property possesses any intrinsic religious significance, and that there is no claim that the City has taken any action to interfere with religious activities at the Church's current location.
Finally, the City asserts that courts evaluating free exercise claims in the zoning context generally apply only the rational basis test. The City argues that the FAC does not allege any facts suggesting that the City's zoning regulations affecting the Church or churches generally are targeted at religious activity, and asserts that the regulations are neutral on their face. The City contends that the evidence shows that its actions were based on legitimate public policy considerationsthe need to preserve the City's industrial baseand that nothing more is needed to survive scrutiny under the Free Exercise Clause.
ICFG asserts that the Free Exercise Clause prohibits government regulation of religious beliefs, including government regulation of conduct relating to religious exercise. ICFG argues that the conduct that is at issue here is "the Church's ability to effectively serve the community by having a facility large enough to accommodate its members and visitors," and contends that the City's "pattern of conduct against the Church" is interfering with the Church's ability to freely exercise its religion.
ICFG argues that the City's actions should be evaluated under the strict scrutiny test because those actions are directed toward and burden the free exercise of religion. ICFG contends that the Catalina property has been "targeted" by the City, based on the fact that the Church's application for a zoning amendment to permit assembly use was denied, while comparable properties are permitted uses involving entertainment and recreation. ICFT notes that the Catalina property would have been approved for assembly use if it had met the eight criteria, and contends that the eight criteria have never been used elsewhere.
ICFG asserts that a law that "targets" religious conduct will survive strict scrutiny only in rare casesand that it will pass the test only if it is "narrowly tailored" to advance a government interest of the highest order. ICFG argues that the City has not identified a compelling, narrowly tailored state interest. ICFG contend that while the eight criteria of the City's General Plan seek to safeguard places of assembly from the hazards of commercial sites, they are too inaptly applied to promote any governmental interest in this regard.
The court finds that the City's motion must be GRANTED, and ICFG's motion must be DENIED. This claim is based on the same facts as the RLUIPA "substantial burden" and "equal treatment" claims, and fails for the same reasons. The evidence shows that the Catalina property was rejected as a site for assembly uses based on facially neutral and entirely objective planning standards, having nothing to do with religion. Such neutral regulations of general applicability need only *950 have a rational basis to survive scrutiny under the Free Exercise Clause. San Jose Christian, 360 F.3d at 1030-31.
There is no evidence whatsoever that the City "targeted" the Church for anti-religious discrimination, or that the City has taken any action to interfere with the Church's exercise of religion at the Church's current location.
b. Freedom of Speech claim
ICFG alleges that the City has deprived the Church of its right to free speech by restricting its speech rights and the congregants' corresponding right to hear. ICFG asserts that the crowded facilities, inadequate parking, and traffic congestion at the Church's present location are hindering its members and visitors from entering the Church's facilities and exercising their speech rights.
i. The City's arguments
The City argues that summary judgment should be granted on this cause of action because there is no evidence that it has interfered with the Church's freedom of speech. The City notes that ICFG does not allege that the City has taken any affirmative actions to hinder or suppress any speech activities at the Church's present location, or that any action taken by the City with regard to the zoning decisions was motivated by a desire to suppress religious speech or any other speech activity. The City asserts that ICFG's only claim is that the City has denied free speech by precluding the Church and its members from expanding the Church's operation at the Catalina property site.
The City asserts that in these circumstances, zoning regulations will be upheld against a free speech challenge notwithstanding any incidental effects on speech activity so long as the regulations meet the common First Amendment test for "time, place, and manner" restriction.
The City contends that its regulations meet all these requirements, as the zoning regulations at issue are content-neutral with respect to religious speech and expression. The City also argues that zoning regulations in general advance substantial governmental interests, and that the regulations at issue promote a substantial governmental interest that would be achieved less effectively absent the regulation. The City asserts further that the zoning regulations do not unreasonably limit alternative avenues of communication, as assembly uses are allowed in half the total area of the City, on many more properties than the apparent demand for religious uses requires.
ii. ICFG's arguments
ICFG contends that the City has restricted the Church's speech, and the rights of the individual members of the Church to hear, by not allowing the Church to move to the Catalina property. ICFG asserts that the Church's present location is overcrowded, has inadequate parking, and excessive traffic, and that those conditions restrict the number of people the Church can communicate to, and the number of people who can receive that communication from the Church.
ICFG argues that the Free Speech Clause protects both a communication's source and its recipients, and that the reciprocal right inherent in freedom of speech is imperative to an entity like the Church, where both information providers and information receivers comprise the Church's entity.
iii. Analysis
The court finds that the City's motion must be GRANTED, and ICFG's motion must be DENIED. There is no evidence that the City has interfered with the Church's speech activity at its present location. Thus, the question whether the *951 Church is entitled to expand its speech activities to a new location is governed by the traditional test for time, place, and manner regulations that do not directly regulate the content of speech. See San Jose Christian, 360 F.3d at 1032-33.
Under this test, zoning regulations will be upheld so long as they are designed to serve a substantial governmental interest, do not unreasonably limit alternative avenues of communication, and are narrowly tailored in the sense that they are directed only at the particular class of activities or land use reasonably believed to generate the type of impacts regulated by the ordinances. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
The City's zoning regulations meet all these requirements. First, the zoning regulations are clearly content-neutral with respect to religious speech and expression. They do not provide for granting or withholding permits on the basis of an applicant's speech or viewpointreligious or otherwise. Where a zoning regulation serves legitimate purposes unrelated to the regulation of speech, it is deemed to be content-neutral, even if it has some incidental effects on speech activities. San Jose Christian, 360 F.3d at 1033.
Second, zoning regulations generally advance substantial governmental interests. See City of Renton, 475 U.S. at 50, 106 S.Ct. 925. Municipalities have a legitimate interest in regulating the location of assembly uses, including churches, so as to avoid or minimize conflicts with other uses.
Finally, the "narrow tailoring" requirement is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation. See Ward, 491 U.S. at 797-99, 109 S.Ct. 2746. Here, the Zoning Code allows assembly uses in all residential zones (with a conditional use permit), and prohibits them in commercial and industrial zones only where necessary to further specific goals and policies reflected in the criteria used in establishing the AU Overlay District.
Finally, any claim that the Zoning Code unreasonably limits alternative avenues of communicationthat is, unreasonably limits the total amount of land available for expressive usesis belied by the fact that the City allows assembly uses in over half the total area of the City, on many more properties than the apparent demand for religious uses requires. The City is not required to guarantee that all those sites are currently available for sale and development for religious or other First Amendment uses. City of Renton, 475 U.S. at 53-54, 106 S.Ct. 925. "That [First Amendment plaintiffs] must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation." Id. at 54, 106 S.Ct. 925. Because the City's zoning scheme provides ample opportunities for various assembly uses, including religious assembly, zoning meets the test for valid zoning restrictions affecting the location of First Amendment activities.
c. Freedom of Assembly and Freedom of Association claims
The City seeks summary judgment on these two causes of action, and ICFG does not oppose the motion. For the reasons stated above, the City's motion is GRANTED as to these claims.
*952 d. Equal Protection claim
ICFG alleges that the City has denied the Church its right to equal protection of the laws by discriminating against the Church in its application of the laws, regulations, and plans of the State of California and the City, in a manner that was on less than equal terms with nonreligious assemblies.
i. The City's arguments
The City argues that summary judgment should be granted on this cause of action because it has not denied the Church equal protection of the law. The City asserts that this claim incorporates and is apparently based on the same allegations as ICFG's RLUIPA "equal terms" claim.
As with the "equal terms" claim, the City asserts that absent allegations of invidious intentional discriminationnot presented herethe equal protection claim must be reviewed under the rational basis test. The City argues that just as the "equal terms" claim fails, this equal protection claim fails.
The City contends that it may rationally distinguish between assembly uses on the one hand, and commercial recreational and entertainment uses on the other. The City asserts that notwithstanding ICFG's complaint that proximity of businesses with HMBPs was not considered in the initial site selection for the AU Overlay District, ICFG cannot show that the Church's rezoning application was actually rejected on that ground, as opposed to other legitimate grounds; that the City has failed to or will fail to consider HMBPs in other cases involving site-specific applications for assembly uses; or that consideration of HMBPs was arbitrary and failed to serve any legitimate public purpose.
ii. ICFG's arguments
ICFG contends that the facts in the present case are comparable to the facts in Open Homes Fellowship, Inc. v. Orange County, Fla., 325 F.Supp.2d 1349 (M.D.Fla.2004), where the court found an equal protection violation when a Christian rehabilitation center was held to comply with special zoning requirements it could not satisfy.
Here, ICFG argues that the City denied the Church's application to use the Catalina property for assembly use, but has allowed other entertainment and commercial recreational assembly uses in similarly zoned areas. ICFG contends that there is no rational basis to justify this differential treatment.
iii. Analysis
The court finds that the City's motion must be GRANTED and ICFG's motion must be DENIED. To sustain this claim, ICFG must show that it has been treated differently (and less favorably) than other similarly situated individuals or entities, and that the dissimilar treatment bears no reasonable relationship to a legitimate government purpose. (See Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221, 1225-26 (9th Cir.1990)).
Here, ICFG has not explained why the City's articulated reasons for declining to rezone the Catalina property for assembly usesi.e., preservation of the City's industrial base and traffic access considerationsare irrational, and also does not explain why the City could have no other rational basis for enacting and enforcing the relevant portions of its Zoning Code.
Moreover, the Open Homes case cited by ICFG is distinguishable. In that case, a residential Christian substance abuse recovery center sought an exception from *953 zoning regulations. The area in which the center was located was zoned R-3 (multiple family dwelling), and the permitted uses in the R-3 zone included community residential homes, fraternities, sororities, clubs, dormitories, and adult daycare centers. The defendant County denied the request, and the center filed suit, alleging, among other things, violation of RLUIPA, and violation of the Equal Protection Clause and the First Amendment.
The court found that the County had failed to offer any rational basis for believing that the center posed a special threat to the County's articulated interests (safety, traffic, and trash control, intensity of use, and general prevention of disruption to the neighborhood) and that the County had violated equal protection rights on an as-applied basis when it required the center to obtain a special exception in order to operate, but allowed similar uses (community residential homes, adult day care centers) as of right. Id. at 1357-63. However, the record was clear that the religious institution was seeking to operate a residential treatment program, not a church. Id. at 1363-64.
In the present case, ICFG does not identify any properties or applicants that were similarly situated, but were treated differently by the City. For the reasons explained above, the City reasonably distinguished among assembly uses, entertainment activities, and commercial recreation in its Zoning Code. ICFG has pointed to no other assembly use applicant that received approval of a similar zoning amendment request.
e. Due Process claim
ICFG alleges that the City deprived the Church of due process of law 1) by denying the Church the use of the Catalina property for worship, religious education, and social services, based on the City's General Plan, Zoning Map, and Zoning Code, and the AU Overlay District criteria (which ICFG claims are vague and indefinite and constitute a standard of review different in substance and form from that applied to other applicants, including distinct public health and safety criteria); and 2) by intentionally prolonging the AU Permit application process in order to obstruct, delay, and prevent the Church's use of the Catalina property.
i. The City's arguments
The City argues that summary judgment should be granted as to this claim because there is no evidence that the City violated the Church's right to due process. The City contends that the Church does not have a protected property or liberty interest in constructing religious assembly facilities on the Catalina property, and this use of the property has never been authorized and has not actually occurred. In particular, the City notes that the Catalina property has never been zoned to allow assembly uses. The City argues that the Church therefore has no protected property interest in its applications to rezone the property.
As for a possible liberty interest, the City argues that while the Church might claim a liberty interest in its right to conduct religious activities, any claim based on this theory must fail because there is no recognized liberty interest in building a church on property that has never been devoted to such use and is not zoned for it.
The City argues that the two potential claims asserted in the due process cause of actionthe "vagueness" claim and the "unreasonable delay" claimboth fail. The City contends that the vagueness claim fails for lack of a protected liberty or property interest, and that in any event, the reach of a due process challenge based on the vagueness doctrine is inapplicable here. The City contends that the Due *954 Process Clause does not restrict the factors that a governmental agency may consider when deciding whether or not to adopt or amend an existing regulation, as opposed to the way it is applied to particular conduct.
The City also contends that the "unreasonable delay" claim also fails for lack of a protected liberty or property interest, as there is no constitutional provision that requires a city to meet time limits when considering zoning or rezoning measures. The City also asserts that in this case, the record does not establish that there was any unreasonable or arbitrary delay. The City contends that the Church's initial application presented it with a major policy issue, but that it nevertheless moved forth deliberately and completed a major amendment to its existing zoning scheme within one year, and acted on the Church's subsequent rezoning application in little more time than was necessary to process the application, prepare staff reports, and notice public hearing. Thus, the City argues, there is no basis for a claim of unreasonable delay.
ii. ICFG's arguments
ICFG contends that the City's AU Overlay criteria are arbitrary, as is the HMBP restriction (which it claims was placed solely on the Church), and also asserts that the City intentionally and needlessly delayed and obstructed the Church's use of the Catalina property. Thus, ICFG argues, the City's actions were arbitrary and capricious, and fundamentally failed to promote the community's health, morals, safety, and general welfare.
iii. Analysis
The court finds that the City's motion must be GRANTED and that ICFG's motion must be DENIED. The Due Process Clause of the Fourteenth Amendment protects individuals against governmental deprivations of "life, liberty or property," without due process of law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir.1995).
The touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness (denial of procedural due process guarantees), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective (denial of substantive due process guarantees). See County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
To state a due process claim, a plaintiff must allege the deprivation of some legally protected interest in life, liberty, or property. Roth, 408 U.S. at 570-72, 92 S.Ct. 2701. Here, ICFG has failed to establish the deprivation of a constitutionally protected liberty or property interest, and has also failed to establish that some process (which the Church did not receive) was due. The Church does not have a protected property or liberty interest in constructing religious assembly facilities on the Catalina property, as this use of the property has never been authorized and has not actually occurred.
Specifically, the Catalina property has never been zoned to allow assembly uses either with or without a conditional use permit. While the Church has applied for rezoning of the property, rezoning in California is a purely legislative act. See Arnel Dev. Co. v. City of Costa Mesa, 28 Cal.3d 511, 516, 169 Cal.Rptr. 904, 620 P.2d 565 (1980). Legislative decisions are constrained only by the minimum constitutional requirement that such actions be rationally related to legitimate government interests. See id. at 520-24, 169 Cal.Rptr. *955 904, 620 P.2d 565. ICFG therefore cannot establish that the Church has a protected property interest in its applications to rezone the property.
The "vagueness" claim fails for lack of a protected liberty or property interest. Moreover, the concerns implicated by overly vague laws are that they fail to give persons of "ordinary intelligence" notice of what the laws require, and they invite arbitrary, subjective, and inconsistent enforcement by failing to establish ascertainable standards. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). These concerns are not applicable here.
The "unreasonable delay" claim also fails for lack of a protected liberty or property interest, as there is no constitutional provision that requires a city to meet time limits when considering zoning or rezoning measures. Moreover, in this case, the record does not establish that there was any unreasonable or arbitrary delay.
To the extent that ICFG is attempting to make out a claim of violation of substantive due process, ICFG has not established that the Church was deprived of some fundamental right that is not explicitly protected by another constitutional provision. See Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.2004) (protection of substantive due process is primarily reserved for liberties deeply rooted in the nation's history and tradition); see also Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (substantive due process does not extend to circumstances already addressed by other constitutional provisions).
In addition, as the City notes in its opposition to ICFG's motion, the claim that the AU Overlay criteria and the application of the hazardous materials business plan restriction (involving consideration of potential health and safety issues) were arbitrary and capricious is not supported by any citations to evidence, and therefore provides no basis for granting summary judgment in ICFG's favor.
The evidence provided by the City shows that the criteria used by the City to select properties for the AU Overlay Districtand for rejecting the inclusion of the Catalina property in that zonehave a rational connection with legitimate public zoning objectives. Ms. Pollart explains in detail in her declaration the process the Planning Department and the City went through in creating the AU Overlay District and the applicable criteria, and in evaluating the Church's application for rezoning.
Nor is there any evidence that the process of creating the AU Overlay process was unduly protracted, given the nature of the task, or that any delays occurring in the process were unrelated to legitimate planning considerationse.g., the need to gather information, to consider potential alternative courses of action, to seek direction from responsible decisionmakers, and to conduct legally-required public hearings.
CONCLUSION
In accordance with the foregoing, the court hereby GRANTS the City of San Leandro's motion for summary judgment, and DENIES ICFG's motion for summary judgment on its causes of action. ICFG's motion for summary judgment on the City's affirmative defenses is DENIED as moot.
IT IS SO ORDERED.
NOTES
[1] Under California law, a General Plan is "a statement of development policies and shall include a diagram . . . and text setting forth objectives, principles, standards, and plan proposals." It must also include designated elements. Cal. Gov't Code § 65302. In California, zoning laws must conform to the General Plan. Neighborhood Action Group v. County of Calaveras, 156 Cal.App.3d 1176, 1183, 203 Cal.Rptr. 401 (1984).
[2] The court also notes that ICFG did not address the "total exclusion" provision in its argument at the hearing on the parties' cross-motions.
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124 Cal.Rptr.2d 330 (2002)
101 Cal.App.4th 565
JOHN Y., JR., a Minor, etc., Plaintiff and Appellant,
v.
CHAPARRAL TREATMENT CENTER, INC., et al., Defendants and Appellants.
No. E029558.
Court of Appeal, Fourth District, Division Two.
August 26, 2002.
Rehearing Denied September 17, 2002.
Review Denied December 18, 2002.[**]
*333 Law Offices of Jack H. Anthony and Jack H. Anthony, Santa Ana, for Plaintiff and Appellant.
Stafford & Jackson, Timothy J. Stafford, Santa Ana; and Donna Bader, Laguna Beach, for Defendants and Appellants.
Certified for Partial Publication.[*]
OPINION
RAMIREZ, P.J.
This appeal arises out of a counselor's sexual molestation of plaintiff, John Y., Jr. (John Y.), while he lived at a group residential facility for emotionally troubled youth. John Y. appeals from a judgment notwithstanding the verdict (JNOV) in favor of defendants Victor Treatment Centers, Inc. (Victor), doing business as Chaparral Treatment Center, Inc. (Chaparral, together Victor/Chaparral), and North Valley School, Inc. (NVS, collectively Defendants), on the issue of punitive damages. John Y. also claims that the trial court erred by refusing to instruct the jury on the issue of Defendants' vicarious liability for the molester's acts, and by apportioning general damages despite Defendants' breach of nondelegable duties. Defendants have filed a precautionary cross-appeal, claiming that there was no substantial evidence to support an award of punitive damages against them, and that the punitive damages assessed were excessive. We affirm.
FACTS AND PROCEDURAL HISTORY
John Y., then 11 years old, was placed in a residential facility operated by Victor/Chaparral in April 1999. Children housed there were classified as seriously emotionally disturbed, requiring supervision one step below institutionalization. The majority of children living in the residential facility, including John Y., attended NVS, an affiliated school that maintained regular communication with the group home.
Mark Seflin (Seflin) was John Y.'s clinician while he lived at the facility. While Seflin had a degree in marriage, child and family counseling, as John Y.'s clinician he was an unlicensed "MFT" intern. As clinician, he was responsible for providing individual and group therapy for John Y. and other residents of the facility, and for ensuring their care and well-being. He also provided leadership for the treatment team. In addition to Seflin's clinical duties, certain witnesses and documents further identified him as having acted as house manager while John Y. was there. Seflin's supervisor was Sharlene Caraway (Caraway), then the assistant executive director in charge of overseeing the clinical aspect of all Victor/Chaparral residential facilities.
Steve Ayala (Ayala) first became employed at NVS, where he worked as a teacher's aide, in October 1997. During the summer of 1999, he worked most days at both NVS and the residential facility *334 where John Y. lived. As a residential counselor at the facility, Ayala was in charge of ensuring that the residents got dressed, maintained proper hygiene, did their homework, ate properly, took their medications, followed the rules and behaved themselves. Residential counselors implemented clinical orders as needed and were encouraged to develop a therapeutic relationship with the residents.
Ayala had no prior experience with emotionally disturbed children and had no classes in psychology. His basic training was limited to social skills, acting-out skills and cardiopulmonary resuscitation. He considered himself to be a counselor in that he taught academic as well as behavioral skills, but did not believe he did anything to help the residents' psychological conditions.
Approximately one or two months after Ayala began working at the facility, Seflin saw John Y. resting himself against Ayala in the television room. He felt that there was nothing unusual about the way that John Y. was touching Ayala and did not observe that the relationship between John Y. and Ayala was different or closer than between John Y. and other staff members. Still, Seflin told Ayala that such contact may be misunderstood and may make him vulnerable to allegations by children seeking to be rid of him. John Y. did say things to try to get staff fired and had, consistent with that goal, accused staff members of being child abusers and molesters. At that time Seflin also knew from NVS staff that when John Y. would get out of control, Ayala was the only one who could deal with him.
John Y. was resistant to sharing things with Seflin during their therapy sessions. Nevertheless, on November 3, 1999, at the urging of staff, John Y. told Seflin that he had been experiencing blood in his stool for a couple of months, but denied knowing what the cause might have been. John Y. stated that he had not reported it sooner because he was embarrassed and did not want to be teased. Seflin had actually learned of the problem during a team meeting weeks prior to John Y.'s report. Two staff members reported that John Y. told them about the bleeding. Seflin arranged for a doctor's appointment to be made, but staff forgot to set up the appointment and John Y. never went. Seflin did not suspect that John Y.'s rectal bleeding could have been associated with sexual abuse, although he knew it was a possible result of sodomy. It was also a possible side effect of the psychotropic medications that John Y. was taking.
Seflin did not prepare and had not seen a special incident report prepared by any staff at the facility relative to John Y.'s bleeding, nor did he notify anyone that the Chaparral client services procedure manual indicated should be notified. The quarterly report for John Y. that Seflin signed on November 3, 1999, indicated that John Y. had not needed medical attention since the last report.
On November 18, 1999, Seflin phoned John Y.'s father because he was concerned about the boy's regression in behavior since returning from his last home visit. During that conversation, Seflin was informed that John Y.'s parents wanted to discuss something with him, in person. He offered to meet with them immediately, but was told it was not an emergency. He set up an appointment with them for three days later. During that meeting, John Y.'s parents informed Seflin that Ayala had been phoning John Y. and had been to their home to visit John Y. several times, since as early as August. Although the parents did not suspect sexual abuse, Seflin told them that Ayala was displaying classic grooming behavior engaged in by molesters. The parents also told Seflin *335 about Ayala's relationship with a child named Adam.
Seflin later learned that the parents were referring to Adam M., who had been a resident at the same facility as John Y. from May 1998 through March 1999. Defendants were aware that Ayala and Adam M. had experienced "boundary issues." Boundary issues, which are common among residents of the facility, include physical contact between staff and residents, staff taking residents out, or visiting or calling them at home, and perhaps staff giving residents gifts. Physical contact between children and residential staff such as handshakes and side hugs were permissible, but front and back hugs, stroking a cheek, kissing on the forehead and sexual contacts were not, according to Victor/Chaparral policy. Although both he and Adam M. were counseled, Ayala was never given a "write-up" or threatened with termination or suspension for his behavior with Adam M.
Seflin immediately informed his supervisor, Caraway, of what he had learned from John Y.'s parents regarding Ayala's behavior. He was concerned by Ayala's violation of company policy and the parents' failure to report it sooner. At that time he became suspicious that Ayala might be molesting John Y. However, he did not timely prepare either a special incident report or a suspected child abuse report, nor did he notify John Y.'s social worker or case manager. In fact, Seflin never reported known or suspected abuse of John Y. despite the fact that he was a mandatory reporter.
Caraway told Bob Crigler (Crigler), executive director of Chaparral and NVS, about Seflin's report and on November 24, 1999, they, along with NVS principal Dr. June Moore (Moore), confronted Ayala about the reports that he had been visiting John Y. at home. Ayala denied that he had. Crigler phoned John Y.'s parents seeking confirmation of Ayala's rule violation, and left a message that they should call as soon as possible. His phone call was not returned. While no disciplinary action was taken against Ayala, Crigler advised Moore to ensure that he was not left alone with students under any circumstances.
That same day, John Y. left the residential facility for Thanksgiving. Neither he nor Ayala ever returned there. While home, John Y. told his stepmother that he had been bleeding from the rectum, so she arranged for him to be seen by a doctor. After having spoken with Seflin, John Y.'s parents thought that he might have been molested. Dr. Shah, who did not see John Y. on a referral until December 13, 1999, found that John Y.'s rectal injuries could have been caused by a number of things, one of which was sexual abuse.
Deputy Sheriff Danielle French (French) was assigned to this case that same day. When she asked John Y. if he had been sodomized and if so, by whom, he initially identified Manny Aguilar (Aguilar), another residential counselor. When Crigler was informed that the medical exams had revealed evidence of possible molestation and that John Y. had identified Aguilar, Crigler immediately suspended Aguilar and put together an investigation team.
French interviewed Aguilar, who denied the accusation and identified Ayala as having had an inappropriate relationship with John Y. Aguilar reported that Ayala was spoiling John Y. by buying him gifts, much the same way as he had done with Adam M. French informed Crigler that she suspected that Ayala, rather than Aguilar, was the guilty party. However, she asked Crigler not to initiate any investigation for a couple of days. French later concluded *336 that John Y.'s accusation against Aguilar was false.
Late in the evening on December 14, 1999, John Y.'s stepmother called and told French that he had identified Ayala. When French interviewed John Y. a second time, he identified Ayala and indicated that he had lied before in order to protect Ayala from going to jail, and to protect him from his father. John Y. reported that four incidents of sodomy occurred between October 30 and November 20, 1999.
On December 15, 1999, French went to NVS to interview Ayala, who initially lied about his sexual misconduct. However he agreed to take a polygraph, during which he admitted sodomizing John Y. on three occasions, beginning in June 1999. He was immediately arrested on suspicion of child abuse.
Crigler learned that John Y. had been sexually molested when French told him that Ayala had confessed. After Ayala's arrest, Crigler sent him a letter of termination, giving the reason for termination as abandonment of employment.
As a result of the incidents involving John Y. and Ayala, Victor was investigated by, and received a citation from, its licensing agency for violating certain regulations under California Code of Regulations, title 22 (Title 22). Title 22 sets forth the criteria under which group residential facilities, such as those run by Victor/Chaparral, are supposed to operate in order to obtain a license from the State of California. In response to the citation, Victor implemented a plan of correction. At no time has Victor/Chaparral opposed or appealed the citation.
The operative second amended complaint, filed June 15, 2000, alleged seven causes of action against Defendants, Ayala, and others not parties to this appeal. They included breach of mandatory duties, negligent supervision, general negligence, sexual battery, sexual harassment, intentional infliction of emotional distress, and assault.
After a trial, a jury found that Defendants violated alleged mandatory duties under Title 22, negligently supervised their staff, and were otherwise negligent, all resulting in damages to John Y. The jury also found that Ayala sexually battered and harassed John Y. and intentionally caused him to suffer emotional distress. John Y. was awarded $350,000 in economic and $850,000 in noneconomic damages. Victor/Chaparral was found to be 40 percent liable, and NVS and Ayala were each found 30 percent liable. Finally, the jury found that Ayala acted with malice, oppression or fraud, and that Defendants authorized or ratified his wrongful conduct. As such, after a separate trial on the issue of punitive damages, the jury assessed $1,000,000 against Victor/Chaparral, $450,000 against NVS and $65,000 against Ayala. Judgment was entered on February 8, 2001.
On February 28, 2001, Defendants filed motions for a new trial and for a JNOV, both on the issue of punitive damages. The motions were made on the grounds that the evidence was insufficient to support a finding that Defendants' director, officer or managing agent had knowledge of or ratified Ayala's actionable misconduct. Defendants also claimed that the punitive damages award was excessive. John Y. filed separate oppositions to the motions on March 8, 2001, both contending that ample evidence showed that Seflin was Defendants' managing agent and had actual knowledge of Ayala's pattern of inappropriate conduct. On April 2, 2001, Defendants filed a joint reply addressing both the opposition to the motion for new trial and to the motion for JNOV. The reply was supported by an additional declaration *337 by Defendants' attorney, portions of the trial transcript, a transcript from a sheriffs department interview of Adam M., and a page from the house log of the residential facility. John Y. filed objections to Defendants' reply on the ground that it violated Code of Civil Procedure section 659a, which requires that affidavits in support of a motion for a new trial be submitted within 10 days of the filing of the notice of intention to move for a new trial.
The motions were heard and granted on April 12, 2001. The trial court noted that the evidence was insufficient to support an award of punitive damages against Defendants in that it failed to show ratification of Ayala's conduct by Defendants' managing agent. A JNOV was entered on May 14, 2001, vacating the jury's award of punitive damages against Defendants. This appeal and cross-appeal followed.
DISCUSSION
A. Refusing to Instruct the Jury on Vicarious Liability Was Not Error
The trial court refused to instruct the jury using BAJI Nos. 13.01 and 13.06, as well as Plaintiffs special jury instructions one and two, all of which concerned the issue whether Defendants could be held vicariously liable for Ayala's acts according to the doctrine of respondeat superior. John Y. claims that this refusal was erroneous. We disagree.
Generally, if the pleadings and substantial evidence presented at trial support a particular theory of the case, the parties have a right to have the jury instructed on that issue. In reviewing whether a requested instruction was properly refused, the appellate court views the evidence in the light most favorable to issuing the instruction. (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157, 84 Cal.Rptr.2d 257.)
Equally well established is the general principle that "[u]nder the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment." (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, 227 Cal. Rptr. 106, 719 P.2d 676.) While the determination whether an employee's acts are within the course and scope of employment is usually a question of fact, where, as here, the facts are not in dispute, the issue becomes a question of law. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1019, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Farmers Ins. Group).) The issue may also be decided as a matter of law when the court concludes that "`the relationship between an employee's work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment ....'" (Maria D. v. Westec Residential Security, Inc. (2000) 85 Cal.App.4th 125, 137, 102 Cal.Rptr.2d 326.)
The scope of employment has been broadly interpreted by the courts of this state. Employer liability has been imposed when the employee was not pursuing the aim of the employment at the time of the tort, when the employee's acts were willful or malicious, and even when the acts were against the employer's rules or policies and conferred no benefit upon it. (Farmers Ins. Group, supra, 11 Cal.4th at p. 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.)
Nevertheless, an "employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297, 48 Cal. Rptr.2d 510, 907 P.2d 358 (Lisa M.).) This nexus requires "that the tort be engendered *338 by or arise from the work." (Id. at p. 298, 48 Cal.Rptr.2d 510, 907 P.2d 358.) In other words, "the incident leading to injury must be an `outgrowth' of the employment [citation]; the risk of tortious injury must be `"inherent in the working environment"' [citation] or `"typical of or broadly incidental to the enterprise [the employer] has undertaken"' [citation.]." (Ibid.) Similarly, the risk that employees will commit intentional torts of the type for which liability is sought must be predictably created by the employment. (Id. at p. 299, 48 Cal.Rptr.2d 510, 907 P.2d 358.) That is to say, the employee's conduct must not be "`so unusual or startling [in the context of the employment] that it would seem unfair to include the loss resulting from it among other costs of the employer's business.'" (Ibid.)
Our Supreme Court has stated that sexual assaults are not per se beyond the scope of every employment. (Lisa M., supra, 12 Cal.4th at p. 300, 48 Cal.Rptr.2d 510, 907 P.2d 358.) However, as with other assaults, "a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions." (Id. at p. 301, 48 Cal.Rptr.2d 510, 907 P.2d 358.) If the injury is inflicted out of personal malice or compunction, not engendered by or connected to the employment, in other words if the tort is personal in nature, there is no vicarious liability. (Farmers Ins. Group, supra, 11 Cal.4th at pp. 1005-1006, 47 Cal.Rptr.2d 478, 906 P.2d 440.) Still, the Supreme Court has also observed, in a survey of California cases, that with the exception of cases involving sexual misconduct by on-duty police officers against members of the public, employers have not been held vicariously liable for the sexual wrongdoing of their employees. (Id. at pp. 1006-1007, 47 Cal. Rptr.2d 478, 906 P.2d 440.) While that survey was completed in 1995, our own review of subsequent cases reveals that the Supreme Court's observation still holds true. (See, e.g., Maria D. v. Westec Residential Security, Inc., supra, 85 Cal. App.4th 125, 102 Cal.Rptr.2d 326; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 97 Cal.Rptr.2d 12; Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 75 Cal.Rptr.2d 777.)
It is not a simple task to determine whether Ayala's personal motivations were generated by, or were an outgrowth of, his workplace responsibilities, conditions or events. Dr. Gilbert Kliman (Dr. Kliman), a psychiatrist, testified that the phenomena of transference and counter-transference are normal and desirable components of the treatment at residential facilities. Transference occurs when a child develops affection for and begins confiding in the members of the therapeutic team. In this way the team allows the child to transfer parent/child relationship elements to them so that they can be reworked into healthy behaviors for the child. Countertransference entails the feelings of the team towards the child. Dr. Kliman believes that there was a very strong transference relationship between John Y. and Ayala. He also believes that Ayala's relationship with Adam M. showed him to be predisposed to transference relationships, and John Y.'s status as a needy child made the relationship predictable. He testified that Ayala became overwhelmed by his employment activity of getting involved with John Y. and lost control of himself. However, he also testified that when the transference relationship "becomes erotic or sexual, that's a different matter."
Certainly, the circumstances of this case render the determination a much closer call than other situations with which the courts have grappled. Nevertheless, *339 we find that as with teachers or scout leaders, the authority conferred upon Ayala to carry out his duties as a teacher's aide and residential counselor, and the abuse of that authority to indulge in personal sexual wrongdoing is too attenuated to permit a trier of fact to view his sexual assaults as within the risks allocable to his employer. Ayala's acts of sodomy were undertaken solely for his personal gratification and had no purpose connected to his employment. Further, while, with the benefit of hindsight, certain of his actions that may now appear questionable might have been engendered by events or conditions relating to employment duties or tasks, those deeds are not the actionable conduct for which vicarious liability is sought to be imposed. Thus, we conclude that the trial court did not err when it refused to issue jury instructions related to Defendants' vicarious liability for Ayala's sexual misconduct.
John Y. urges that Ayala was in the position of a therapist, and because of the transference phenomenon, his sexual misconduct was therefore foreseeable so as to give rise to respondeat superior liability. He cites Waters v. Bourhis (1985) 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469 (Waters) and Richard H. v. Larry D. (1988) 198 Cal.App.3d 591, 243 Cal.Rptr. 807 (Richard H.) for that proposition. In the first instance, despite the fact that he was part of the therapeutic team, there is no evidence to support that Ayala was a licensed psychotherapist as the cases on this point require. (See, e.g., Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 118 Cal. Rptr.2d 264; Gromis v. Medical Board (1992) 8 Cal.App.4th 589, 595-596, 10 Cal. Rptr.2d 452.) Further, neither of the cited cases supports John Y.'s argument.
In Waters, supra, 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469, the court recognized that a psychiatrist might be held liable for professional malpractice for mishandling the transference phenomenon resulting in sexual assault of a patient. (Id. at pp. 433-434, 220 Cal.Rptr. 666, 709 P.2d 469.) It did not involve any recognition that such mishandling of transference was foreseeable. In Richard H., supra, 198 Cal.App.3d 591, 243 Cal.Rptr. 807, the court did not hold that it was foreseeable that a psychiatrist would have a sexual affair with a woman seeing him for marriage counseling; it held that it was foreseeable that her husband would suffer injury from the psychiatrist's conduct if he discovered it. (Id. at pp. 595-596, 243 Cal.Rptr. 807.) As in Waters, the court concluded that the psychiatrist's actions could constitute professional malpractice. (Richard H., supra, 198 Cal.App.3d at pp. 595-596, 243 Cal.Rptr. 807.) The court did not conclude that the psychiatrist had acted in the course and scope of his employment when he engaged in a sexual relationship with a client. Rather, it merely observed that the plaintiff husband had so alleged, and his complaint was therefore sufficient to survive demurrer. (Id. at p. 596, 243 Cal.Rptr. 807.)
John Y. argues that Dr. Kliman's testimony that the transference relationship between residents and staff is encouraged provides sufficient evidence to allow the jury to decide whether sexual molestation naturally arises out of the association between residents and staff at care facilities. The argument does not hold up. The transference relationship is designed to replace the parent with the facility staff in the mind of the child. Thus, it makes no more sense to conclude that sexual molestation arises out of a staff/resident relationship based upon this testimony than it does to conclude that such acts are a normal and foreseeable part of the parent/child relationship.
*340 John Y. also argues that he presented evidence that sexual assaults by staff on residents at group homes is foreseeable, and therefore not "unusual or startling," because molestations had occurred at such facilities before and were statistically more likely in such settings. However, "[t]he question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed. The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought." (Lisa M., supra, 12 Cal.4th at p. 302, 48 Cal.Rptr.2d 510, 907 P.2d 358.) In the view of decent society, it most certainly remains both unusual and startling for a residential counselor/teacher's aide to sodomize an emotionally disturbed child whom he supervises. From this perspective it seems unfair to include the loss resulting from such a heinous and shocking crime among the losses to be expected from the operation of a residential facility. We find that the Indiana and Minnesota cases that John Y. cites in support of his position on these points are contrary to the weight of California authority and are therefore not persuasive.[1]
B. Apportioning Damages Was Not Error
John Y. contends that because the jury found that the Defendants had violated licensing regulations, which constitutes a breach of a nondelegable duty, there should have been no apportionment of fault among the Defendants and Ayala for the payment of noneconomic damages. He cites California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 65 Cal.Rptr.2d 872, 940 P.2d 323 (CAHF), and Srithong v. Total Investment Co. (1994) 23 Cal. App.4th 721, 28 Cal.Rptr.2d 672 (Srithong) in support of his assertion that Proposition 51 (Civ.Code, § 1431 et seq.) rules regarding apportionment of noneconomic damages do not apply in this case because Defendants could not delegate to Ayala their mandatory duties under Title 22. He concludes that Defendants are therefore responsible for all of Ayala's acts. Clearly this is an attempt to circumvent the fact that Defendants cannot be held vicariously liable to John Y. for Ayala's tortious acts.
CAHF, supra, 16 Cal.4th 284, 65 Cal. Rptr.2d 872, 940 P.2d 323, involved licensing regulations and citations under the Long Term Care, Health, Safety, and Security Act of 1973. (Health & Saf.Code, § 1417 et seq.) John Y. has not shown that the facilities operated by Defendants fall within this act, or that they are covered by one substantially similar. Even assuming that the holding in CAHF would extend to cover facilities such as those operated by Defendants, the case would stand for the proposition that employers such as the Defendants are responsible for the acts of their employees so far as state licensing regulations are concerned. In other words, an employer may not avoid citation and any attendant penalties under the licensing regulations by claiming that the allegedly wrongful acts were done by an employee. (CAHF, supra, 16 Cal.4th at pp. 288, 294-299, 65 Cal.Rptr.2d 872, 940 P.2d 323.) The court itself recognized that employer responsibility in the context of enforcing regulations and issuing citations is not the equivalent of employer responsibility in the context of a third party civil suit for tort damages. (Id. at pp. 295, fn. 5, 301-302, 305, 65 Cal.Rptr.2d 872, 940 P.2d 323.) We are not convinced *341 that a duty that is nondelegable insofar as complying with licensing regulations is also nondelegable in the sense that an employer will be held vicariously liable in tort for all of the acts of its employees. Certainly CAHF, supra, 16 Cal.4th 284, 65 Cal. Rptr.2d 872, 940 P.2d 323, does not stand for that proposition. Thus, it is not particularly supportive of John Y.'s claim.
In citing Srithong, supra, 23 Cal.App.4th 721, 28 Cal.Rptr.2d 672, John Y. assumes that the Defendants' duties were nondelegable for purposes of tort liability as well as for licensing, a proposition for which he has presented no authority, as noted above. Further, even if that were the case, John Y. also assumes that the delegation of duty doctrine discussed in Srithong, which involved a lessor's delegation of a mandatory duty to a third party independent contractor, applies equally to situations where an employee does an act on behalf of his or her employer. Again, he provides no authority for this proposition.
One of John Y.'s expert witnesses, Carlos Sosa, testified that Defendants' employees were hired, trained and supervised by them, and were "not free agents" or subcontractees. Therefore, it cannot be said that here there was a delegation of duty similar to that in Srithong or in other cases where the doctrine of nondelegable duty has been applied to establish vicarious liability for negligent acts. (See, e.g., 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1017, p. 410.) Indeed, the doctrine of nondelegable duty is parallel to that of respondeat superior, as both are forms of vicarious liability. Both have the aim of ensuring that the employer is responsible to innocent third parties for the negligent acts of its agents. (Ibid.; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 967, 227 Cal.Rptr. 106, 719 P.2d 676; Srithong, supra, 23 Cal.App.4th at pp. 726-727, 28 Cal.Rptr.2d 672.) They apply the same rule, but in different contexts.
Here Ayala was not an independent contractor but was the Defendants' employee. Therefore, the Defendants are liable for his acts that violated the law only so long as those acts were done in the course and scope of his employment. John Y. cannot avoid this fact, and circumvent this rule by claiming that there can be no apportionment of noneconomic damages under the doctrine of nondelegable duties.
Further, even if we overlooked the problems with John Y.'s argument discussed herein, we could not, in this case, apply the rule that he proposes. Insofar as Ayala might have committed acts that were both in the course and scope of his employment and that also constituted a basis for the finding that the Defendants had violated regulations under Title 22, the jury was not requested to make an apportionment between those acts for which Defendants might be vicariously liable and those acts for which they are not. It is inconceivable that the 30 percent fault attributed to Ayala bears no relation whatsoever to those acts that were outside the course and scope of his employment. Thus, there is no way of properly allocating the noneconomic damages as John Y. requests. His failure to request modification of the special verdict form results in his waiver of any claim that it was insufficient to enable the findings he desired. (Brown v. Regan (1938) 10 Cald 519, 523-524, 75 P.2d 1063; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960-962, 17 Cal.Rptr.2d 242.) The trial court did not err in apportioning noneconomic damages according to fault.
C. Granting JNOV on the Issue of Punitive Damages Was Not Error
1.-2.[**]
DISPOSITION
The judgment is affirmed. Defendants to recover their costs on appeal.
We concur: RICHLI, and WARD, JJ.
NOTES
[*] Pursuant to California Rules of Court, rules 9760V) and 976.1, this opinion is certified for publication with the exception of parts C.l. and C.2.
[**] Kennard and Werdegar, JJ., dissented.
[1] Stropes v. Heritage House Childrens Center of Shelbyville, Inc. (1989) 547 N.E.2d 244; Fahrendorff v. North Homes, Inc. (1999) 597 N.W.2d 905.
[**] See footnote *, ante.
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175 Ga. App. 295 (1985)
333 S.E.2d 127
OLD SOUTH BOTTLE SHOP, INC. et al.
v.
DEPARTMENT OF TRANSPORTATION.
70090.
Court of Appeals of Georgia.
Decided June 19, 1985.
Rehearing Denied July 3, 1985.
J. Garland Peek, J. Corbett Peek, Jr., for appellants.
Roland F. Matson, Senior Assistant Attorney General, J. Matthew Dwyer, Jr., John R. Strother, Jr., Beryl H. Weiner, James S. S. Howell, Special Assistant Attorneys General, for appellee.
BENHAM, Judge.
Appellee condemned property owned by appellant Brown and occupied by a business operated by appellant Old South Bottle Shop, Inc., a corporation owned by Brown and appellant Saraf. At trial, the jury awarded Brown $318,000 for the property and awarded the corporate appellant $77,000 for business losses. Appellants enumerate as error the denial of their motion for new trial, the refusal of the trial court to give a requested charge on business losses, the giving of a charge limiting the jury's consideration of business losses to lost profits, and the exclusion of testimony by a witness for appellants. We reverse.
1. The two enumerations concerning jury instructions raise the same issue: the measure of damages for the total or partial destruction of a business.
"In Bowers v. Fulton County, 221 Ga. 731 [(146 SE2d 884) (1966)] . . . , the Supreme Court held that the destruction of an established business is and must be a separate item of recovery. In discussing this question all allusions referred to `the value' of the business, and demonstrated that a business has a separate `value' from the real estate on which it is located. This opinion also dealt with the destruction of a business and not the mere damaging of a business without its complete destruction. In our opinion, if the business has suffered damage because of the taking of the real property upon which it is carried on, the correct measure of damages would be the difference in market value prior to and after the taking. While various elements, such as loss of profits, loss of customers or possibly what might be termed a decrease in the earning capacity of the business may all be considered in determining the decrease in value of the business, they represent no separate element of damage." Bowers v. Fulton County, 122 Ga. App. 45, 49 (176 SE2d 219) (1970).
Appellants' request to charge, the refusal of which is enumerated as error, tracked the language used in Bowers, supra, to describe the *296 measure of damages. Appellants also produced evidence authorizing a finding that the location of the business was unique and that the taking destroyed the business. Since the requested charge stated a correct principle of law and was supported by the evidence (see Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980)), we hold that the trial court's refusal to charge as requested was error. Wallace v. Willis, 111 Ga. App. 576 (2) (142 SE2d 383) (1965).
The charge the trial court gave on this issue, limiting business losses to lost profits, is in conflict with the rule set out in Bowers, supra, and was also error.
2. The remaining issue in this case concerns the trial court's exclusion of appellants' expert witness' testimony regarding the cash flow of the business. The trial court excluded that testimony at appellee's insistence because it did not relate to lost profits. As we have ruled, lost profits are not the only element to be considered in determining the damages resulting from the total or partial destruction of a business. On the record before us, we cannot say that appellants' witness could not connect his testimony regarding cash flow to the value of the business. Since the basis for excluding the testimony was the trial court's reliance on an incorrect principle of law (that business losses are limited to lost profits), we find that the exclusion of the evidence was erroneous.
For the reasons given above, appellants are entitled to a new trial on the issue of business losses.
Judgment reversed. Banke, C. J., and McMurray, P. J., concur.
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632 F.Supp. 178 (1986)
ALASKA AIRLINES, INC., et al., Plaintiffs,
v.
William E. BROCK, et al., Defendants, Air Line Pilots Association International, et al., Intervening Defendants.
Civ. A. No. 84-0485.
United States District Court, District of Columbia.
January 22, 1986.
*179 William T. Coleman, Jr., Richard C. Warmer, Donald T. Bliss and John Beisner, Washington, D.C., for plaintiffs.
Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., for defendants.
James W. Johnson, James W. Tello, Air Line Pilots Assn., Phillip R. Kete, Stephen Crable, Ass'n of Flight Attendants, William G. Mahoney, Clinton J. Miller, John J. Sullivan and Marvin S. Cohen, Washington, D.C., for intervening defendants.
MEMORANDUM
GESELL, District Judge.
This case involves a multitude of challenges to the Department of Labor's regulations *180 under the employee protection provisions of the Airline Deregulation Act. 49 U.S.C. § 1552. The case is before the Court after remand on motions for summary judgment or affirmance of the Secretary's regulations, there being no material facts in dispute. After reviewing the original and supplementary briefs of the parties and hearing two oral arguments on these issues, the Court makes the following rulings.
Background
When Congress passed the Airline Deregulation Act of 1978 it included an employee protection program to protect employees who had relied on employment with regulated carriers and might be displaced in the transition to a deregulated, competitive market. Airline Deregulation Act, § 43, Pub.L. No. 95-504, 92 Stat. 1705, 1750 (1978) codified at 49 U.S.C. § 1552. Although this program, § 43 of the Act, has been in effect for over seven years, its turbulent history has prevented airline employees from receiving any substantial benefits from its provisions.
Section 43 contains two prongs. The first directed the Secretary of Labor to establish a program for providing displaced workers with monetary assistance funded from the United States Treasury. 49 U.S.C. § 1552(a)-(c). Congress has never appropriated funds for this program so no implementing regulations have been promulgated and no assistance has ever been provided by the government.
In addition to this monetary assistance, the statute establishes a second program, § 43(d), which obligates the airlines to give certain "protected employees" a first-right-of-hire when filling job vacancies. The Secretary of Labor's original proposed regulations were noticed for comment in 1979 but never resulted in a final rule. 44 Fed.Reg. 19146 (1979). A revised set of proposed regulations was issued in 1982 and published as a final rule in 1983. 47 Fed.Reg. 41304 (1982); 48 Fed.Reg. 53854 (1983). On the date these regulations became effective, this Court concluded that the unconstitutional legislative veto provision of the statute was not severable from its other provisions and therefore the regulations were invalid. Alaska Airlines v. Donovan, 594 F.Supp. 92 (D.D.C.1984). The Court of Appeals disagreed and remanded the case to resolve plaintiffs' remaining challenges to the regulations. Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550 (D.C. Cir.1985), petition for cert. filed, No. 85-920 (November 27, 1985).
Due to this combination of Congressional inaction, administrative delay and litigation, protection for airline employees has remained an unfulfilled promise. Many airlines have resisted recognizing any duty to hire or taken the position that there is no duty until the Department of Labor regulations become effective. The courts are just now beginning to address the issue of whether a private right of action exists to enforce the duty to hire. See McDonald v. Piedmont Aviation, Inc., 625 F.Supp. 762 (S.D.N.Y.1986) (holding that private cause of action exists).
The Secretary has now reissued his regulations defining the airlines' duty to hire and requiring airlines to maintain a list of vacancies to assist protected employees in finding jobs. 50 Fed.Reg. 53094 (December 27, 1985). The plaintiffs, representing fifteen airlines that were certificated by the Civil Aeronautics Board prior to deregulation, argue that the Secretary's regulations are based on an erroneous and unconstitutional interpretation of the Act and that the Secretary arbitrarily and capriciously ignored the conflicts between his regulations and other legal obligations of the airlines.
Discussion
I. The Scope of the Duty to Hire.
The Airlines' primary argument is that the Secretary of Labor's interpretation of the statutory duty to hire is too broad. According to the Airlines, Congress only intended to protect the victims of deregulation not employees who are terminated due to other reasons, such as poor business practices or general business conditions. But under the Secretary's regulations there *181 is no requirement that employees show that their termination or furlough was related to deregulation. An employee is eligible for the hiring preference if he had four years of service with a single regulated airline at the time of deregulation and is involuntarily terminated or furloughed within ten years after the date of deregulation. The only exceptions from this broad definition of eligibility are airline employees who are retired, terminated for cause, on strike, or who voluntarily resign or quit. 29 C.F.R. § 220.10. The Secretary maintains that the broad scope of these regulations is compelled by the language and legislative history of the Act.
Resolving this dispute requires a careful examination of the language of the Act. Congress defined the phrase "protected employee" as a person who at the date of deregulation had been employed for at least four years by a certificated air carrier. 49 U.S.C. § 1552(h)(1). The Airline's argument that not all "protected employees" are protected by the hiring preference is not based on the language of the duty to hire, but on the language used to define those eligible for monetary assistance:
The Secretary of Labor shall, subject to such amounts as are provided in appropriation Acts, make monthly assistance payments ... to each individual who the Secretary finds, upon application, to be an eligible protected employee. An eligible protected employee shall be a protected employee who on account of a qualifying dislocation (A) has been deprived of employment, or (B) has been adversely affected with respect to compensation.
49 U.S.C. § 1552(a) (emphasis added). Congress defined a "qualifying dislocation" as a bankruptcy or major contraction of an air carrier occurring during the first ten calendar years after deregulation "the major cause of which is the change in regulatory structure provided by the Airline Deregulation Act of 1978, as determined by the Civil Aeronautics Board." 49 U.S.C. § 1552(h)(2).[1] Thus, displaced employees were required to trace their unemployment to a CAB determination that they were victims of deregulation in order to qualify for monetary assistance as a "eligible protected employee."
In defining the beneficiaries of the duty to hire program, however, Congress did not use the term "eligible protected employee," but provided that
Each person who is a protected employee of an air carrier ... who is furloughed or otherwise terminated by such an air carrier (other than for cause) prior to the last day of the 10-year period beginning on October 24, 1978, shall have first right of hire, regardless of age, in his occupational specialty, by any other air carrier hiring additional employees ...
49 U.S.C. § 1552(d)(1) (emphasis added).
The Court cannot ignore this difference in terminology or dismiss it as accident or mistake. Congress used different terms, separately and carefully defined to describe the employees eligible for these two programs.[2] Only those who are seeking monetary assistance from the government are required to make the rigorous showing that deregulation was the cause of their termination. "Protected employees" who cannot make this showing are still "protected" by the duty to hire provision.
This interpretation is consistent with the legislative history of § 43(d). The original version of the Senate Bill limited the duty to hire to protected employees who were "furloughed or otherwise terminated ... on account of a qualifying dislocation...." *182 S. 2493, 95th Cong., 2d Sess., § 22(d)(2) (1978). The House Bill was more generous, requiring that before carriers could exercise authority under the new act, the Secretary of Labor had to certify that the interests of airline employees who may be affected have been "adequately protected by fair and equitable arrangements providing levels of protection no less beneficial and protective of such interests than those established pursuant" to the employee protection provisions of the Interstate Commerce and Rail Passenger Service Act.[3] H.R. 12611, 95th Cong., 2d Sess., § 32 (1978). As is often the case, the Conference Committee produced a compromise. The Committee adopted almost all of the Senate Bill but deleted the "on account of a qualifying termination" requirement from the duty to hire provision. H.R.Rep. No. 95-1779, 95th Cong., 2d Sess. 105 (1978), U.S.Code Cong. & Admin.News 1978, p. 3737. Congress enacted this version, retaining the causation requirement for monthly assistance payments but extending the duty to hire to all protected employees terminated or furloughed within the ten year period after deregulation.
Nevertheless, the Airlines argue that even if a "qualifying dislocation" is not required, the Secretary should have considered whether some showing that the employees were terminated due to deregulation should still be required before they can invoke the duty to hire. There is no support in the statute or its legislative history for this position. The duty to hire in § 43(d) is without qualification and there is no indication that Congress delegated any authority to the Department of Labor to limit eligibility or create a system to determine which terminations are due to deregulation. The Secretary has consistently interpreted the statute according to its plain language since his first regulations in 1979. The Airlines' real quarrel is with Congress, which decided not to limit airline employees' rights with the same causation requirements found in some other labor protection statutes.
Congress's decision to make the hiring preference overinclusive may create a burden for the Airlines and lead to anomalous results in individual cases, but it is not unconstitutional. Airline representatives testified before Congress that there was no way to determine which employees were victims of general business circumstances and which were victims of regulatory reform.[4] Given this testimony it was reasonable for Congress and the Secretary of Labor to adopt a broad definition of the duty to hire in order to insure that employees who may have been displaced by deregulation receive some protection. If each employee had to demonstrate that their termination or furlough was connected to deregulation many deserving individuals might be denied the hiring preference. The fact that Congress apparently chose to be more generous with the airlines' money than with the public's does not provide any basis for the Court to impose a different interpretation and invalidate the Secretary's regulations. "We are not members of Congress, with the power to rewrite the terms of a law which may have revealed infirmities in its implementation." American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority, 778 F.2d 850, 866 (D.C.Cir. 1985).
Even if the Secretary's position was not so strongly supported by the language of the statute and its history, the Airlines have been unable to point to any indication that Congress considered this issue and intended to limit the duty to hire. The numerous statements quoted by the Airlines only indicate that Congress intended to help those who were victims of deregulation, not that they intended to exclude *183 those who could not demonstrate a connection. The Secretary of Labor's regulations are consistent with the language of the statute and his interpretation of Congress's intent is a reasonable one that must be upheld by the Court. Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In addition, it may be noted that the Secretary's regulations have been before Congress since November of 1983 and despite the Court of Appeal's decision holding that § 43(d) is severable from the unconstitutional legislative veto provision, Congress has not taken any action to alter the mandate of § 43(d) or the Secretary's interpretation of it.[5]
Finally, the Airlines also argue that the statute and the Secretary's regulations violate due process and equal protection because the duty to hire is only imposed upon airlines that had received CAB certification before deregulation and does not apply to intrastate carriers who were never certified and new airlines that have arisen since deregulation. This contention is without merit. Economic regulation must be upheld against due process and equal protection challenges unless the statute's classification is wholly irrational. At the time the Deregulation Act was passed Congress believed that regulated carriers had been the beneficiaries of a system which protected them from competition, resulting in more costly and less efficient service to consumers. S.Rep. No. 95-631, 95th Cong., 2d Sess. 113 (1978). Congress decided that the beneficiaries of regulation should bear the burden of displacements that might occur as a result of deregulation. Placing the duty to hire on all certificated carriers as of the date of deregulation may have been a crude way of achieving this result, but it is not irrational or unconstitutional.
II. Conflict with Other Legal Obligations of the Airlines.
The Secretary of Labor argues that many of the other challenges raised by the Airlines are not ripe for adjudication. It is clear that many of the questions discussed or alluded to in the parties' briefs are not yet ripe. This Court need not determine whether their airline employees have a private right of action under the act as the Secretary has suggested and one federal court has found. Nor is the question of the termination date of the program ripe for decision. Nor is the issue of whether a protected employee who subsequently finds a job with another airline can quit and invoke the duty to hire preference in seeking another job ripe.
Nonetheless, the issues Airlines have pressed are ripe for review to the extent they present facial challenges to the Secretary's rulemaking. All of the prerequisites for review are satisfied. These final rules are a final agency action. They will have a "direct and immediate" impact on the way the Airlines conduct their personnel practices. Finally, the questions of whether these regulations on their face improperly conflict with other legal obligations of the Airlines are fit for judicial resolution. Better Government Association v. Department of State, 780 F.2d 86, 92-93 (D.C.Cir. 1986).
A. Safety Considerations.
The Airlines argue that three aspects of the Secretary's regulations interfere with their obligation to maintain the highest possible standard of safety. Although there is no indication that Congress considered how the employee protection provisions were to relate to safety concerns, it did state that implementation of the Deregulation Act should result in "no diminution of the high standard of safety in air transportation attained in the United States on October 24, 1978." 49 U.S.C. § 1307(a). Congress and the courts have repeatedly emphasized that airlines are under a legal obligation to operate *184 with the highest possible degree of care. Murnane v. American Airlines, 667 F.2d 98, 101 (D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982).
The Airline's first objection on safety grounds has been thoroughly and adequately answered by the Secretary in the course of the rulemaking. The Airlines argue that the regulations' requirement that they keep a vacancy open for thirty days in order to allow a protected employee to apply for the position imposes an unworkable requirement that will, among other things, impairs safety. See 29 C.F.R. § 220.24. The Secretary addressed these concerns in promulgating the final rule and concluded that they were speculative in light of the industry's practice of accepting advance applications and any problems could be mitigated by maintaining files of advance applications or listing anticipated vacancies. 50 Fed.Reg. at 53095 (1985). Employees unexpectedly die, retire, become ill or resign everyday and the airlines are able to adjust by hiring temporary employees or reassigning staff without jeopardizing their safety record. The Secretary's imposition of a waiting period was not arbitrary or capricious.
The Airlines' second safety concern raises one rather technical defect. The regulations permit carriers to apply any prerequisites or qualifications they desire, except limitations based on seniority, recall rights or previous experience with another airline and initial hiring age (excluding retirement ages). 29 C.F.R. § 220.21. Because the initial hiring age of flight officers and pilots may affect the amount and adequacy of the training and experience they receive, the courts, in the context of the Age Discrimination Act, have recognized otherwise impermissible initial age requirements may be bone fide occupational qualifications because of the safety obligations of the airlines. Murnane v. American Airlines, 667 F.2d 98, 101 (D.C.Cir. 1981), cert. denied 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982). Although the Airline Deregulation Act states that the duty to hire shall apply "regardless of age," another judge of this court, in construing Congress's intent in this provision, concluded that Congress must not have intended to prohibit age requirements imposed for safety reasons. "Only this interpretation preserves the important occupational qualifications required in the interest of air safety." Murnane v. American Airlines, Inc., 482 F.Supp. 135, 153 (D.D.C. 1979), aff'd, 667 F.2d 98.
Although the interpretation in the Murnane decision is "dicta," it demonstrates that the Airlines' concern is a substantial one. The arguments now advanced by counsel for the Secretary for a different interpretation may be correct, but they are still after-the-fact rationalizations that cannot satisfy the need for the Secretary himself to address such an important issue when it is raised in rulemaking comments, as it was here. Action On Smoking and Health, 699 F.2d 1209, 1216 (1983); Ace Motor Freight v. I.C.C., 557 F.2d 859, 864 (D.C.Cir.1977). Invalidating the entire rule under these circumstances is obviously not an appropriate remedy. The Court will invalidate the provision on initial hiring age as to flight officers and pilots alone, and remand the issue to the Secretary for further explanation.[6]
The Airlines' final safety complaint is meritless. They object that the regulations prevent them from hiring the "safest" employees possible because they have a duty to hire protected employees first. This objection was never raised in any significant way during the rulemaking. It is not a real conflict, but an effort by the Airlines to create an apparent conflict that would undermine the language and purpose of the statute. If carriers had absolute discretion to choose the "safest" applicants, the hiring preference would be virtually meaningless. Moreover, aside from *185 the restrictions mentioned above, the regulations permit carriers to require that job applicants, including protected employees, meet any standard qualifications the carriers' desire and give them discretion in choosing from among the pool of protected employees who meet these requirements. Finally, it is inherent in the statute itself that protected employees will already be experienced in their fields and airline safety.
B. Equal Employment Opportunity.
The Secretary's regulations provide that the duty to hire shall take precedence over any equal employment opportunity obligations unless the airline is subject to a specific equal employment requirement pursuant to a federal court or administrative order, consent decree or conciliation agreement providing relief by virtue of the carrier's unlawful employment discrimination and the airline cannot meet these requirements from the pool of employees eligible for the hiring preference. 29 C.F.R. §§ 220.01(j); 220.29. The Airlines' object that the exemption is inadequate because it conflicts with their general obligation under Title VII and other statutes and does not cover voluntary decrees which contain no admission of unlawful discrimination.
There is no merit in this contention. There is no facial conflict between Title VII and the Secretary's regulations under the Airline Deregulation Act. An individual decision or a pattern of hiring decisions dictated by the statute's duty to hire could not be the basis for a claim of unlawful discrimination against a carrier. The Airlines' challenge is largely based on a misinterpretation of the regulations, which the Department of Labor says includes any valid equal employment opportunity agreement, with or without a recital of liability. Unlike the comments on safety and hiring age, the Secretary directly addressed the Airlines' comments on conflicts with equal employment obligations by consulting with the Equal Employment Opportunity Commission, amending the initial rule to provide more flexibility and giving his reasons in the statement on the final rule. 50 Fed.Reg. at 53095-96 (1985). His conclusion that the duty to hire should take precedence, except in those instances provided in the rule, is a reasonable accomodation of the conflicting policies.
C. Conflict with the Railway Labor Act.
The Airlines' final objection is that the regulations improperly upset the delicate employer-employee "balance" established by the Railway Labor Act by giving terminated strikers rights under the duty to hire. The contention that this will some how "tilt" the balance in a way that is inconsistent with the statutory scheme for handling labor disputes is based on the most imaginative type of speculation. The Secretary directly and adequately addressed this supposed "conflict" in fashioning the final rule and his decision was a reasonable accommodation of the policies involved.
The remaining objections in the Airlines' broadside attack are equally frivolous and must be rejected. An appropriate order dismissing the complaint, except with respect to the initial hiring age of flight officers and pilots, as indicated above, is filed herewith.
NOTES
[1] A "major contraction" is defined as a reduction by at least 7½ percent of the total number of full-time employees of an air carrier within a 12-month period. 49 U.S.C. § 1552(h)(4).
[2] The duty to hire provisions of § 43(d) does use the phrase "eligible protected employee" to establish a special duty on the Secretary to assist those employees receiving monetary assistance from the government in obtaining reemployment. 49 U.S.C. § 1552(d)(2), (3). Congress's special concern with having these employees rehired appears to have been based on the fact that encouraging these employees to invoke the duty to hire would minimize the costs of the monetary assistance program.
[3] § 5(2)(f) of the Interstate Commerce Act, 49 U.S.C. § 11347; § 405 of the Rail Passenger Service Act, 45 U.S.C. § 565.
[4] Statement of Richard J. Ferriss, President, United Airlines, Hearings before the Subcommittee on Aviation of the Committee on Public Works and Transportation of the House of Representatives on H.R. 8813, 95th Cong., 1st Sess. 1368 (1977).
[5] The Airlines have also voiced a last minute objection that the reissued regulations have not been submitted to Congress for the sixty-day period required by § 43(f), 49 U.S.C. § 1552(f). Since these regulations are substantially the same as those submitted to Congress in 1983 no resubmission is required.
[6] The Secretary need not reopen the existing record if he finds that it is adequate to address this issue on remand.
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