150 F.3d 1055
77 Fair Empl.Prac.Cas. (BNA) 521,73 Empl. Prac. Dec. P 45,410, 128 Ed. Law Rep. 110,98 Cal. Daily Op. Serv. 5415,98 Daily Journal D.A.R. 7585
James D. KEETON;  John P. Keith;  Robert C. Bay;  Alfred F.Soprano, on behalf of themselves and all otherpersons similarly situated, Plaintiffs-Appellees,v.UNIVERSITY OF NEVADA SYSTEM;  Carolyn Sparks;  ShelleyBerkley;  Jill Derby;  James Eardley;  Joseph Foley;Dorothy Gallagher;  Daniel Klaich;  Madison Graves;  Paul E.Meacham, Defendants-Appellants.
No. 97-17184.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 11, 1998.Decided July 10, 1998.

Marc P. Cardinalli, Asst. Gen. Counsel, University and Community College System of Nevada, Las Vegas, NV, for defendants-appellants.
Paul V. Carelli, III, Carelli & Miller, Las Vegas, NV, for plaintiffs-appellees.
Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding.  D.C. No. CV-94-00333-LDG/RLH.
Before:  HALL and THOMAS, Circuit Judges, and MOSKOWITZ,1 District Judge.
THOMAS, Circuit Judge:

1
We consider in this case whether Congress had the power and intent to abrogate the states' Eleventh Amendment immunity from claims under the Age Discrimination in Employment Act.  We conclude that Congress satisfied the prerequisites to abrogation, and affirm the district court's order so holding.

2
The plaintiffs, all educators and employees of the University of Nevada and the University of Nevada System, instituted the instant class action in the United States District Court for the District of Nevada on April 5, 1994 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA").  Plaintiffs allege that the Defendants subjected full-time educators over the age of forty holding graduate degrees to inequitable and discriminatory treatment based on age.  Plaintiffs requested monetary, injunctive, and declaratory relief.

3
Defendants moved to dismiss the action for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1).  The district court granted the motion with regard to the Plaintiffs' Title VII claim, but denied the motion as to the ADEA cause of action, finding that Congress had abrogated the states' sovereign immunity pursuant to its authority under section 5 of the Fourteenth Amendment in enacting the 1974 amendments to the ADEA.  We review this determination de novo, see Hyland v. Wonder, 117 F.3d 405, 413 (9th Cir.), amended on denial of reh'g by 127 F.3d 1135 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1166, 140 L.Ed.2d 177 (1998), and affirm.

4
* In Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the United States Supreme Court articulated a two-part test for determining if Congress has abrogated a state's immunity:  "[F]irst, whether Congress has unequivocally expressed its intent to abrogate the immunity, and second, whether Congress has acted pursuant to a valid exercise of power."  Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (citation and internal quotation marks omitted).

5
* The ADEA contains the "clear legislative statement" that the Supreme Court established as a prerequisite for congressional abrogation of Eleventh Amendment immunity even before its decision in Seminole Tribe, see, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute."), superseded on other grounds by 42 U.S.C. § 2000d-7.  Albeit in dictum, the Court has recognized Congress' intention in amending the ADEA to abrogate states' immunity:  "[T]here is no doubt what the intent of Congress was:  to extend the application of the ADEA to the States."  EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983).

6
Every circuit which has considered the question, save one, has arrived at the same conclusion.  See Goshtasby v. Board of Trustees of the Univ., 141 F.3d 761, 765-66 (7th Cir.1998) (reaffirming earlier decision that Congress "could not have made its desire to override the states' sovereign immunity clearer" in its 1974 amendments to the ADEA, unless Congress had explicitly stated it was abrogating sovereign immunity);  Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1544 (10th Cir.1997) ("We have no reason to question our [earlier] decision ... that Congress intended to abrogate state sovereign immunity by enacting the 1974 amendments to the ADEA.");  Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 695 (3d Cir.1996) ("The [ADEA] simply leaves no room to dispute whether states and state agencies are included among the class of potential defendants when sued under the ADEA for their actions as 'employers.' ");  Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 31 (2d Cir.1991) (including ADEA as example of "legislation that has clearly stated Congress' intention to abrogate states' immunity from damage actions in a variety of contexts") (dictum);  Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir.1983) ("[T]he ADEA's express authorization for the maintenance of suits against state employers comprises adequate evidence to demonstrate the congressional will that Eleventh Amendment immunity be abrogated.");   but see Kimel v. Florida Bd. of Regents, 139 F.3d 1426, 1430-33 (11th Cir.1998) (Edmondson, J.).

7
We join the overwhelming majority of our sister circuits in holding that Congress clearly expressed its intention to abrogate states' immunity in private suits for violations of the ADEA.  When enacted, the ADEA only applied to private employers.  EEOC v. Elrod, 674 F.2d 601, 605-06 (7th Cir.1982).  The 1974 amendments to the ADEA expanded the definition of "employee" to include "employees subject to the civil service laws of a State government."   Fair Labor Standards Amendment of 1974, Pub.L. No. 93-259, 88 Stat. 74.  With the specific inclusion of State governments in the 1974 amendments, Congressional intent could hardly be clearer.

B

8
Contrary to defendants' assertions, Congress had the power to effectuate its abrogation intention, thus satisfying the second prong of Seminole.   The legislative history and development of the ADEA clearly establish that Congress relied upon the enforcement clause of the Fourteenth Amendment in enacting the 1974 ADEA amendments.

9
Defendants rely on the ADEA's express invocation of the Commerce Clause for the proposition that Congress was not relying upon the Fourteenth Amendment as the source of its authority.  However, Congress need not expressly invoke the Fourteenth Amendment in order to legislate pursuant to its Fourteenth Amendment enforcement powers.  See Clark v. California, 123 F.3d 1267, 1271 (9th Cir.1997) (observing that "the constitutionality of action taken by Congress does not depend on recitals of powers which it undertakes to exercise"), cert. denied, U.S. ----, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998).  Rather, Congress' power under section 5 of the Fourteenth Amendment broadly encompasses "appropriate legislation"--legislation that "may be regarded as an enactment to enforce the Equal Protection Clause, [that] is plainly adapted to that end, and [that] is not prohibited by but is consistent with the letter and spirit of the constitution [sic]."  Katzenbach v. Morgan, 384 U.S. 641, 650-51, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).

10
The 1974 amendments to the ADEA fulfill each of these three criteria.  First, the legislative history of the amendments reveals Congress' purpose to extend to state and local government employees the protections against age-based discrimination in employment that private-sector workers had previously enjoyed, protections that were aimed at ending the arbitrary, discriminatory government conduct that the Equal Protection Clause targets.  See Senate Comm. on Labor and Public Welfare, S.Rep. No. 93-690, House Comm. on Education and Labor, H. Rep.  No. 93-913 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2849.

11
Second, the 1974 ADEA amendments are "plainly adapted" to furthering the aims of the Equal Protection Clause.  The amendments' practical effect was to enlarge the ADEA's antidiscrimination guarantees by placing public and private employees on the same footing.  The existence of age-based discrimination in government employment gave Congress an ample rationale for intruding upon any state interests that the previously private character of the ADEA's prohibitions may have served.  See Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699 (1st Cir.1983).  Finally, the remedies the 1974 amendments offer are not prohibited by, but are consistent "with the letter and spirit of the constitution."   The absence of any judicial determination that the Equal Protection Clause forbids discrimination against older workers does not preclude Congress from enforcing the Equal Protection Clause by prohibiting such discrimination in the private and public sectors alike.  See Katzenbach, 384 U.S. at 648, 86 S.Ct. 1717.   A contrary result "would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment."  Katzenbach, 384 U.S. at 648-49, 86 S.Ct. 1717 (citation and internal quotation marks omitted).  Thus, the Defendants have not sustained their burden of establishing their entitlement to Eleventh Amendment immunity, see Hyland, 117 F.3d at 413.

II

12
The district court correctly concluded that Congress abrogated the states' immunity in amending the ADEA pursuant to its Fourteenth Amendment enforcement authority.  Accordingly, we affirm the order of the district court.

AFFIRMED

1
 Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation


                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1111
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Scott Ristine,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 13, 2003

                                  Filed: July 2, 2003
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Scott Ristine pleaded guilty to one count of receiving child pornography. He
now appeals various supervised-release conditions imposed by the District Court1 that
restrict his possession of pornography, his use of photographic equipment and
computers, and his access to the Internet. We affirm.

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                           I.

       The Colorado Springs Police Department ran an undercover operation in which
an officer posed via the Internet as a guide for persons interested in overseas tours
during which participants could have sex with minors. From his home computer,
Ristine contacted the undercover officer and stated his desire to sign up for such a
tour. Ristine later told the officer that he could not afford the cost of a tour, but he
indicated interest in videos and photographs sold by the tour company. The officer
emailed Ristine a catalog of videotapes, and Ristine ordered, over email, a videotape
titled "The Sex Party" that was described in the catalog as featuring boys and girls
under age ten engaging in sexual acts. After a controlled delivery of the video to
Ristine's residence, law enforcement agents executed a search warrant at the residence
and found the videotape, which Ristine admitted to ordering. He also admitted to
possessing thousands of child pornography images that he downloaded from the
Internet and to exchanging these images with other Internet users. By the time the
agents completed their search, they had uncovered 111 floppy disks containing
pornographic images of children, two computer hard drives with such images, and
three videotapes of child pornography.

       After pleading guilty to one count of receiving child pornography, the District
Court sentenced Ristine to twenty-seven months of imprisonment with three years of
supervised release subject to eight special conditions. On appeal, Ristine claims that
four of his release conditions violate 18 U.S.C. § 3583(d)(2) (2000) because they
constitute a greater deprivation of liberty than is reasonably necessary to achieve their
purposes.

                                           II.

      We generally review the terms and conditions of supervised release for an
abuse of discretion. United States v. Kent, 209 F.3d 1073, 1075 (8th Cir. 2000).

                                          -2-
When a defendant failed to raise a timely objection to those terms, however, our
review is only for plain error. United States v. Crose, 284 F.3d 911, 912 (8th Cir.
2002) (per curiam). "Plain error occurs if the district court deviates from a legal rule,
the error is clear under current law, and the error affects the defendant's substantial
rights." Id. Here, Ristine did not object at sentencing to the release conditions that
he now appeals, but he argues that we should use an abuse of discretion standard, and
not plain error, because his failure to object stemmed from his lack of notice that the
challenged conditions would be imposed. We reject this argument for two reasons.
First, there is no case law in our Circuit to support it. Second, we find unpersuasive
the two cases Ristine cites from other circuits that he believes lends credence to his
position. United States v. Scott, 316 F.3d 733, 734 (7th Cir. 2003), is not in point
because the defendant in that case opposed the challenged condition at sentencing.
United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002), cert. denied, 123 S. Ct.
981 (2003), does involve a defendant who failed to object at sentencing to a
challenged condition; in that case, the Second Circuit decided to "relax the otherwise
rigorous standards of plain error review" because the defendant lacked prior notice
that the District Court would impose the challenged condition and because
"correcting a sentencing error results in, at most, only a remand for resentencing or
. . . for a modification of the allegedly erroneous condition of supervised release." Id.
We decline to read our precedent to call for a relaxed standard based on these
justifications. Accordingly, we review for plain error.

                                           A.

       Ristine first challenges a special condition of supervision that prohibits him
from owning or possessing "any pornographic materials." See Judgment Order at 4
(December 30, 2002). The condition also bans his use of "any form of pornography
or erotica" and his entry into "any establishment where pornography or erotica can
be obtained or viewed." Id. Ristine's argument is that the restrictions concerning

                                          -3-
pornography in this condition are overbroad and vague.2 To the extent the restrictions
are overbroad, he argues that they prevent him from accessing materials that he
believes he has a First Amendment right to view. To the extent the restrictions are
vague, he contends that they fail to give him adequate notice as to when he would
violate the condition.

      Ristine's argument that the pornography-related restrictions are overbroad is
without merit. In light of the significant evidence in the record that demonstrates
Ristine's obsession with or addiction to child pornography, we believe that the ban
on pornography is appropriately tailored to serve its dual purposes of promoting
Ristine's rehabilitation and protecting children from exploitation. Ristine's more
powerful argument is that the vagueness of "pornography" leaves him without notice
as to what film, prose, and art he may view without violating the challenged
condition.3 We have not addressed this issue before, and the circuit courts that have
considered similar conditions have divergent views. In striking down a condition
banning a defendant from possessing "all forms of pornography, including legal adult
pornography," the Third Circuit explained that "without a more definitive standard
to guide the probation officer's discretion, there is a real danger that the prohibition
on pornography may ultimately translate to a prohibition on whatever the officer

      2
       We note that Ristine does not argue that the restrictions concerning "erotica"
are overbroad or vague.
      3
        Compare Webster's Third New International Dictionary 1767 (1983) (defining
"pornography" as "a description of prostitutes or prostitution" or "a depiction (as in
writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior
designed to cause sexual excitement") with The American Heritage Dictionary 1410
(3d ed. 1992) (defining "pornography" as "[t]he presentation or production of . . .
[p]ictures, writing or other material that is sexually explicit and sometimes equates
sex with power and violence") and Cass R. Sunstein, Pornography and the First
Amendment, 1986 Duke L. J. 589, 592 (proposing definition of "pornography" that
includes sexual explicitness, depictions of women as enjoying or deserving physical
abuse, the purpose of arousal, and the effect of arousal).

                                          -4-
personally finds titillating." United States v. Loy, 237 F.3d 251, 261, 266 (3d Cir.
2001). On the other hand, the Fifth Circuit recently upheld a condition that
prohibited the defendants from possessing "sexually oriented or sexually stimulating
materials." United States v. Phipps, 319 F.3d 177, 192–93 (5th Cir. 2003). The Fifth
Circuit reasoned that "'sentencing courts must inevitably use categorical terms to
frame the contours of supervised release conditions'" because "'it would be impossible
to list' every instance of prohibited conduct." Id. at 193 (quoting United States v.
Paul, 274 F.3d 155, 166 (5th Cir. 2001), cert. denied, 535 U.S. 1002 (2002)).

       Were we reviewing this special condition for an abuse of discretion, we might
be forced to select the line of reasoning we find more compelling, but the standard
here is plain error. Even if we sided with the Third Circuit and concluded that the
special condition deviates from a legal rule, we cannot conclude that the District
Court committed an error that is clear under current law because, as Loy and Phipps
illustrate, the current law concerning this issue is unsettled. Because the imposition
of the condition was not plain error, we are bound to uphold it.

                                          B.

      Ristine next claims that two release conditions concerning photographic
equipment, computers, and Internet use are overbroad. Special Condition 3 states that
Ristine is "prohibited from owning or operating any photographic equipment
including, but not limited to, cameras, digital cameras, videotaping recorders,
camcorders, computers, scanners, and printers." Judgment Order at 4. Special
Condition 4 allows Ristine's probation officer to permit Ristine to possess a computer,
but Ristine must consent to periodic unannounced examinations and inspections of
his computer as well as to the installation of hardware or software that monitors his
computer use. Id. Even if Ristine is permitted to have a computer, he may not have
Internet service at his residence. Id.

                                         -5-
        We first consider the restrictions on Ristine's use of a computer and access to
the Internet. Ristine identifies courts that have rejected prohibitions on Internet use
as a release condition for persons convicted of child pornography offenses, see United
States v. Freeman, 316 F.3d 386, 392 (3d Cir. 2003); Sofsky, 287 U.S. at 126, but our
court is not among them. See United States v. Fields, 324 F.3d 1025 (8th Cir. 2003).
In Fields, the defendant was convicted of selling child pornography, and his release
conditions included nearly identical restrictions on using computers and accessing the
Internet as those imposed on Ristine. We acknowledged in Fields that some courts
have decided that Internet bans are overly restrictive release conditions, but we
concluded that the imposition of the restrictions on computers and on Internet use was
not an abuse of discretion and was "certainly" not plain error. Id. at 1027. We
reached our decision based largely on two considerations. First, there was evidence
that the defendant did more than merely possess child pornography; he sold
subscriptions to pornographic images. Second, the defendant was not completely
prohibited from using a computer; he could possess a computer with the permission
of the probation officer. Id.

       These two considerations are present in Ristine's case and operate with the
same force in our analysis. Like the defendant in Fields, Ristine more than merely
possessed images of child pornography—he exchanged the images with other Internet
users, and he attempted to arrange sexual relations with underage girls. In addition,
Ristine—like the Fields defendant—is not wholly barred from using a computer. The
primary difference between Fields and this case is that the defendant in Fields
established a website that provided paid subscribers with images of naked minors,
whereas Ristine exchanged pornographic images with other Internet users without
charging a fee. This distinction is of no consequence. Ristine's pornography
collection was available to other Internet users, just as were the images on the website
in Fields; we accordingly believe that the exploitation of young girls was of the same
degree in both cases.

                                          -6-
       We also conclude that the restrictions on Ristine's use of photographic
equipment, including cameras, do not deprive Ristine of a greater liberty interest than
is reasonably necessary. Although there is no evidence in the record that Ristine
photographed any minors, he possessed thousands of photos of underage women and
expressed interest in having sexual relations with underage women. It is therefore
reasonable to believe that Ristine likely would photograph underage women and
would exchange those photographs with other Internet users. In Fields, we upheld
an identical restriction on photographic equipment without reliance on any evidence
that the defendant in that case used such equipment. Id. Inasmuch as this case cannot
be distinguished from Fields in any meaningful way, we apply the Fields approach
and conclude that the District Court did not commit plain error in restricting Ristine
from owning photographic equipment.

                                          C.

       Finally, Ristine challenges a condition barring him "from places where minor
children under the age of 18 congregate, such as residences, parks, beaches, pools,
daycare centers, playgrounds, and schools without the prior written consent of the
probation officer." Judgment Order at 4. Ristine argues that the condition is vague
and could be read to ban him from all parks, beaches, and pools; if read in this
manner, the restriction would be overbroad. We reject Ristine's reading of this
condition for two reasons. First, the purpose of this release condition is to limit
Ristine's access to children. It is therefore sensible for the condition to restrict
Ristine's presence at places where children are actually present. Second, because
"residences" is in the same list of banned places as parks, beaches, and pools,
Ristine's proposed reading of the condition would result in his banishment from all
residences, including those of his friends, his family, and—taking this argument to
its end—his own residence. This is an absurd result and obviously is not the intent
of the District Court. Because we believe that the condition should be read to
prohibit Ristine's presence only at those residences, parks, etc., where children under

                                         -7-
the age of eighteen actually congregate, it is not overbroad, and its imposition is not
plain error. See Paul, 274 F.3d at 166–67 (concluding that condition requiring
defendant to avoid places, establishments, and areas frequented by minors was neither
vague nor overbroad).

                                         IV.

      For the reasons stated, we affirm the sentence imposed by the District Court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                         -8-


Filed 12/23/14 In re D.R. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

In re D.R. et al., Persons Coming Under the                          B255658
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. DK02137)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

DANIELLE H.,

         Defendant and Appellant.

         APPEAL from an order of the Superior Court of Los Angeles County. Julie Fox
Blackshaw, Judge. Affirmed.

         Christopher Blake, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

                                        _________________________
       Appellant Danielle H. (mother) appeals from the juvenile court’s jurisdictional
order pertaining to her two children, son D.R. (born in Dec. 2000) and daughter Dai. R.
(born in Feb. 2003) (the minors). Mother contends that her use of illegal drugs did not
place the minors at substantial risk of harm. We disagree and affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
Facts Leading to Detention
       The family came to the attention of the Los Angeles County Department of
Children and Family Services (Department) on July 3, 2013, when the Department
received a referral that mother was a “‘meth addict’” and was “high” two days earlier.
On July 5, 2013, mother tested positive for amphetamine, methamphetamine and
marijuana. At a team decision making meeting on July 12, 2013, mother stated that she
was willing to change her surroundings and stop partying, and that she had already
enrolled in a drug treatment program at the Lighthouse Drug Treatment Program
(Lighthouse). She was willing to start drug treatment and undergo random drug testing.
The Department recommended voluntary family maintenance (VFM) services.
       Mother failed to submit to random drug testing on September 11 and 18, 2013.
On September 20, 2013, mother told the social worker that she was no longer enrolled at
Lighthouse due to her noncompliance. Mother was referred to and enrolled in another
drug program.
       On October 15, 2013, the social worker interviewed mother and the minors at their
home. The minors denied seeing mother under the influence of drugs or alcohol, stated
they were comfortable in mother’s care, and did not express any issues or concerns.
       Mother admitted using marijuana, but denied using methamphetamine. She told
the social worker: “‘I’m hanging out with the same people I was before, when this case
opened. I had a couple of drinks. I think this man who I started partying with again, I
think he is putting something in my drinks. This is just crazy[,] I don’t use Meth. I do
smoke marijuana but never would I use Meth. I do smoke other people[’]s weed, maybe
that man is lacing my joint with something. Maybe he is lacing it with meth.”

                                             2
      On September 20, 2013, and October 15, 2013, mother tested positive for
amphetamine, methamphetamine and marijuana.
      The Department learned that mother has a criminal history, which includes a 2009
felony conviction for possession of a controlled substance. Mother was sentenced to 12
months of probation, and one of the conditions of her probation was “drug treatment
placement.”
      On October 28, 2013, the juvenile court granted the Department a warrant to
detain the minors, who were placed with their paternal grandmother.
The Petition
      On November 5, 2013, the Department filed a petition on behalf of the minors
under Welfare and Institutions Code, section 300, subdivision (b),1 alleging that mother
has a history of substance abuse and is a current user of amphetamine, methamphetamine
and marijuana, which renders her incapable of providing regular care for the minors, and
that her substance abuse endangers the minors’ physical health and safety and creates a
detrimental home environment, placing the minors at risk of physical harm.
Detention Hearing
      The juvenile court conducted the detention hearing on November 5, 2013. Mother
and the minors were present, as was the minors’ father, Byron R. (father). (Father is not
a party to this appeal.) The court ordered that the minors remain placed with the paternal
grandmother. It also ordered the Department to provide the parents with family
reunification services. Mother was ordered to participate in a drug treatment program
with random testing, and her visits with the minors were to be monitored.
Jurisdiction/Disposition Report
      In its December 12, 2013, jurisdiction/disposition report the Department reported
that it interviewed mother on December 3, 2013. Mother denied missing drug tests on
September 11 and 18, 2013; she stated that she went to test but was unable to use the
bathroom the first time and did not produce enough urine the second time. She had no

1
      All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                            3
explanation for her positive tests. She stated: “Anything I do I don’t do in front of my
kids. I party but I don’t put my kids in harm[’]s way. I don’t do drugs in my house or in
front of my kids. My kids have never seen me do drugs or be high. I don’t lay up with
men in my house. I don’t disrespect my kids like that. Monday through Friday I am a
mom. But on the weekends when my kids are with their dad or their grandmother, I
party. I don’t party at my house or around my kids.”
       Mother stated that she started smoking marijuana recreationally when she was 16
years old and uses it medically to treat back problems and carpal tunnel syndrome. She
possessed a medical marijuana card with an expiration date in February 2014. Mother
has never been formally employed; she has been styling hair since she was 12 years old
and earns money to supplement the public assistance she receives for the minors.
       The minors reported that they liked living with their grandmother. They appeared
to be developing age appropriately and had no noted mental or emotional problems.
Mother maintained consistent visitation and contact with the minors.
The Jurisdiction Hearing
       The juvenile court conducted the jurisdiction hearing on December 18, 2013. The
parties were represented by their counsel. Following oral argument, the court sustained
the section 300 petition as pled, ordered the minors to remain placed with the paternal
grandmother, and continued the matter for disposition.
Last Minute Information
       In a last minute information report filed on March 18, 2014, the Department
reported that it was unable to approve the paternal grandmother for placement due to her
lengthy criminal history, which includes felony convictions for burglary, robbery, battery,
possession of a controlled substance, violation of parole and dissuading a witness with
threats of force. Father had moved into the grandmother’s house to keep the minors from
being displaced from their home and school, and mother was in agreement with the living
arrangement. Mother reported that she had reenrolled at Lighthouse, but the phone
numbers she provided for the Lighthouse were not working, and mother had failed to

                                            4
provide proof of enrollment. Mother acknowledged that she was not drug testing for the
Department, which could not confirm her claim that she was testing at Lighthouse.
Disposition Hearing
       The juvenile court conducted the disposition hearing on March 18, 2014. Mother,
father and the minors were present. Minors’ counsel agreed with the Department that
returning the minors to mother would be detrimental to them. The court ordered the
minors to be placed with father; that family maintenance services be provided to father
and enhancement services be provided to mother; that mother participate in a drug and
alcohol program, a parenting class and individual counseling; and that mother be
accorded unmonitored visits after five clean and consecutive drug tests.
                                        DISCUSSION
I. Section 300
       The juvenile court assumed jurisdiction of the minors under section 300,
subdivision (b). A child comes within the jurisdiction of the juvenile court under section
300, subdivision (b), if the child “has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness, as a result of the failure or inability of his or
her parent or guardian to adequately supervise or protect the child, . . . or by the inability
of the parent or guardian to provide regular care for the child due to the parent’s or
guardian’s mental illness, developmental disability, or substance abuse.”
       In enacting section 300, the Legislature intended to protect children who are
currently being abused or neglected “and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of that harm.” (§ 300.2.) The
Legislature acknowledged that the “provision of a home environment free from the
negative effects of substance abuse is a necessary condition for the safety, protection and
physical and emotional well-being of the child.” (§ 300.2.)
       We review a juvenile court’s jurisdictional findings for substantial evidence. (In
re Mariah T. (2008) 159 Cal.App.4th 428, 438.)

                                                5
II. Substantial Evidence Supports the Jurisdictional Finding
       Mother describes herself as a “recreational” drug user. She argues that while she
used illegal drugs, including methamphetamine and marijuana, there is no evidence that
she abused such drugs and placed the minors at substantial risk of physical harm. We
disagree.
       Substantial evidence supports the jurisdictional finding that mother abused illegal
drugs. In 2009, mother had a felony conviction for possession of a controlled substance
and was ordered into a drug treatment placement as a condition of her probation. Yet,
four years later, mother was still using amphetamine, methamphetamine and marijuana,
despite being aware of the serious criminal consequences.
       Mother also continued to use drugs after the Department offered her VFM
services. The juvenile court noted that during the VFM period, mother had “gone in and
out of sobriety” and continued “to fail in her program,” which it found constituted one of
the definitions of addiction.
       Mother also denied taking methamphetamine, including on one of the days that
she tested positive for methamphetamine (Oct. 15, 2013). She told the social worker that
she did not know how she ingested methamphetamine and claimed that someone must
have slipped it in her drinks or marijuana joints. As the juvenile court aptly noted, “[i]f
she doesn’t even know where she gets the meth, and she has the meth in her system, that
doesn’t make me feel that this is just recreational.”
       Mother also told the social worker that she did not party or use drugs during the
week when the minors were in her care and custody. But at least two of mother’s
positive drug tests occurred during the week (Fri., Sept. 20, 2013, & Tue., Oct. 15, 2013),
and mother failed to test on September 11 and 18, 2013 (both Weds.). The juvenile court
properly found “a risk here for somebody who uses drugs that can’t explain when they
ingested the drugs, how they ingested the drugs, and lies about it to the social worker,
does ingest during the week. As a result of the tests, the court does see that this poses a
risk to the children.”

                                              6
       Mother nevertheless argues that her drug use did not place the minors at
substantial risk of physical harm. But as the Department notes: “Although it is true that
mother appeared to have met the children’s needs, the juvenile court was rightfully
concerned that mother’s inability to remember or articulate how the methamphetamine
got into her system, combined with the fact that she tested positive on weekdays when
she reported the children were in her care, established that her use was risky and put her
children at substantial risk of harm.” As our Supreme Court recently stated: “[S]ection
300 does not require that a child actually be abused or neglected before the juvenile court
can assume jurisdiction. The subdivisions at issue here require only a ‘substantial risk’
that the child will be abused or neglected. . . . ‘The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps necessary to protect
the child.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.)
       We are satisfied that substantial evidence supports the juvenile court’s
jurisdictional finding that mother’s substance abuse places the minors at substantial risk
of physical harm.
                                      DISPOSITION
       The jurisdictional order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                           __________________________, J.
                                                 ASHMANN-GERST

We concur:

_____________________________, P. J.
           BOREN

____________________________, J.
           CHAVEZ

                                               7


90 Ga. App. 251 (1954)
82 S.E.2d 706
ATLANTIC COAST LINE R. CO.
v.
PARKER.
35153.
Court of Appeals of Georgia.
Decided June 2, 1954.
*253 Matthews & Hendrix, R. A. Moore, B. G. Oberry, for plaintiff in error.
Ewing & Farrar, contra.
*254 FELTON, C. J.
1. The court did not err in overruling the general demurrer. While there is no statute requiring an engineer to slow down his train and to have it under control at public crossings, a jury may determine that under the circumstances in a particular case ordinary care would require such action; and in the instant case it would be a question for a jury whether the defendant was negligent in operating its train at 50 miles per hour upon approaching a much-traveled public crossing where a curve prevented observation of the crossing by the train's crew until the train was within approximately 500 feet thereof. Atlantic Coast Line R. Co. v. Bradshaw, 34 Ga. App. 360 (1) (129 S. E. 304); Georgia Northern Ry. Co. v. Rollins, 62 Ga. App. 138 (1) (8 S. E. 2d 114); Central of Georgia Ry. Co. v. Sharpe, 83 Ga. App. 12, 21 (62 S. E. 2d 427). The contention that the plaintiff is barred by his own negligence in driving a defective automobile which stalled on the tracks is without merit. There is nothing in the petition to show that the automobile was defective, or if defective that the plaintiff knew or should have known of the defect.
2. The court erred in charging in effect Code § 94-1108, which provides: "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury." The defendant introduced evidence sufficient to authorize a finding of its exercise of ordinary care under the circumstances and introduced material facts connected with the collision; therefore the principle set out in Code § 94-1108 had no place in the case, and the court erred in charging thereon. Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593 (160 S. E. 789); Atlantic Coast Line R. Co. v. Rowe, 83 Ga. App. 540 (64 S. E. 2d 216); Central of Ga. Ry. Co. v. Cooper, 45 Ga. App. 806, 807 (4) (165 S. E. 858).
3. It is contended that the court erred in overruling a special demurrer to the following allegation: "The operation of said locomotive at such a speed was hazardous to persons and property using said highway at said location, and was in total disregard for the safety of persons and property on said highway *255 at said crossing and amounts to negligence per se." The acts alleged did not amount to negligence per se, and the court erred in overruling the special demurrer as to that portion of the allegation designating the acts or omissions as being negligence per se. Montgomery v. Southern Ry. Co., 78 Ga. App. 370, 374 (51 S. E. 2d 66).
The court did not err in overruling the general demurrer to the petition.
The court erred in overruling the special demurrer treated in the opinion and in denying the amended motion for new trial.
Judgments affirmed in part and reversed in part. Quillian and Nicholas, JJ., concur.


                                                                                ACCEPTED
                                                                                04-14-00829-CV
                                                                             FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                4/7/2015 12:22:28 PM
                                                                                KEITH HOTTLE
                                                                                CLERK

                             No. 04-14-00829-CV

                                                                      FILED IN
                     IN THE COURT OF APPEALS     4th COURT OF APPEALS
                                                  SAN ANTONIO, TEXAS
            FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS
                                                 4/7/2015 12:22:28 PM
                          AT SAN ANTONIO
                                                                KEITH E. HOTTLE
                                                                     Clerk

                      Western Rim Property Services, Inc.,
                                                         Appellant,

                                       v.

                              Paula Bazan-Garcia,
                                                         Appellee.

    ON APPEAL FROM THE COUNTY COURT AT LAW NO. CC# 03 OF
         BEXAR COUNTY, TEXAS, CAUSE NO. 2014CV01064

                 AGREED MOTION TO DISMISS APPEAL

BAKER BOTTS L.L.P.                          ESPINOZA LAW FIRM, PLLC
Jennifer M. Trulock                         Javier Espinoza
State Bar No. 90001515                      State Bar No. 24036534
Stephanie F. Cagniart                       Josue Garza
State Bar No. 24079786                      State Bar No. 24072737
2001 Ross Avenue, Suite 600                 503 E. Ramsey, Suite 103
Dallas, Texas 75201-2980                    San Antonio, Texas 78216
(214) 953-6500                              (210) 229-1300
(214) 953-6503 (Facsimile)                  (210) 229-1302 (Facsimile)
jennifer.trulock@bakerbotts.com             josue@espinozafirm.com

ATTORNEYS FOR APPELLANT                     ATTORNEYS FOR APPELLEE
WESTERN RIM PROPERTY SVCS, INC.             PAULA BAZAN-GARCIA

                                       1
      Pursuant to Texas Rules of Appellate Procedure 42.1(a)(2)(A) and 43.2(f),

Defendant-Appellant Western Rim Property Services, Inc. (“WRPS”) and

Plaintiff-Appellee Paula Bazan-Garcia (“Bazan-Garcia”) file this Agreed Motion

requesting that the Court dismiss the pending appeal without prejudice because the

parties have agreed to proceed in arbitration.

                                 BACKGROUND
       Bazan-Garcia filed a Petition against WRPS in Bexar County Court of Law

on July 1, 2014. CR 9. In response, WRPS moved to compel arbitration of Bazan-

Garcia’s claims, pursuant to two arbitration agreements between the parties. CR

16. The trial court denied WRPS’s motion on November 10, 2014. CR 144.

      WRPS timely filed this accelerated interlocutory appeal on November 24,

2014. CR 156–57. The parties completed briefing for the appeal on February 9,

2015. On March 17, 2015, the Clerk issued notice that the cause was set for formal

submission on the briefs before this Court on April 7, 2015.

                                     MOTION
      Parties may voluntarily dismiss an appeal. Tex. R. App. P. 42.1. “In

accordance with an agreement signed by the parties or their attorneys and filed

with the clerk, the court may render judgment effectuating the parties’ agreement.”

Tex. R. App. P. 42.1(a)(2)(1). The court of appeals’ authority includes the power

to dismiss an interlocutory appeal without prejudice. See, e.g., Franco v. Sanchez,

                                          2
Case No. 04-15-00053-CV, 2015 WL 1244868, at *1 (Tex. App.—San Antonio

Mar. 18, 2015, no. pet. h.) (citing Tex. R. App. P. 42.1(a), 43.2(f)).

      In this appeal, WRPS asked the Court to reverse the trial court’s order

denying WRPS’s motion to compel arbitration, and to direct the trial court to

compel arbitration of all of Bazan-Garcia’s claims in accordance with the parties’

arbitration agreements. The parties have now resolved that dispute by agreement.

On April 6 and 7, 2015, the parties executed an Agreement to Proceed in

Arbitration (the “Agreement”), in which Bazan-Garcia agreed to abate the case

currently pending before the trial court and to pursue all of her claims against

WRPS in arbitration, including any challenges to the validity and enforceability of

the parties’ arbitration agreements. A copy of this Agreement is attached to as

Appendix 1.

      In accordance with their Agreement to Proceed in Arbitration, the parties

request that this Court dismiss this appeal without prejudice because the parties’

Agreement resolves the disputes raised in this interlocutory appeal.

                              PRAYER FOR RELIEF
      For the foregoing reasons, the parties respectfully request that the Court

dismiss this appeal without prejudice, with each party to bear its respective costs

and attorneys’ fees.

                                           3
Agreed to and submitted this 7th day of April, 2015.

BAKER BOTTS L.L.P.                          ESPINOZA LAW FIRM, PLLC

By: /s/ Jennifer M. Trulock                 By: /s/ Josue Garza
   Jennifer M. Trulock                         Javier Espinoza
   State Bar No. 90001515                      State Bar No. 24036534
   2001 Ross Avenue, Suite 600                 Josue Garza
   Dallas, Texas 75201                         State Bar No. 24072737
   (214) 953-6500                              503 E. Ramsey, Suite 103
   (214) 953-6503 (Facsimile)                  San Antonio, Texas 78216
   jennifer.trulock@bakerbotts.com             (210) 229-1300
                                               (210) 229-1302 (Facsimile)
   Stephanie F. Cagniart                       josue@espinozafirm.com
   State Bar No. 24079786
   98 San Jacinto Blvd, Ste 1500               ATTORNEYS FOR APPELLEE
   Austin, Texas 78701                         PAULA BAZAN-GARCIA
   (512) 322-2500
   (512) 322-2501 (Facsimile)
   stephanie.cagniart@bakerbotts.com

  ATTORNEYS FOR APPELLANT
  WESTERN RIM PROPERTY SVCS, INC.

                                        4
                       CERTIFICATE OF SERVICE
            I hereby certify that on April 7, 2015, a copy of the foregoing was
served by the Court’s CM/ECF electronic service and by electronic mail on the
following parties:

            Javier Espinoza
            Josue F. Garza
            The Espinoza Law Firm, PLLC
            503 E. Ramsey, Ste. 103
            San Antonio, Texas 78216
            210-229-1302 (Facsimile)
            josue@espinozafirm.com

                                    /s/ Stephanie F. Cagniart
                                    Stephanie F. Cagniart

                                      5
APPENDIX 1
                                                        To: • 12106913684      Fax:   ~1 210SQ1~51l4       Page 3   orr.No . 2381 10 ::i~P . 2/4
From: The   'A pI, 6. 201 ")c:;: 1·.38PM02

                                             AGREEMENT TO PROCEED IN ARBITRATION
                                      This Agreeme.11t to Proceed in Arbitration ("Agreement") is made by and
                    between Pa.uln Bazan-Garcia. ("Bazan-Garci~'') and Western Rim Property Servioes ("WRPS'')
                  . (colleoti.vely, ~'the Partiesn), on the following terms;

                                                                    :@Cll'AJ;S
                                WHEREAS, Bazan-Garcia· wishes to pt.usue certain claims that she as.serted
                   against WRPS in the Origi11a1 :Petition and Fi1-s1 Amended '.Petjtion filed in .8taan-Garcia v.
                   WBst~rn Rim Property Services• .lnc., Case No. 2014CV01064, County Court at Law #03, Bexa:t
                   County, 'Texas (the "Case"); and
                                  WHEREAS, WRPS contends that BB.Zilll-Garcia1s claims are 'subject to
                  arbitration, and has filed an appeal to enforce the patties• arbitration agreements ~n Westem Rim
                  Property Services, lna. v. Bazan.-Garciaj Case No. 04-14-00829-CV, Fourth Court of Appeals
                  District (the ''Appeal'~). which is curr~ntly set for furmal submission on the briefs befol'e the .
                  Court of Appeals on April 7, 2015; and .

                                  WHEREAS, the Parties> l'eoogni.zing the expense1 inconvenience and ti.mo
                   consumption in.volvod for the Parties and the Court of Appeals in resolving fue Appeal, have
                   agreed that the Appeal should be dismissed, that the Case should be abated~ and that Bazan~
                   Garcia mLiSt prn;sue her claims against WR.PS In arbitration.

                                NOW. niEREFORE. fo:r and in consideration of the promises, covenants and
                  undertakings set forth herein, Bazan~Garcia and WR.PS agree as follows:

                                     1.      \VRPS covenants find agrees that within. tWo (2) busine.!ls- days of the
                   Effective Date of this Agreement, W.RPS will. file· an Agreed Motion on behalf of the PaJ:ties in
                  'the Coui-t of Appeals. The Agreed Motion will request that the Co»rt of Appeals dismiss the
                   Appeal without prejuclice., with each party t.o ~ear its respective cos~ and attorneys' fees. The
                   Parties e~pressly agree that the County Court•s Order has no ptecedential effect io. th:is or any
                   other di.spute between tb.e Parties. By agreeing to di&rriiss the Appeal, WRPS does not conoede
                   that the Colll.'lty Court's Order :-vas ern:rect, lllld maintah1s that the P.t!l.rlie.s' arbitrE\.tion agreements
                   are valid and enfurce1:1.blo between, tbe Parties> &nd Bazan-Garcfo maintains her position that the
                   arbit:mtion agreeme.at is unconscionable and does not waive her right assert this argument to an
                  arbitrator.                                                                          ·
                             .    2.      Bazan-Garcta ~oveoants and agrees that within seven (7) days after t11e
                  date on which the Court of Appeals issues an Order dismissing the Appeal, Baza:o.·GaI'eia w111
                  file a motion to abate the Case in state court, pending resolution of the arbitration.
                                  3.       Baza.i.).-Gat·cia covenants and agrees to pursue any cla\ms against WR.PS in ·
                  arbitration, pursuant to tbe arbitration agreements referenced in .WRPS's Opening Brief in. the.
                  Appe!il as App. 3 (Arbitration Agreement) and App. 13 (Employee Handbook), and in
                  acoordance Vtith the Employment Atbitratlon Rules of the American Arbitration Association
                  (('AAA'"), E!Vailable to the pubBc through AAA's website. Bazan-Garcia covenants and agrees to

                  'Page'1 of3
                   Agreeanept ti) Proceeg in Arbftratigp.
                                   Io: +1210!iS13b84       F&Y: + 1 2 10591~5(14

file hei: dein.@d for arbitration within sixty (60) days after the date on which the CoW1ty Co"Urt
abates the Case. Tbe Parties agree Bazsu~Garo'ia has the right to challenge the enforceability of
those agteeme11ts in arbitration.

                4.      The Effective Date of the Agreement is the date by which the Agreement
hns been, sigtted by both. Parties or their authorized represe11tatives.
                                                       '                                .
                5.      nus Agreement shall inure to the benefit of and           be binding upon the
Parties> .their a.g~ts an.d representatives. the h~rs,        successors and assigns of the respective
parties.

AGREED to by:
                                                                                I
                                                                                .I
                                                                                . I:
Panla B.azan~Garcla:

Page2 of3
Ai!:eement t:o.J,!roceed in Arbitratio~
Wes tern Rim Property Services:

By:

Its:
        cM
        ~e k
             of/;fa //JU£,    {I' , LL-(,   ~ ~f~
Date:     <f/z /r£=

Page 3 of3
Agreement to Proceed in Arbitration


                                ___________

                                No. 95-3865
                                ___________

United States of America,           *
                                    *
           Appellee,                *
                                    *
      v.                            *
                                    *
Certificate of Deposit,             * Appeal from the United States
No. 8101730026, First National      * District Court for the
Bank of Omaha,                      * District of Nebraska.
                                    *
           Defendant,               *         [PUBLISHED]
                                    *
Shari Thompson,                     *
                                    *
           Appellant.               *
                               ___________

                   Submitted:   May 21, 1996

                       Filed:   May 28, 1996
                                ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.

     Following the arrest of Billy Thompson in April 1990 for possession
with intent to distribute cocaine, the government seized a bank certificate
of deposit (CD) valued at $7,000 and filed a forfeiture complaint against
the property.    Shari Thompson, Billy's wife, answered the forfeiture
complaint and asserted a claim to the CD.      When partial summary judgment
was granted in favor of the bank in September 1991, the district court's
docket sheet entry erroneously reflected the case as terminated.   After no
activity for four years, the docketing mistake was detected in September
1995 -- the record does not tell us how -- and the case reopened,
presumably at the government's behest.   The district court ordered
the case set for trial a few weeks later, and when Thompson did not appear,
denied her motion for a continuance and entered a default judgment against
her.   Thompson appeals.   We reverse.

         The government's delay of more than four years evidences a lack of
reasonable diligence in prosecuting its forfeiture action.        The government
does not explain why it took four years to discover the district court's
docketing error.    The procedural prejudice to Thompson is apparent from the
circumstances    surrounding   the   hasty   reopening   and   entry   of   default
judgment.     Moreover, the government has alleged that the CD was redeemed
in March 1995.    That event either made the CD forfeiture proceeding moot,
or created a need for much more complex litigation before the government
could recover the money previously represented by the CD.               Since the
government originally seized the CD, it is to blame for any mishandling,
so it is appropriate to treat the CD's redemption as mooting the forfeiture
proceeding.    For all these reasons, we conclude that dismissal because of
the government's failure to prosecute is the proper course of action.          See
Garland v. Peebles, 1 F.3d 683, 686 (8th Cir. 1993).            See also Link v.
Wabash   R.R. Co., 370 U.S. 626, 630-31 (1962) (courts have inherent
authority to dismiss sua sponte for failure to prosecute).

       Accordingly, the judgment of the district court is reversed and the
case is remanded with instructions to dismiss the government's forfeiture
complaint for failure to prosecute.

       A true copy.

              Attest:

                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                       -2-


                                                                                Opinions of the United
2005 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

3-30-2005

Collins v. Phila Housing Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2344

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Collins v. Phila Housing Auth" (2005). 2005 Decisions. Paper 1410.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1410

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    No. 04-2344

                               TERESA COLLINS,

                                                           Appellant

                                         v.

         THE PHILADELPHIA HOUSING AUTHORITY; CARL GREEN;
           MICHAEL LEITHEAD; LINDA STALEY; JAMES JONES,
           INDIVIDUALLY AND AS CORPORATE OFFICIALS FOR
               THE PHILADELPHIA HOUSING AUTHORITY

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 03-02500)
                    District Judge: Honorable John P. Fullam

                    Submitted under Third Circuit LAR 34.1(a)
                                 March 7, 2005

    BEFORE: SCIRICA, Chief Judge, ROTH and GREENBERG, Circuit Judges

                             (Filed: March 30, 2005)

                            OPINION OF THE COURT

GREENBERG, Circuit Judge.

     This matter comes on before this court on appeal from an order entered May 4,
2004, granting summary judgment to the defendant Philadelphia Housing Authority and

certain of its officers in this action in which plaintiff-appellant, Teresa Collins, the former

director of the Authority’s Head Start Program, sought relief under federal and

Pennsylvania law on the theory that the defendants retaliated against her by terminating

her employment because she registered her opposition to and protested defendants’

misuse of public funds and illegal activities. The district court in a memorandum opinion

dated April 26, 2004, granted defendants summary judgment because it determined that

even though Collins had complained about defendants’ activities to the Authority’s Office

of the Inspector General, the persons who made the decision to terminate her had been

unaware of her complaints before they made the termination decision.

       The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343 and 1367, and

we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on this appeal,

see Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995), and thus may affirm

only if the pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits, if any, show that there is no genuine issue as to any material fact and

defendants are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). After

our review of this matter, we are in full accord with the district court as the evidence

cannot support a conclusion that the defendants’ denial that they lacked knowledge of

Collins’ complaint before her termination is not true. Thus, this case must fail on the

causation issue.

                                              2
The order of May 4, 2004, will be affirmed.

                                    3


345 F.Supp. 11 (1972)
Maryhelen DALY, Personal Representative of the Estate of Harry J. Daly, a/k/a Harry John Daly, Deceased,
v.
John I. BRIGHT, Jr., et al.
Civ. A. No. 71-1412.
United States District Court, E. D. Pennsylvania.
June 30, 1972.
*12 Henry B. Fitzpatrick, Jr., Philadelphia, Pa., for plaintiff.
Edward W. Madeira, Jr., Philadelphia, Pa., for Fidelity Bank.
John G. Harkins, Jr., Philadelphia, Pa., for R. Anderson Pew.

OPINION AND ORDER
DITTER, District Judge.
This case involves the claims of a junior creditor to subrogation rights against a senior creditor's surety. It comes before the court on a motion to dismiss on the grounds that no cause of action has been stated for which relief can be granted.
Plaintiff's decedent, Harry J. Daly, was the owner of the controlling interest in a company which operated two Maryland radio stations. In 1967 Daly entered into an agreement to sell his interest to Towson Radio, Inc., a corporation being formed by the defendants, Bright, Eisenhart, Hamilton, and Paisley. The price was $360,000  $160,000 in cash and $200,000 in the form of a note.
To obtain the capital required for their purchase, Bright, Eisenhart, Hamilton, and Paisley, arranged for a loan of $350,000 to Towson from the defendant, Fidelity Bank. This obligation was to be secured by the stock of Towson and the pledge of marketable securities worth $100,000. Moreover, repayment was guaranteed by these four defendants and further protected by the subordination of the $200,000 note which Towson gave to Daly. The marketable securities were furnished by the defendant, Pew, in return for an option to purchase Towson stock. Towson's agreement with Pew, which was also signed by Fidelity, provided that if the stock was required to repay the bank, Pew would be subrogated to the bank's rights against Bright, Eisenhart, Hamilton, and Paisley. The sale was finally completed in June, 1968, Daly accepting the note which was subordinated to the loan agreement between Towson and Fidelity. On March 9, 1969, Fidelity made a new loan of $100,000 to Towson. This loan is not senior to the Daly note. Towson defaulted and in October, 1969, Fidelity demanded payment in full and so notified the guarantors and Pew.
Eventually, Towson was sold for $825,000 with Fidelity acting as agent. After various adjustments not in issue, the sale proceeds only cover 66.02% of Towson's outstanding debts. At the time, Towson obligations to Fidelity, including interest, totalled $495,640.98. Of this amount, $380,809.03 was due on the first note and the remainder *13 $114,831.95 was due on the second note. Towson owed Daly[1] $214,666.65 including interest. However, a proportionate reduction caused by insufficient proceeds resulted in the following amounts being available for payment:

  For Daly                     $141,679.98
  For Fidelity Bank
       First Note ($350,000.)   251,410.12
       Second Note ($100,000.)   75,812.05

Relying on the subordination of Daly's note to its first note, Fidelity claimed $108,852.73 from Daly and proposed to pay this amount to itself.
Meanwhile, Pew had been released by the bank and his stock returned. As previously observed, Pew was a surety for the bank to the extent of $100,000. He had agreed that the securities he pledged could be liquidated to pay Towson's debt to Fidelity. If the bank had found it necessary to collect all or part of its debt from Pew's stocks, he would have been subrogated to the bank's rights to obtain payment and could enforce those rights under common suretyship principles. For example, Pew could proceed against Bright, Eisenhart, Hamilton, and Paisley on their personal guarantees to the bank, or on the basis of their contract with him.
Daly resists Fidelity's proposed distribution and has brought suit against Bright, Eisenhart, Hamilton, Paisley, Pew, and Fidelity for various forms of relief. So far as Pew and Fidelity are concerned, Daly's principal assertion is that he and Pew were both sureties for the payment of Towson's note to Fidelity: Pew by reason of the stock-pledge and Daly by reason of the subordination of his note. Since the bank released Pew, Daly contends that it has forfeited its superior position so far as he is concerned because his ability to proceed against Pew, his co-surety for contribution has been impaired. Daly also contends that the defendants conspired to sell Towson for less than it was worth, released Pew's stock, and wish to rely on the subordination of Daly's note to save the bank harmless. Pew and Fidelity now move to dismiss Daly's complaint alleging that he has not stated a claim on which relief can be afforded.
Daly's entire case is built upon the assertion that as a subordinated creditor he had the same rights which a surety would enjoy. Of course, Daly was not a surety in the usual sense and therefore his relationship with the bank does not have all the legal incidents of suretyship. Daly had only agreed to defer his payment from Towson until after the bank had been repaid its loan. If the bank had tried to hold him as a surety and collect from his general assets, it would be unable to do so. However, what Fidelity is trying to do is to collect the money Towson owes it from the money Towson owes Daly. Daly asserts he should therefore be treated as a surety and should have been afforded a surety's right of subrogation against the actual surety, Pew.
Daly's argument is based upon two law review articles[2] which point out that when a series of liquidating payments are made by a debtor, the subordinated creditor receives nothing until the senior creditor is paid in full. So far as any payment made thereafter, the articles suggest that the subordinated creditor should be subrogated to the rights of the senior creditor to receive payments from the debtor. Seizing upon this use of the word, "subrogated," Daly argues that subrogation is an incident of suretyship and that if he has one incident of suretyship, he should have them all. Among the rights of a surety would be the right to be released from his agreement by the release of a co-surety's pledge. This is the relief which Daly says should be afforded him *14 in view of the bank's release of Pew's stock.
Unfortunately, Daly's authorities do not go that far. The articles only say that if a subordinated creditor wants additional rights, he should be sure to contract for them. It follows that if he does not do so, he cannot have even the benefits which the articles discuss. The authors do not say that a subordinated creditor is entitled to the same protection as a surety. Fidelity made one bargain with Pew and another with Daly. Both were designed to protect the bank and thereby induce it to make the loan to Towson. Although Pew and Daly shared a common goal, they approached it from different directions, taking different risks. The legal results are also different.
Fidelity's status is unaffected by its release of Pew because this release did not injure Daly. Had Pew's agreement been enforced against him and his stock liquidated to pay Towson's debt, Pew would have been subrogated to all of the rights which had been Fidelity's. Among these rights would be the right to a priority of payment so far as Daly was concerned. Thus Daly would be in exactly the same position as the one in which he finds himself  i. e., being deprived of payment from Towson in an amount sufficient to insure full payment of the loan which Towson obtained from the bank on the first note. What Daly is really saying is that he should be released from his bargain because as things turned out, Pew made a better one. He cites no legal authority to buttress this contention nor can I.
Although the point was not pressed at oral argument, Daly also alleges that he was the victim of a conspiracy between the bank and Pew. However, unless a plaintiff is harmed by a civil conspiracy, there can be no recovery. The gravaman of the action is the damage and not the agreement: United States ex rel. Marcus v. Hess, 41 F. Supp. 197, 215 (W.D.Pa.1941), rev'd 127 F.2d 233 (3rd Cir. 1942), rev'd 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), rehearing denied, 318 U.S. 799, 63 S.Ct. 756, 87 L.Ed. 1163 (1943). As I have pointed out, Daly suffered no harm from the bank's agreement to return Pew's stock. Even though the defendants may have acted in secret, it does not make actionable that which otherwise would not be: United Aircraft Corporation v. Boreen, 413 F.2d 694, 700 (3rd Cir. 1969); Edwards v. James Stewart & Co., 82 U.S.App.D.C. 123, 160 F.2d 935, 936 (1947).
Another assertion which Daly made but did not brief or argue was that his note was to be subordinated to only a part of the principal of Fidelity's first loan and none of the interest. However, the plain reading of the note to him shows this contention lacks merit.
Daly has failed to state a cause of action against either Pew or Fidelity and therefore their motions to dismiss must be granted.
NOTES
[1]  Daly died on August 20, 1970, and plaintiff is his executrix. For convenience, however, I shall refer to his estate as "Daly."
[2]  Calligar, Subordination Agreements, 70 Yale L.J. 376, 400. Everett, Subordinated Debt  Nature, Objectives and Enforcement, 44 Boston University L.Rev. 487, 529-530.


485 So.2d 1142 (1986)
Ray Carlyn HOLMAN and Ann Jacqueline Holman
v.
JOE STEELE REALTY, INC., et al.
84-1217.
Supreme Court of Alabama.
February 28, 1986.
Gary F. Burns and Thomas E. Davis, of Burns, Shumaker & Davis, Gadsden, for appellants.
James C. Inzer, Jr., of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment pursuant to Rule 54(b), Ala.R.Civ.P., in a fraud action in favor of appellees-defendants, Joe Steele Realty of Gadsden, Inc. (hereinafter Steele Realty); David Clokey; and James and Carolyn Minton.[1]
The Mintons entered into a listing agreement to sell their residence with Betty Batson, *1143 a real estate agent employed by Steele Realty. The defendant, David Clokey, is a licensed real estate broker and president of Steele Realty. On June 20, 1983, the plaintiffs-appellants, Ray and Jacqueline Holman, contacted Clokey and were shown the Mintons' home.
Clokey informed the Holmans that the Mintons were behind in their mortgage payments and were eager to sell their residence. After negotiations with Clokey, the Holmans agreed to purchase the Mintons' residence for $44,900.00.
A contract of sale was executed by the Holmans and the Mintons on June 21, 1983. The contract stated that the Holmans agreed to pay $7,000.00 as a down payment, assume an outstanding mortgage of approximately $18,500.00, and pay the balance of the purchase price upon the sale of the house in which they were living. Additionally, stipulation eight of the sales contract provided "possession to be given purchaser 30 days after closing." No date for closing was stipulated in the contract.
The $7,000.00 down payment was paid by the Holmans and was deposited into Steele Realty's escrow account. It was designated in the sales contract as earnest money, subject to forfeiture in the event the Holmans failed to perform the sales contract. After execution of the contract of sale, Clokey withdrew approximately $563.00 from the escrow account to pay three past due mortgage payments on the Minton residence. The Mintons executed a promissory note in favor of the Holmans for the amount of the mortgage payments.
In addition to paying the past due mortgage payments on the Minton residence, the Holmans made the monthly mortgage payment on the Minton residence from July 1983 until October 1984. Item 10 of the contract of sale provided: "purchaser to make monthly payments on house as of July 1983."
At about the same time the contract of sale of the Minton residence was negotiated, Clokey contracted with the Holmans to sell their residence. Clokey attempted to sell the Holmans' home, without success, until October 1984.
The Holmans alleged that they asked Clokey in March 1984 to put them into possession of the Mintons' residence. Clokey refused the Holmans' request and testified in deposition that he told the Holmans that they could be put into possession of the Minton residence following the closing of the sale, which would occur when the Holmans paid the balance of the purchase price. In October 1984, the Holmans rescinded the listing agreement with Clokey, removed their residence from the market, and requested that Clokey return the remainder of the $7,000.00 down payment held in escrow under the sales contract. Clokey refused to return the down payment.
The Holmans filed suit in the circuit court, alleging fraud and conversion in the sale of the Minton residence. The Holmans averred that prior to the execution of the contract for sale on June 21, 1983, Clokey, as the agent of the Mintons, represented to the Holmans that they would be placed in possession of the Mintons' residence within 30 days from the execution of the contract of sale. Thereafter, plaintiffs amended their complaint to allege that Clokey represented that they would be put in possession of the Minton residence "by August 1, 1983."
In their answers, the defendants denied the existence of an agency relationship between Clokey and the Mintons and also denied that the Mintons were to surrender possession of the residence prior to the closing of the contract of sale. The Mintons counterclaimed against the Holmans, demanding specific performance of the sales contract, or, in the alternative, damages for breach of contract.
Each defendant filed a motion for summary judgment, which was granted by the trial court. The Holmans appealed.
The issue on appeal is whether the trial court erred by granting summary judgment for defendants on plaintiff's fraud claim. We conclude that the trial court did not err and affirm its judgment.
*1144 Summary judgment is appropriate when there is an absence of a genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. White v. Law, 454 So.2d 515 (Ala.1984).
Reliance is an essential element to be proved in an action for fraud. Code 1975, § 6-5-101; Desroches v. Complete Auto Transit, Inc., 409 So.2d 417 (Ala. 1982). In Ex parte Leo, 480 So.2d 572 (Ala.1985), another real estate fraud case, we observed:
Speaking to the element of reliance, this Court, in Marshall v. Crocker, 387 So.2d 176, 178 (Ala.1980), quoting Jordan & Sons v. Pickett, 78 Ala. 331 (1884), opined:
The fraud, which entitles a purchaser of property to a right of action for deceit, ordinarily consists in the misrepresentation... of a material fact, on which he has a right to rely, and does rely, operating an inducement to the contract, and whereby he is deceived and injured. [Emphasis added.]
Also in Ex parte Leo, this Court relied upon the following language from Cook v. Brown, 393 So.2d 1016, 1019 (Ala.Civ.App. 1981), which is equally germane to the instant case:
Although a plaintiff alleged to have been injured by a defendant's misrepresentation must have in fact acted upon it to his injury believing it to be true to maintain his action for fraud against the defendant, if he had prior knowledge of its falsity or if the circumstances surrounding the pronouncement of same would have aroused suspicion as to its validity in the mind of a reasonable person, he cannot be said to have reasonably relied upon the misrepresentation and, therefore, cannot obtain damages or other relief from defendant.
480 So.2d at 574.
Applying these principles of law to the case at hand, we conclude that the Holmans have failed to provide a scintilla of evidence to support the reliance element essential to their fraud claim, and, therefore, that defendants are entitled to judgment as a matter of law.
There is no showing in the record of the plaintiff's justifiable reliance upon the alleged fraudulent representations of Clokey. The record does reflect that after the alleged representation of Clokey was made, the Holmans executed a contract for sale that clearly reads "possession to be given purchaser 30 days after closing." In Broadway v. Household Finance Corp. of Huntsville, 351 So.2d 1373 (Ala.Civ.App. 1977), at 1376, it was said that "[i]n civil contractual matters, the law has always been that one is presumed to know and intend what he places his signature to."
The instant case does not come within the rule of Southern Building & Loan Ass'n v. Dinsmore, 225 Ala. 550, 144 So. 21 (1932), that the law imputes no knowledge of a contract's contents to a party who signs the contract without having read or having knowledge of its contents, if that party is lulled into a feeling of security because of a misrepresentation of the contents of the contract and because of special circumstances, relationships, or disability of the party relating to the contract's execution. See also Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala.1983); Rose v. Lewis, 157 Ala. 521, 48 So. 105 (1908). There is no evidence that the Holmans did not read or were incapable of understanding the import of the contract provision. There is no evidence of any special relationship between the Holmans or Clokey or any special circumstance or disability of the Holmans that would negate a finding that they knew of the contract provision. Moreover, there is no evidence of any misrepresentation of the content of the agreement or the employment of trick or artifice that would lull the Holmans into a false sense of security.
The delay of the Holmans in enforcing the alleged possession date and thereafter the delay in filing suit also negate a finding of reliance. Although the agreement was signed on June 21, 1983, the Holmans' pleadings establish that no demand *1145 was made for possession of the Minton home until March 1984seven months after the Holmans allege they were promised possession. Despite being denied possession of the Minton home in March 1984, the Holmans continued to attempt to sell their home until October 1984, when they removed their house from the market and filed suit. Had the alleged representation of Clokey been a material inducement upon which the Holmans relied, the Holmans would have expedited their initial demand for possession as well as their fraud claim once they had knowledge that possession would not be forthcoming.
In addition, the contract of sale recited: "purchaser to make monthly payments on house as of July 1983." The inclusion of the word "payments" evinces an understanding that the Holmans were to make more than one payment on the Mintons' mortgage. In fact, the Holmans made monthly payments on the Mintons' mortgage from July 1983 until October 1984 without having legally assumed the mortgage and with knowledge that possession of the Minton residence would not be given in August 1983.
The actual or imputed knowledge of the Holmans of the contract possession provision, as well as the Holmans' actions, preclude any finding of a reasonable reliance upon the alleged representation of Clokey. These factors foreclose an actionable fraud claim, and the defendants are entitled to judgment as a matter of law.
In conclusion, we emphasize that we make no determination and express no opinion with respect to the remaining issues in this pending cause.
AFFIRMED.
TORBERT, C.J., and MADDOX and SHORES, JJ., concur.
JONES, J., concurs specially.
JONES, Justice (concurring specially).
I write separately to expand briefly upon the concluding paragraph of the opinion. The central thrust of the opinion is to the effect that the absence of any contractual provision with respect to the Holmans' right of possession before "closing," coupled with their course of conduct, bars their claim for fraud. But this holding is not to be construed as validating, for other purposes, the contract and its enforceability. Indeed, the contract is a "model" of ambiguity. It not only fails to specify a date of closing, but also fails to condition closing upon the sale of the Holmans' home. The $7,000.00 down payment and the additional monthly payments on the Mintons' mortgage (which prevented foreclosure) are highly suspect as being ineligible for forfeiture, particularly in light of the Holmans' non-possession of the Mintons' property. See Humphrey v. Humphrey, et al., 254 Ala. 395, 48 So.2d 424 (1950). I make these observations in the abundance of caution so as not to mislead the trial court in its further determination of the issues still pending in this cause the counterclaim and the interpleader action.
NOTES
[1]  Still pending before the circuit court is a counter-claim filed by the Mintons, as well as an interpleader action filed by Steele Realty.