Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|The Courts Are Awash In Appeals!|
The Courts Are Awash In Appeals!
The appellate courts in California consider many appeals from trial court decisions each year on a variety of subjects. During the one year period ending June 30, 1994, the most recent period for which figures are available, the six Courts of Appeal in California considered 21,386 appeals and petitions. The California Supreme Court (7 Justices) received 4,650 petitions for review, 1,675 petitions, and 27 direct appeals arising out of death penalty cases. The California Supreme Court also considered 433 state bar disciplinary proceedings. The Supreme Court is not obligated to consider every case presented to it for review. During this particular year, the California Supreme Court accepted for consideration only 134 of the 4,650 petitions for review which were submitted to the court. The following cases indicate the range of issues considered by the appellate courts! In one matter, it was reported that a balcony collapsed on an ocean front residence during a party. Personal injury and wrongful death complaints resulted. The defendants in these suits included the brokers who were involved in the sale of the residence. The Court of Appeal determined that the issue of whether the real estate brokers knew or should have known of the defects in the property was not relevant because they owed no duty to the party goers, with whom no relationship existed. Although a real estate broker may owe a duty to its customer to warn of defects in a residence under certain circumstances, such a duty does not extend to guests of the customer who were injured as a result of the defect. FSR Brokerage, Inc. vs. Superior Court, 35 Cal.App.4th 69 (1995). In a case involving the California state lottery, two California lottery winners entered into an agreement assigning their annual installments in exchange for immediate lump sum cash payments. The Court of Appeal, citing appropriate Government Code sections governing the lottery, determined that such an assignment of lottery winners is not allowed. The court observed that the practice of paying out large prizes in installments over many years indicated an attempt to provide parens patriae protection for lottery winnings "against their human frailties and possible excesses." R&P Capital Resources, Inc. vs. California State Lottery, 31 Cal.App.4th 1033 (1995). In a suit involving Wells Fargo Bank, the plaintiffs sought recovery for the negligent payment of forged checks. The California Commercial Code requires a customer to discover and report forgery within one year from the time the customer receives a statement; otherwise, the customer is precluded from asserting the claim against the bank. The court reported that certain checks at issue in the action were written between January 24, 1989 and March 27, 1991. The forgeries were not reported to the bank until January 31, 1992. The plaintiff was not permitted to recover upon checks that were included in statements beyond the one year period preceding the date of report to the bank. Roy Supply, Inc. vs. Wells Fargo Bank, 39 Cal.App.4th 1051 (1995). In another case, the plaintiff, having been expelled from a country club, sought to have his membership reinstated. The trial court reinstated his membership, and the club appealed. Women members of the club sent a letter to the board of directors complaining that the plaintiff made vulgar, filthy and demeaning remarks in the presence of women members. The plaintiff was notified of an expulsion hearing and invited to appear. The notice referred to the complaint of the women and "past offenses" that had been committed by the plaintiff. At the expulsion hearing, witnesses were not presented and no documents were offered other than the original letter of complaint from the women. The plaintiff appeared and denied using "filthy, vulgar language." The plaintiff did, however, admit to telling his wife that the women were "a bunch of old hags." The plaintiff denied all charges and complained that he had not been given any of the witnesses' names. The board advised him that the names were not provided because the witnesses were scared of him. The board thereafter excused the plaintiff and went into closed session. The board discussed the incident that gave rise to the women's complaint, as well as ten additional matters that had not been discussed in the plaintiff's presence. The board thereafter voted unanimously to expel the plaintiff from the club. The trial court, reinstating the plaintiff's membership, ruled that the plaintiff was deprived of a fair hearing because the plaintiff was not permitted to confront two complaining witnesses and the identify of other witnesses was concealed from him. In addition, the board considered allegations of which the plaintiff had not been given notice and to which he therefore made no response. The appellate court agreed and affirmed the trial court's decision. Aluisi vs. Fort Washington Golf & Country Club, 36 Cal.App.4th 799 (1995). The due process afforded to a country club member under the law does not, however, govern the rules of your Saturday night card game. If one of your players is a bum, throw the bum out!
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1996-2002