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