§ 105-1 Adoption of code.
§ 105-2 Bureau of Fire Prevention.
§ 105-4 Amendments, revisions and deletions to code.
§ 105-5 Modifications of code by Fire Marshal.
§ 105-7 Permit to sell fire-prevention equipment.
§ 105-8 Penalties for offenses.
§ 105-10 Property owner responsibility.
§ 105-11 Identification of structures.
Fire zones — See Ch. 108.
Oil and oil-burning equipment — See Ch. 162.
There is hereby adopted by the City of West Haven, for the purpose of prescribing regulations governing conditions hazardous to life and property from fire or explosion, that certain code known as the "Fire Prevention Code," recommended by the American Insurance Association, being particularly the 1976 Edition thereof and the whole thereof, and the October 1976 revision thereof and such further revisions and/or republications as may hereafter take place, save and except such portions as are hereinafter deleted, modified or amended by § 105-4 of this chapter, and the same are hereby adopted and incorporated as fully as if set out at length herein, and, from the date on which this chapter shall take effect, the provisions hereof shall be controlling within the corporate limits of the City of West Haven.
The Fire Prevention Code shall be enforced by the Bureau of Fire Prevention in the Fire Departments of the respective fire districts of the City of West Haven.
A report of the Bureau of Fire Prevention shall be made annually and transmitted to the Board of Fire Commissioners of the respective fire districts.
The Corporation Counsel of the City of West Haven or any of his assistants duly authorized to act for him.
The City of West Haven.
Editor's Note: Amendments, revisions and deletions to the 1965 Edition of the Fire Prevention Code and the 1986 revision thereof were not included at the time of publication of the Code as amendments, revisions and deletions to the 1976 revision of the Fire Prevention Code are under review of the City Council. Upon completion of said review, such amendments, revisions and deletions to the 1976 revision will be included herein.
The Fire Marshal shall have power to modify any of the provisions of the Fire Prevention Code upon application, in writing, by the owner or lessee or his duly authorized agent when there are practical difficulties in the way of carrying out the strict letter of the code, provided that the spirit of the code shall be observed, public safety secured and substantial justice done. The particulars of such modification, when granted or allowed, and the decision of the Fire Marshal thereon shall be entered upon the records of the Department, and a signed copy shall be furnished to the applicant.
Whenever the Chief of the Bureau of Fire Prevention shall disapprove an application or refuse to grant a permit applied for or when it is claimed that the provisions of the code do not apply or that the true intent and meaning of the code have been misconstrued or wrongly interpreted, the applicant may appeal from the decision of the Chief of the Bureau of Fire Prevention to an Appeals Board of the three District Fire Chiefs within 30 days from the date of the decision appealed.
Any person, firm or corporation selling or leasing fire-prevention material, fire-extinguishment equipment or fire-detection systems not connected to the municipal fire alarm systems shall first register with the Chief of the Bureau of Fire Prevention and receive a permit to solicit in the City of West Haven.
Any person who shall violate any of the provisions of the code hereby adopted or shall fail to have complied herewith or who shall violate or fail to comply with any order made thereunder or who shall build in violation of any detailed statement of specifications or plans submitted and approved thereunder or any certificate or permit issued thereunder and from which no appeal has been taken or who shall fail to comply with such an order as affirmed or modified by the Appeals Board of the three District Fire Chiefs or by a court of competent jurisdiction, within the time fixed herein, shall severally, for each and every such violation and noncompliance respectively, be guilty of a misdemeanor, punishable by a fine of not more than $50 or by imprisonment. The imposition of one penalty for any violation shall not excuse the violation or permit it to continue, and all such persons shall be required to correct or remedy such violations or defects within a reasonable time; and when not otherwise specified, each 10 days that prohibited conditions are maintained shall constitute a separate offense.
The owner of any commercial, industrial, multifamily or one- or two-family residential structure having an identified wooden truss assembly shall be required to mount warning signs meeting the following minimum requirements.
Size and construction. Each sign required to be installed shall be a minimum of four-inch-by-six-inch piece of aluminum or stainless steel stock plate with a minimum thickness of 1/8 inch. On said sign shall be a firefighter Maltese cross symbol and in the center of the cross either the letters "R" "F" or "RF" to symbolize roof truss construction, floor truss construction or roof and floor truss construction respectively.
Mounting locations and height from finished grade. A sign shall be mounted directly to the right of each series of entrance doors (front, rear and sides of the building or structure) of a commercial structure at a height of five feet up from the finished grade. Additional signs may be required by the Fire Marshal when the distance between doors would require additional warning signs for visibility by Fire Department personnel. A sign shall be noticed directly to the right of the electric service drop of a residential structure. If the property has a Knox Box® on site, then a sign shall be located directly above the Knox Box®. The local Fire Marshal reserves the right to change the mounting location.
It shall be the responsibility of each property owner to mount, maintain and prevent obstruction of any warning signs required to be mounted on the building or structure.
The identification of a structure with truss construction will be through either a building permit or Fire Department pre-planning. The applicant of a building permit will be directed to the appropriate Fire Marshal's office.


text:
In Lo Cascio 1999, I described similarities and differences between narration and argumentation. My standpoint was that both types of systems show similar constructions and that they can often be considered two aspects or faces of the same medal. In this paper I want to highlight some new aspects of the parallelism.
Narration is characterized by two main categories: Event (E) and Situation (S). The difference between the two categories is an aspectual one, and not a temporal one. Events are states of affairs presented by utterances where the verb is marked by perfective tenses. This means that events are states of affairs presented as closed time intervals. Therefore they have a starting point and an end point.
It was very warm (S1) and she went out to buy an ice cream (E1). Then she saw John (E2) going to the station (S2). He was carrying a big suitcase (S3)”.
Where, S1 and S2 are open time intervals. E1 takes place within the time interval R0 and delivers the starting point for R1. E2 takes place within R1 and delivers R2, and so on.
States of affairs can also be presented as in progress (he was going to the station). In that case they are marked by an imperfective morpheme and are considered as situations, i.e. open time intervals. Situations can also be presented through utterances, which are marked by past perfect tense, as the first sentence in (3) shows.
In (3) the event R had been told (i.e. a state of affairs represented as closed time interval) is presented as starting point. That event has taken place previously in the same world but it originated a situation, which is of influence at the time interval during which the event E1 takes place.
Let us now have a look at the structure of example (3) in order to see how the temporal chain is formed and how the story moves forward.
In the story (3), E2 (he took a table) takes place after E1 (went into Montana bar) has been accomplished. E1 therefore delivers the reference time for E2, i.e. the time interval where E2 can take place. The reference time R1 begins an instant after E1 has been accomplished (cf. Partee 1984, Lo Cascio 1982, 1995b). E3 follows E2. E2 creates therefore the reference time R2 and delivers the conditions, which allow that E3 takes place.
An event or situation can take place in a world W or belong to a world W at the condition that it is in harmony and coherent with the already existing states of affairs and characteristics of that world.
So, an event such as: to go out to have an ice cream can be more congruent with a world where at time the situation “it is warm” holds , while less congruent in the same world, would have been, for instance, the event: he switched on the central heating.
In (3) the first utterance defines, as already said, the preliminary conditions needed to understand why the character is going to the bar Montana on May 2. The event (R be told) is presented as something which already happened, forms a background-story characterizing the world in such a way that the rest can happen. As such, that event forms the starting point of the story. Every event or situation, as a matter of fact, delivers the conditions or bases, which are needed in a specific world in order to understand and make possible that a new event comes to change that world. A chain of events and situations forms a story. Situations describe the world and are the background of it, while events change that world.
Temporally ordered clauses are narrative clauses. A sequence of at least two narrative clauses forms, according to Labov (1972:60), a minimal narrative text. Labov, nevertheless, doesn’t make a distinction between situations and events, although, according to me, the difference is crucial.
In narration, and in general, in communication, another crucial distinction is the one between foreground and background information. Space information, characteristics and properties of the spaces or traits of participants form the background information. They play a role either in determining whether a given event or situation fits with that world, or in guessing which will be the development of the story.
Descriptions and situations are, according to Reinhart (1985:783), non-narrative, non-temporal material and therefore cannot be foreground information but background information. Foreground information is only formed by temporal material, i.e. by events. The distinction between states and events is then, according to Reinhart, equal to the difference between (informative) background and foreground information. The aspectual opposition makes evident the distinction.
Background information provides the conditions to understand and to admit the existence of the states of affairs presented in the foreground. It is so to say the support for the foreground, since it presents characteristics, conditions, open time intervals created as result of events which have taken place previously: all elements which justify the existence of the information in the foreground.
After events have taken place, they change the world and create as a result, a new situation, which is determinant , within the new reference time, for which new specific event or situation can take place. The events changing into situation in the world become, so to say, part of the memory of that world where they have left a trace. This is a semantic and cognitive mechanism, which has a lot of consequences by the construction of knowledge and texts. As consequence of this mechanism, every time that the specific congruency principle, which previously applied, must in turn be either readapted, or restricted, or enlarged according to the new changes and situations. So the event “(he) took a table in the rear” is possible in a world where previously another event, namely “he went into the bar Montana”, took place.
Narration is to put together events and situations on a time-axis and to bind them by temporal relationship. Moving the story forward means to change constantly an initial world defined through the temporal relationship established with a perspective temporal point, which has been chosen by the speaker and is given for the addressee. I called (in Lo Cascio 1982) this perspective temporal point, the Given Primary Time (GPT). The GPT can be the time interval related to NOW (which means a deictic relationship). But it can also be delivered by other time intervals established by the encoder: the moment of narration, the time of the author, the time of a protagonist, the time of the reader, etc. In order for the addressee to be able to interpret the message, he must know which perspective point has been chosen for the temporal calculation. The Given Primary Time dominates and controls the temporal axis where events and situations are anchored or are going to be anchored and bound to each other in order to form a story.
Events in stories are basic. Their temporal succession forms the dynamic part of the story. Situations on the contrary are the static part of it and characterize the world to which an event or a set of events, which are part of a story, belong. Situations, since they are considered open time intervals, are not able to let the story move forward. They form, so to say, the memory of the world to which they belong.
Before an event is allowed to take place, shifting the story forward on the temporal axis, the preceding event, which is anchored on the same temporal axis, must have come to an end.
Every event can also be the point of departure, the head of a sub-story. A sub-story is then a kind of secondary information for an event or situation, which is placed on a higher level. The sub story is a background information, reinforces the acceptability of new events or situations, and allows a further selection of them in the same world.
Moving the story forward brings about the changing of the actual world into a new one whereto a new event is added. The new event belongs to the possible sets of events or situations, which are allowed to take place in that specific world. The story makes a choice between all the possible candidates.
According to my analysis, in narration, every event, after having taken place and having created a reference time (or world), becomes a background information for another new event, which will be added to the same time axis and anchored within that reference time. It could be said, in cognitive terms, that our knowledge is , in this way, built up as a form of addition, of a piling up.
It is well known that an addressee (reader or listener) at every stage of the story can imagine or guess which events or situations are going to take place, choosing between all those which are allowed according the congruency principle (cf. Lo Cascio 1997). The set of possible states of affairs, which can belong to a specific world, is part of the encyclopedic knowledge of each speaker, but the set changes, in entity and quality, according the specific knowledge a speaker has. Nevertheless, in the reality the encoder makes often a different choice than the decoder, so that it is frequently a surprise for the reader, or the listener, the way a story continues and develops. This is the nice play in the interaction between encoder and decoder(s).
Background information can be hidden or remain implicit. It can be the task of the decoder to reconstruct, to guess which is, or could be, the needed background information, in order the event, or set of events, presented, can be considered possible, adequate, acceptable, and congruent with the world in which they show up.
The reconstruction of information, which, although lacking, should justify the existence of the events narrated, or, mutatis mutandis, justify the standpoints proposed by the encoder, must be made in accordance with the congruency principles.
In the reconstruction procedure, the main guide is thus the congruency principle, with the help, for argumentative text, of the general rule, the warrant, which makes possible and justifies that a specific argumentative relationship holds.
I think that day she went out for an ice cream (E) because it was very hot (S).
Two possible interpretations can be assigned to the sentence. The event he went out is true; the situation it was hot is true and the relationship of cause and effect between the two components is questioned. (1a) contains then, an argumentation, since a refutable claim is made about the relationship between the two states of affairs in the specific situation and at that specific time.
But (4) could refer to another type of reasoning, namely that the state of affairs (event) he went out for an ice cream has the status of a standpoint, of a refutable claim or hypothesis. The event could have taken place (although not sure) because triggered, at some time, by the state of affairs (or situation) it is hot, which is given as true. The situations characterize as already said the world where at a given time an event takes place. The description of the situations characterizing that world can function as “justification” or “data”, supporting the possibility that a relationship happens to be true, But it can instead be a support for a standpoint or for a claim according which a specific event will happen. The fact that there is at a given time interval a world where the state of affairs it is hot holds, creates the conditions for, or makes plausible the statement that the event “ she went out for a ice-cream” also holds or can be guessed to take place.
So, if a standpoint, or a set of data related to that standpoint, can be questioned, then reasoning is involved. The epistemic modality changes narration into argumentation!
According to Lo Cascio (1991a, 1991b), at least three categories are always needed in order to have an argumentation: the standpoint or opinion (O), the argument (A) and the general rule (GR), which binds the argument to the standpoint. The general rule GR and the Argument A form together the Justification (JUS). Both, the standpoint (O) and the argument (A), refer to states of affairs, which can have the status of event and situations. The general rule defines the congruency principle for argumentation. Every state of affairs presented as argument A requires and triggers its own GR in order to be relevant for the standpoint, which must be justified.
A statement, which can be questioned, forms then the main part of reasoning. The statement must be accompanied at least by one justification in order to form an argumentation. The justification must be explicit or recoverable from the (con)text, and has the function to present data, which can make plausible that the connected standpoint is valid.
where JUS, contains all the conditions for O to be true.
How old was she? It was the first question Colonel Roux asked himself when he received the summons to meet her, As an examining magistrate she must be a woman of a certain age.[ARG]. But there was always the curiosity if one was to work with a woman. Madame Annemarie Levi. An Italian name.
As it will be clear, (6) contains reasoning. There is uncertainty about the age of a certain woman and the guess is made that the woman in question must be of a certain age because she is an examining magistrate (which is a given fact, a situation or a characteristic of that world). This fact could imply the existence of another state of affairs, namely the situation: the woman is old. The implication is triggered by a warrant of the type: “to become examining magistrate takes a long time”. Those who have reached that position, are then old persons.
´That’s the angle that interests me. How could they persuade the President of the Republic to sign a pardon for a thug like Brossard? And they almost got away with it. In fact, if this new charge hadn’t been laid against him we wouldn’t be able to touch him now.
” You are right, madame. That changed things. Of course, he’d have been freed in any case, when the statute of limitations for wartime crimes ran out five years ago, The question is why didn’t he come out of hiding then [O].?
In (7) the question: Why didn’t he come out of hiding then, concerns an event/situation having also the function of a standpoint (O), and which could have been caused by the event or situation he was afraid, which in turn functions as justification (JUS) in the argumentation. (7), gets the value of argumentation due to the presence of the epistemic modal “I suspect”.
In (7) the standpoint (O) operates on an event (it didn’t come out), which has already taken place and is considered true. The argumentation contains the definition of the possible reasons or causes for the existence of that event. The hypothesis is made, or the justification is proposed, that the event in question has been caused by the fear of reprisals, a standpoint, which is in turn justified by the fact/situation that it concerns the same people who’ve already launched a charge of crime against him.
(7a) shows that the sub-justification (ARG’) is a further support for the higher justification and refers to states of affairs, which have already happened and are now to be considered situations, part of that world and of relevant influence for it. The same complex configuration holds for narration, where the embedded stories have also the same function of background information. In every story or argumentation, secondary stories or secondary argumentation, can be embedded into a higher one, with the aim to give more details about the world at stake and to state the truth-value.
Not all information is always needed. A lot of information remains therefore implicit or not mentioned. It is the task of the decoder to imagine and reconstruct the missing information. Many writers (and encoders) are sparing n giving details. Others on the contrary abound in it.
– Argumentation requires that the truth or status of at least one of the components (standpoint, justification) or the relationship between them can be questioned.
– Both types of texts presume that general rules regulate the binding between the components. The movement forward of the story and the relationship between standpoint and justification are regulated by a general rule which is respectively the congruency principle and (in the case of argumentation) the so-called warrant (in Lo Cascio’s lexicon the General Rule).
– Both, narration and argumentation need the description of the world in order to state the truth-value of their components or of the relationship between their components.
– There is an analogy between, on one side the dichotomy event-situation, and on the other side the dichotomy standpoint-argument. (E equal to O and S equal to A).The difference is, that while a story requires at least two events temporally connected to each other, aside from the explicit presence and mentioning of situations, in argumentation, standpoint and argument must both be explicit or recoverable, independently of the fact that they operate on events or on situations.
– Argumentation is dominated by the sequential order of the two categories: standpoint-justification.
– If reasoning presents both standpoint and data, as true, then a statement is being made about the relationship of the type cause-effect, more than a real argumentation.
– The relationship between the two main components of argumentation is regulated by the general principle, the warrant. The general rule must be acceptable for both the encoder and the addressee, in order for the argumentation to be successful(i).
– Notice that if we try to change the reasoning in (6) into a story, then two situations would be related to each other. Cf.: The woman was a magistrate and she was old. But two descriptions, which are congruent, do not yet form a story, because an event is lacking. This would mean that an argumentation could benot only the modal counterpart of a story (which would require an event) but also a counterpart of the description of at least two possible congruent situations in the same world, or story.
– Concluding, argumentation concerns a world where some situations are given as true and an hypothesis is made about which possible event or situation can take place or could hold, according a given congruency principle or a general rule.
– The relevance of the dichotomy background – foreground seems to me evident, also for argumentative texts. In the background information are gathered all the states of affairs which can support and justify a standpoint. The standpoint should form the foreground information. The Justification is then the background information. The two components are connected by the general rule and by the congruency principles.
4. Interaction between narration and argumentation.
From the point of view of the rhetorical interrelation between the two types of texts, narration is often used to give more support to the argumentation, since it concerns states of affairs, which are given, or considered, as true. This is supported by the fact that narration is always marked by the temporal modality, which helps to define the truth-value of the states of affairs.
“Dad went to say something, and I knew he was going to ask what had happened to me, so I motioned to him not to and he sat down. What a moment it must have been for him [O]. I’d broken his heart so many times in the past by getting into trouble [JUS1]. Now here he was, a man who had given years of devoted service to the British Army facing a son accused of such an atrocious crime against the system he had proudly upheld [JUS2]. He had brought his family away from Belfast to leave the bitterness and hatred there behind [JUS3] He and mum had worked hard to bring up a big family as best they could [JUS4]. And it had come to this.
Paddy Joe Hill Forever lost, forever gone p.101.
In (8) narration and argumentation are interacting: the prisoner argues about the sorry his father must have felt, a father who sees the son arrested and incriminated for terrorism. A father who was so devoted to the state and who had served the army.
All the narrated facts, events or situations, form actually in (8) the reason and the justification for concluding that the father must have felt a lot of pain. All three narrated events, which took place in the past form now the characteristics of the world, i.e., the situations which justify and cause now that the event/situation/ standpoint “father is sad” takes place and is true.
4b. That day, I think, she went out for an ice cream, [-] it was very hot.
In a detective story or a crime story, reasoning and argumentation are central. A detective story is based on a reasoning in order to discover the culprit and to understand how things passed, by analyzing the facts and data at disposal. In general, the play of the writer consists in requiring the participation of the reader/listener to the detection of the culprit. But the reader will come to the wrong conclusion not because he will make logical mistakes or apply wrong warrants, but because he lacks a relevant information, which is known only by the writer and which is hidden, and only given at the end of the story. The only one who has the right to reach the truth is then the writer or the encoder/or protagonist.
The textual form, which is preferred in argumentative stories, is often a dialogue. Dialogue can be the place of an interactive argumentation. The way a dialogue proceeds is an instance of all the possible paths, which can be followed by each step in the discussion. In this way, argumentation as well as narration, become critical but also creative.
Every turn in the discussion is a changing in the world in the way the congruency principle would admit. The choice of which path must be followed, or will be followed, among those allowed by the congruency principle is on the specific participant who takes the turn over. This participant establishes the path to be followed until the other discussant will take it over. The latter then has the right to privilege another path or to remain on the same one the other discussant had proposed.
One of the strangest witnesses of the case was a chap called Tom Watt, whose damming testimony was aimed mainly at John Walker, but by implication was bad for all of us [STANDPOINT], Watt lived in Alum Rock, Birmingham, and worked in the same factory as John, Richard, and Murray [the other three incriminated] He said that he knew they were IRA sympathizers and that John had been on an IRA training session in Ireland [JUS1]. He claimed John had often told him not to go out on particular nights, and on each occasion bombs had gone off round the city [JUS2]. On the Thursday of the pub bombings, he said, John had told him: “Don’t be going out for a drink tonight” [JUS4]. He said John had been very bitter at McDade’s death, and shortly after it had asked Watt if he knew where he could get some cheap alarm clocks, Watt said he had told John “I thought you usually used pocket watches”, and John had replied, “These are going to be big bastards”. [JUS5]. All in all it was pretty devastating testimony which must have had enormous influence on the jury [STANDPOINT].
It was because of the importance of the so-called confessions in our case that within a short time of the trial opening the judge dismissed the jury for eight days to hold a “trial within a trial” to determine whether or not they could be admitted as evidence.
The mini-trial was a straightforward affair/ Either we were lying or the police were. There was no middle ground. Our problem was that we had no evidence to show the liars were the police. Nearly all the medical evidence was unsatisfactory because it was difficult to differentiate between the injuries we Had received from the police and those inflicted at Winson Green.
In (9) the message to the reader would be that the truth may often not be discovered and that the facts are manipulated. It is of course a pessimistic view of the world but sometimes a realistic one. There are many situations and stories in the real or in the fictional world in which the truth doesn’t show up or is not allowed winning.
[i] It would be interesting to define the differences between a congruency principle holding in a narration and the warrant regulating the argumentation. The more is interesting since argumentation and narration are very often interrelated into the same text.
Eemeren, F. van, R. Grootendorst, F. Snoeck Henkemans (eds) (1996) Fundamentals of Historical Backgrounds and Contemporary Developments Mahavah, Lawrence Erlbaum Associates, Publishers.
Kamp, H. & C. Rohrer (1981) Tense in texts. In R. Bäuerle & C.Schwarz & A.V. Stechow (eds): Meaning, use and interpretation of language Berlin: 250-269.
Labov , W. (1972) The transformation of experience in narrative syntax. In: Language in the Inner City Philadelphia, University of Pennsylvania Press.
Lo Cascio, V. (1991b) Grammatica dell’argomentare: profili strutture strategie Firenze, La Nuova Italia pp. 448, Spanish translation, Gramatica de l’argumentación, Madrid, Alianza Edítorial.
Lo Cascio, V. (1995b) The relation between tense and aspect in Romance and other languages. In: P.M. Bertinetto, V. Bianchi, J. Higgbontham, M. Scartini (eds) Temporal reference, Aspect and Actionality Torino ‑Rosemberg ‑ Sellier, pp.
Lo Cascio, V.(1995c) Aspetti retorico‑argomentativi nella narrativa contemporanea. In: S.Vanvolsem, F. Musarra, B. van den Bossche (eds) Gli spazi della diversità Roma‑Leuven, Bulzoni‑Leuven University Press, pp. 211‑242.
Lo Cascio, V. (1997) L’ascoltatore nel labirinto narrativo. In: D. Aristodemo, C. Maader & R. De Rooy (eds.) Studi di teoria e storia letteraria Firenze, Cesati 51‑69.
Lo Cascio, V. (1999) Narration and Argumentation: a Rhetorical strategy. In: E. Rigott (ed) Retoric and Argumentation Tubingen 1999, Max Niemeyer Verlag pp. 13-38.
Lo Cascio V. & C. Vet eds, (1986) Temporal structure in sentence and discourse; GRASS 5 ‑ Foris Publications‑Dordrecht.
ISSA Proceedings 2006 – The Definition And The Negotiation Of The Norms Of Discussion In Newsgroups: Which Communication Ideal?
ISSA Proceedings 2002 – Argumentation’s Black Box?

matches: V. V. V. V. V. V.


Julie Koerner is a partner at OKGC and has been with the firm since 2004. Julie handles litigation in both federal and state courts, with a primary emphasis in the defense of matters brought against public entities, including §1983 police liability and personal injury suits.
Having been engaged in the practice of law for twenty-five years, Julie has extensive trial experience and has taken to verdict over thirty civil matters with favorable outcomes for her clients in over 80% of these cases. Additionally, Julie has successfully argued before the United States Court of Appeals for the Seventh Circuit and has frequently obtained favorable rulings for her clients on dispositive motions.
Outside of the office, Julie is an active member of the Chicago Bar Association, having worked on and performed in the CBA’s annual Christmas Spirits production, and is also a member of the Defense Research Institute. Julie recently assisted in a CLE presentation regarding recent updates in the Illinois Eavesdropping Act.
Stainback v. Dixon, 569 F.3d 767 (7th Cir. 2009)—Seventh Circuit upheld grant of summary judgment in favor of defendant police officers in §1983 excessive force suit.
Chandler v. Montgomery, Northern District, Illinois—Jury verdict in favor of defendant police officers in §1983 excessive force suit.
Williams v. Southern Illinois Riverboat/Casino Cruises, Inc., Southern District, Illinois—Jury verdict in favor of defendant police officer in §1983 excessive force suit.


THE PEOPLE, Plaintiff and Respondent, v. DANIEL SIMON SCHEER, Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Lance E. Winters and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Simon Scheer appeals from the judgment entered following a jury trial that resulted in his conviction of felony hit and run (Veh. Code, § 20001, subd. (a); counts 1, 2) and vehicular manslaughter (Pen. Code, § 192, subd. (c)(2); count 3) and findings, with respect to counts 1 and 2, that he had suffered a prior felony conviction which qualified as a strike under the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). fn. 1 He was sentenced to prison on count 1 for a total term of nine years, consisting of a six-year term, or double the three-year middle term, for his conviction, plus three years or one year for each prior prison term enhancement, and to county jail for one year on count 3.
Appellant contends the trial court abused its discretion by allowing evidence about the prejudicial details of his prior conviction for fleeing police officers. Alternatively, he contends his counsel was ineffective for failing to make a motion to limit the scope of cross-examination on that prior. He contends his counsel also was ineffective for failing to object to questions about car insurance and about ownership of the car he was driving when the accident occurred.
Appellant further contends the court erred in instructing the jury that he was under a duty to aid injured parties and in failing, instead, to instruct that he was absolved from such duty since others already were assisting the injured. He urges such instructional errors were prejudicial since there was insufficient evidence to establish his violation of the alternative duties to stop after the accident and to provide his name, address, and other requisite information.
Based on our review of the record and applicable law, we affirm the judgment.
We hold that the driver's duty to render assistance under Vehicle Code section 20003, at minimum, requires that the driver first ascertain what [68 Cal. App. 4th 1015] assistance, if any, the injured person needs, and then the driver must make a reasonable effort to see that such assistance is provided, whether through himself or third parties. Such duty is not satisfied where the driver flees the scene without making any inquiry or other investigation regarding the victim.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal. 4th 1199, 1206 [26 Cal. Rptr. 2d 23, 864 P.2d 103]), the evidence established that on May 24, 1997, around 7:45 p.m., Gum Ja Lee was driving north on Reseda Boulevard at about 35 miles per hour when she observed appellant's car, which was proceeding west on Arminta, enter the intersection. She cried out, "Look at [that] crazy driver. Look at [that] crazy driver." There was a stop sign on Arminta but no stop sign or lights for traffic on Reseda. Appellant's attempt to cross Reseda was unsafe because of the proximity of Lee's car. Although Lee applied her brakes, the front of her car collided with the side of appellant's car, which triggered the airbags in Lee's car. Appellant's car sustained some damage to its sheet metal, and the rear wheel was thrown out of alignment. Appellant was bleeding apparently along the right side of his face, but he appeared to be alert. Lee, who was conscious, sustained injuries to her neck, chest, and fingers. Oksoon Kim, her passenger and 80-year-old mother, however, was unconscious and bleeding. Kim died from head trauma six days later without regaining consciousness.
Don Julius, one of eight individuals who gathered at the scene, approached appellant's vehicle, which was inching toward Lee's car, and asked appellant to turn off his car and stop. After appellant refused to comply, which request Julius repeated a second time, Julius reached inside and attempted to turn the ignition to the off position. Appellant, however, accelerated to more than 10 miles per hour, and Julius was dragged along for about half a block.
Julius got into his Jeep, which was then being driven by his girlfriend, and gave chase. He was joined by a van driven by another eyewitness. The chase proceeded through residential neighborhoods at speeds of up to 30 miles per hour. Although appellant's vehicle fishtailed because of the collision damage, appellant was still able to maneuver his car, which had a stick shift and a clutch, skillfully enough to make fast, albeit unsafe, turns onto three residential streets. However, after he ran a stop sign and made another turn, his car spun into a curb.
As appellant tried to get out, Julius held the car door fast and told him to stay where he was. After others arrived, Julius allowed appellant to sit on the [68 Cal. App. 4th 1016] grass until the police arrived. Julius's opinion that appellant appeared "a little bit dazed" was based only on his statement, which was not corroborated by appellant's physical appearance.
Appellant presented an unconsciousness defense. He testified that after stopping for a stop sign at Arminta and making sure there was no cross traffic on Reseda to his left, he proceeded into the middle of the intersection where he stopped to check for traffic on his right. The next thing he recalled was a man stating, "Get out of the car. You had an accident." Appellant panicked upon discovering blood on his head. He did not know where he was. He next realized that he was lying on the grass surrounded by many people. He denied recalling the accident or his flight. He also denied having any reason to flee following the accident. He testified that never before had he suffered from a lapse of consciousness while driving. Appellant had told Julius, "I don't know what happened. That's why I didn't stop."
Ronald Markman, a psychiatrist, was not able to determine whether appellant, who suffered a one-inch cut on his scalp, had suffered a concussion. He opined, however, that a slight head injury could result in a concussion and that although the injured person could still drive an automobile, his or her state of consciousness could have been altered.
Ryan Cooper, an off-duty police officer, testified that within a minute or two after the collision, he observed someone telling appellant to pull over to the curb and heard appellant respond, "Oh, it's okay. It's okay." Appellant then fled. About 15 to 20 minutes later, Cooper identified appellant, who appeared to be conscious, coherent, and oriented.
Harold Lowder, the physician who examined appellant following the accident, opined that appellant did not suffer from a loss of consciousness or a concussion. He testified that someone who was dazed or who had lost consciousness would not have been capable of driving the distance which appellant drove, and someone who had experienced an altered state of consciousness would have crashed the car while trying to drive.
Appellant admitted he had suffered three prior felony convictions, including one for evading an officer with willful disregard for safety (Veh. Code, § 2800.2), for which he served prison sentences. On cross-examination, he admitted that during the prior pursuit he may have driven through a red light but testified that he had stopped to ensure it was safe first. He further admitted that he had driven through several intersections in a manner which caused other vehicles to brake sharply to avoid a collision. His explanation was that, based on what his passenger related, he believed the officers, who [68 Cal. App. 4th 1017] were in an unmarked police car without any distinctive lights, were gang members.
Los Angeles Police Officer Mike Koeller testified that on May 20, 1993, around 4:15 p.m., he and his partner, who were both in uniform in an unmarked police car, attempted to effectuate a traffic stop after appellant's vehicle failed to stop at a traffic light. Officer Koeller honked his horn twice and activated the patrol light beneath the rearview mirror. When appellant failed to respond, he activated his sirens, and a five-minute pursuit ensued. During the chase through residential streets, appellant made an illegal turn and ran various stop signs and traffic lights, which unsafe conditions caused other vehicles to give way. When a black and white police car joined the pursuit, Officer Koeller backed off. Appellant was detained about two to three miles away.
[1a] Appellant contends the prior flight evidence was irrelevant to show either an intent or motive for fleeing the accident scene and was unduly prejudicial. We find no miscarriage of justice arose from admission of that evidence.
 Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish. (See CALJIC No. 2.51.) Nonetheless, "[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence." (People v. Beyea (1974) 38 Cal. App. 3d 176, 194-195 [113 Cal. Rptr. 254].) A "motive" is defined as a "[c]ause or reason that moves the will and induces the action[,]" "[a]n inducement, or that which leads or tempts the mind to indulge a criminal act." (Black's Law Dict. (rev. 4th ed. 1968) p. 1164, col. 2.) Motive is an intermediate fact which may be probative of such ultimate issues as intent (see, e.g., People v. Thompson (1980) 27 Cal. 3d 303, 319, fn. 23 [165 Cal. Rptr. 289, 611 P.2d 883] [intent and state of mind]), identity (see, e.g., People v. Linkenauger (1995) 32 Cal. App. 4th 1603, 1610-1611 [38 [68 Cal. App. 4th 1018] Cal.Rptr.2d 868]), or commission of the criminal act itself (see, e.g., People v. De La Plane (1979) 88 Cal. App. 3d 223, 246 [151 Cal.Rptr. 843]).
[1b] Mindful of the foregoing principles, we first conclude the court erred in allowing evidence of the specific facts underlying appellant's prior conviction for evading officer with willful disregard for safety.
Before cross-examining appellant, the prosecutor indicated his intent to elicit evidence regarding appellant's prior flight "to show that he had the same intent and motive on this occasion as the last time." Appellant's attorney objected that such evidence was only admissible to show identity or intent, which were not at issue. Although acknowledging Vehicle Code section 20001 involved general intent, the prosecutor argued, "General intent is intent." The court ruled, "In light of the elements which must be proved under this charge, I'm going to allow the questioning."
Appellant's attorney renewed his objection when the testimony of Officer Koeller was offered as rebuttal. Without discussion, the court impliedly overruled his objection.
Pursuant to a modified version of CALJIC No. 2.50 ("Evidence of Other Crimes"), the court instructed the jury that the prior flight evidence was admitted for the limited purpose of determining: "A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission in this case which would further tend to show a motive for the commission of the crime charged."
We further find the prior flight evidence was not admissible to establish a motive. As discussed, ante, there must be a nexus or direct link between the commission of the prior misconduct and the charged crime. Here there is [68 Cal. App. 4th 1020] none. fn. 2 No relationship exists between appellant's 1993 flight from police following his failure to obey a red light and his flight from civilian eyewitnesses after a collision between his vehicle and another. The individuals involved in each accident are wholly unconnected to each other. The events themselves do not have any apparent overlapping characteristics.
 We also conclude the court's modified version of CALJIC No. 2.50 reflects an incorrect fusion of two distinct concepts: motive and common plan or design. "Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged." (People v. Ewoldt, supra, 7 Cal. 4th 380, 394, fn. 2, italics in original.) Thus, a common design or plan, like motive, is simply an intermediate fact. Unlike motive, however, a common plan or scheme depends on the existence of striking similarities between the prior misconduct and the charged crime, and a nexus between the commission of the two is unnecessary. In other words, a common scheme or plan focuses on the manner in which the prior misconduct and the current crimes were committed, i.e., whether the defendant committed similar distinctive acts of misconduct against similar victims under similar circumstances.
The presence of the same motive in both instances may be a contributing factor in finding a common plan or design. (See, e.g., People v. Lisenba (1939) 14 Cal. 2d 403 [94 P.2d 569] [murder of two wives, each of whom apparently drowned accidentally, motivated by desire to collect on double-indemnity insurance policy for each wife].) In contrast, the converse is not [68 Cal. App. 4th 1021] true. The manner in which the prior misconduct was committed, which is the focus of the common plan or design inquiry, does not give rise to a motive, i.e., incentive or impetus, for commission of the charged crime. A contrary conclusion would be a non sequitur.
The record also contains ample circumstantial evidence from which the jury was entitled to infer that appellant did not provide either victim with his name and address, the vehicle's registration number, and the name and address of the vehicle's owner. fn. 3 Following the collision, appellant did not exit his vehicle. He did not utter any words except "It's okay[,] [i]t's okay" when instructed by someone to stop his car, and there is no evidence that he wrote down the requisite information and handed the writing to anyone at the scene.
Additionally, the jury was entitled to infer appellant did not provide that information to Lee, the conscious victim, in light of his precipitous flight and the ensuing chase, which reflects an intent on the part of appellant to conceal his involvement in the collision. Disclosure of his name and other requisite information would have been inconsistent with such intent, and thus, the jury was entitled to infer such disclosure never happened.
For a contrary conclusion, appellant relies on People v. Mayo (1961) 194 Cal. App. 2d 527 [15 Cal. Rptr. 366] to support his position that the jury was not entitled to infer that he did not provide the requisite information unless the prosecution first inquired of those present at the scene whether the defendant provided such information. We find his reliance on that case to be misplaced. Mayo concluded that "from the sum total of the evidence it may be said to be reasonably inferable that Mayo did not affirmatively leave his name and address." (Id. at p. 534.) Mayo did not, as asserted by appellant, hold or even intimate that no such inference could be drawn unless the defendant, the victim, and others present were asked if the defendant had left his name and address at the accident scene with someone there.
We also conclude abundant evidence supports the jury's implied finding that appellant did not "render reasonable aid to the person[s] injured." The uncontroverted evidence established appellant fled the scene within a minute or two of the collision without investigating the condition of the other car's occupants. As discussed, post, he violated his duty to "render reasonable aid" by failing to make such investigation and by failing to ensure the requisite aid was provided either by himself or others. It is undisputed that he made no attempt to ensure the victims received such aid.
[6a] Appellant contends his attorney was ineffective both for not moving to limit the scope of cross-examination about certain details of his prior conviction and for failing to object to questions about his lack of car insurance and ownership of the car he was driving when the accident occurred. We find appellant has failed to carry his burden.
[6b] Applying these principles, we conclude the record reflects satisfactory explanations for appellant's counsel's omissions.
Initially, we conclude appellant's counsel was not ineffective for failing to object to the prior flight evidence as more prejudicial than probative. (Evid. Code, § 352.) Such objection would have been contrary to his defense strategy. The prosecutor argued the prior flight evidence was relevant to show intent and motive and that its "probative value outweighs any prejudicial effect [of showing] he is a bad guy." Appellant's counsel argued that such evidence was admissible only to show identity or intent, neither of which was an issue in this case. As a tactical decision, he may have elected [68 Cal. App. 4th 1025] not to make a prejudice objection for the reason that it would have been inconsistent with his position that the prior flight evidence had no admissible probative value whatsoever, and thus, none to weigh against the prejudicial impact of such evidence.
We further conclude his counsel was not remiss in failing to move for exclusion from the scope of cross-examination any inquiries about the narcotics paraphernalia found during the prior flight incident. On cross-examination, after appellant denied he had a reason to flee the police that day, the prosecutor asked, "What if I tell you the police report indicates that there was a coke pipe in your car?" Appellant's awareness of the coke pipe's presence in the car would have provided a motive to evade apprehension by the police.
As discussed, ante, the existence of a motive to flee police in the prior flight incident does not give rise to a motive for the flight from civilian bystanders in this case. A lack of relevancy objection therefore ordinarily should have been made by appellant's counsel. However, because the court had already overruled his relevancy objection to evidence of the specific facts underlying the prior flight incident, appellant's counsel no doubt decided such an objection and a motion to exclude further inquiry along this line would have been futile.
Additionally, appellant's exculpatory responses negated any prejudicial impact from the reference to the cocaine pipe. He testified that "[i]t might have belonged to the other guy [or it] could been right there." When asked if it were not his, appellant replied, "No, it wasn't."
Instead, both subjects were highly probative of whether appellant, in this case, had a motive to flee the accident scene. On cross-examination, appellant acknowledged testifying he had no reason to flee and then added, "[n]one whatsoever." Additionally, by law, every driver of a motor vehicle is [68 Cal. App. 4th 1026] required at all times to carry in the vehicle evidence of the requisite financial responsibility, such as proof of insurance, then in effect for the vehicle. (Veh. Code, § 16020.) The failure of a driver involved in an accident to provide such evidence at the time of the accident may result in the suspension of his or her driving privilege. (Veh. Code, § 16070.) Accordingly, inquiries about car insurance would be also highly probative of whether appellant had a motive to flee because he knew the vehicle was uninsured.
In contrast, such inquiries were not designed to elicit evidence which would be particularly prejudicial, i.e., " ' "evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (People v. Gionis (1995) 9 Cal. 4th 1196, 1214 [40 Cal. Rptr. 2d 456, 892 P.2d 1199], italics in original; accord, People v. Bolin (1998) 18 Cal. 4th 297, 320 [75 Cal. Rptr. 2d 412, 956 P.2d 374].) In view of these considerations, appellant's counsel no doubt concluded an objection would have been unavailing.
 Appellant contends the trial court committed instructional error by giving CALJIC No. 12.70 ("Felony Hit and Run") instead of instructing the jury that appellant had no duty to assist the victims because others were already providing aid. We find no error.
The record reflects appellant did not object to CALJIC No. 12.70 and did not request the proposed instruction now raised for the first time on appeal. Pursuant to CALJIC No. 12.70, the court instructed the jury in pertinent part that "[a] willful failure of a driver of any vehicle involved in an accident resulting in death or injury to another to comply with any of these duties is a violation of Vehicle Code section 20001 [felony hit and run;] ... to immediately stop at the scene of the accident; to give his name, current residence address, registration number of the vehicle and the name and current residence of the owner of the vehicle to the person or to the driver or occupants of the other vehicle, if any ...; and to render reasonable assistance to a person injured."
We further conclude the court correctly instructed the jury on the duty of appellant "to render reasonable assistance to the person injured," and that no error arose from omission of the proposed amplifying instruction that "as aid was being provided by others, appellant had no duty or obligation under the law to interpose himself and also give aid," which instruction was not supported by the evidence.
Pursuant to CALJIC No. 12.70, the court instructed the jury that a verdict of guilty could be based on appellant's failure "[t]o render reasonable assistance to a person injured." The court explained that such assistance "includ[ed] the transportation or making arrangements for the transportation of any injured person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or that transportation is requested by the injured person."
We have no quarrel with the proposition that the above instruction is inappropriate where such assistance by the driver is unnecessary, as in the case where paramedics have responded within moments following the accident. We disagree, however, that the driver's statutory duty to render "reasonable assistance" is nullified merely because bystanders are on the scene or offer "assistance."
Those are not the facts here. The undisputed evidence reflects appellant fled the scene within a minute or two after the collision and made no attempt either to exit his car or to ascertain either the condition of the victims or whether any of the bystanders were in fact rendering the kind of assistance mandated by Vehicle Code section 20003.
Obviously, where, as here, the driver flees the scene without inquiring about or otherwise investigating the victims' condition, he has failed to perform the first step. (See People v. De Winter (1962) 210 Cal. App. 2d 173, 174-175 [26 Cal. Rptr. 386] [while two to three bystanders inquired of victim whether he was hurt, the defendant, who stood outside his truck about twenty feet away, never approached the victim and went home after the ambulance summoned by the bystanders arrived].) Additionally, the mere presence of bystanders who arguably gathered to aid the victims does not guarantee that the injured person will receive all necessary aid. In some instances, for example, a bystander may be willing, but not physically capable, of removing the victim from the wreck, or a bystander may be willing to call for help but no phone is available yet is not willing to transport the victim to a medical facility.
In view of the foregoing, we further conclude that appellant was not entitled to an amplifying instruction to the effect that his duty to render necessary assistance was obviated because such assistance was rendered by others. The fortuitous fulfillment of the driver's duty to render reasonable assistance to the injured victim or victims by Good Samaritans cannot operate to exonerate the driver and nullify the fact such duty was breached [68 Cal. App. 4th 1029] by the driver. To reach a contrary conclusion would impermissibly immunize the driver from the penal consequences of such breach and encourage scofflaws to violate both the letter and spirit of the law.
This disposition obviates the need to address appellant's related contentions that the assigned instructional errors were prejudicial because there was insufficient evidence to establish his violation of the alternative duties to stop after the accident and to provide his name, address, and other requisite information at the scene except to note that the sufficiency of such evidence was established, ante.
The judgment is affirmed. The superior court is directed to file an amended abstract of judgment which shall reflect the $200 restitution fine.
Epstein, J., and Curry, J., concurred.
FN 3. Vehicle Code section 20003, subdivision (a), requires the requisite information be provided to "the person struck or the driver or occupants of any vehicle collided with [as well as] any traffic or police officer at the scene of the accident." Assuming that receipt of such information by a bystander from a fleeing driver would satisfy the requirement, it is sheer speculation on the part of appellant that this could have happened here.


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Appeal from the Circuit Court for Orange County, Alan S. Apte, Judge.
Jammie Jerome Brown, Jr., Bonifay, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
Jammie Jerome Brown, Jr. (the defendant) appeals the trial court's order summarily denying his motion filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We reverse and remand for reconsideration of the defendant's first and fifth grounds for relief.
The defendant timely filed a rule 3.850 motion. The motion raised five grounds for relief, arguing, among other things, that trial counsel had rendered ineffective assistance of counsel by failing to call material witnesses, Melvin Beasley and Toby Durham (ground one), and by failing to object to a jury instruction on the lesser-included offense of attempted second-degree murder which did not include an independent recitation of excusable and justifiable homicide (ground five). The trial court entered an order summarily denying all five grounds for relief.
The defendant challenges this order, claiming that the trial court erred in summarily denying ground one and failing to rule on ground five. We agree.
Claims of ineffective assistance of counsel require satisfying the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the defendant must show that trial counsel's performance was deficient, which requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 694. Second, the defendant must show that counsel's deficient performance prejudiced his defense, which requires showing that counsel's errors were so serious as to create "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
[U]nder rule 3.850, a movant is entitled to an evidentiary hearing unless the motion, files, and record conclusively show that the movant is not entitled to relief. Fla. R. Crim. P. 3.850(d); e.g. Provenzano v. Duggar, 561 So.2d 541, 543 (Fla. 1990); Harich v. State, 484 So.2d 1239, 1240 (Fla. 1986); O'Callaghan v. State, 461 So.2d 1354, 1355 (Fla. 1984). To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion. Hoffman v. State, 571 So.2d 449, 450 (Fla. 1990).
Anderson v. State, 627 So.2d 1170, 1171 (Fla. 1993).
As to ground one, the defendant alleged in his motion that he informed his trial counsel of Beasley before trial and that Beasley was available to testify during trial. The motion further alleged that Beasley would have testified that he was with the defendant when the crime was committed and that he left with the defendant before the crime took place. The motion alleged that trial counsel never contacted or subpoenaed Beasley.

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This opinion concerns oral loan agreements. For purposes of SSI eligibility, proceeds of oral loans do not count as income if the borrower must repay the loan and it is an enforceable contract under State law. On several occasions a resident of Guam lent cash to a relative who now resides in California. Because the loan agreements were made in Guam, Guam law is controlling. Under Guam's law (which follows California's statute of frauds), these loans are enforceable contracts because the statute of frauds does not apply. The statute of frauds does not apply because the lender fully performed his part of the loan agreements by lending the money to the borrower.
The issue you presented is whether oral loans made to Claimant Yvonne P~ (hereinafter "Claimant") by Claimant's father-in-law are enforceable contracts under applicable state law.
The oral loans create a debt that is enforceable under the applicable state law.
From February through July 1999, Claimant's father-in-law (hereinafter "the lender") executed a series of loans in the total amount of $5300.00 to Claimant and her husband. An alleged oral agreement provided that Claimant was to begin repayment in July 2000, at the rate of $25.00 to $75.00 per month. The lender resides in Guam. Claimant may have resided in Guam when one of the loan agreements was made. Claimant now resides in California.
For purposes of SSI eligibility, the proceeds of the oral loans do not count as income to Claimant if she must repay the loans and they are enforceable contracts under relevant state law. Social Security Ruling 92-8p.
The law of the state with the most significant relationship to the contract determines the enforceability of an oral contract, unless the parties have made an effective choice of law. 1 Witkin, Summary of California Law (9th ed. 1987), Contracts § 55, pp. 90-91. In this matter, the lender resides in Guam. Moreover, at least one of the loan agreements was made in Guam. Based on these facts, a court is likely to find that Guam has the most significant relationship to the contracts and that Guam law should apply.
The Government of Guam has adopted the statute of fraud provisions of the California Civil Code. See Gogo v. Ada, (1955) 128 F.Supp. 92, 94 (D. Guam A.D.); G.C.A. T. 18, § 86106(1); Cal.Civ.Code § 1624(1). We were unable to locate any Guam case law relating to the facts of this matter. However, the decisions of the California courts provide guidance as to the construction to be given to the statute of fraud provisions in the Guam Code. Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir. 1975); Gogo v. Ada, 128 F.Supp. at 94.
Under the statute of frauds, an oral contract is unenforceable if, by its terms, it is impossible that it will be performed within a year from the date it is made. Plumlee v. Poag, (1984) 150 Cal.App.3d 541, 549; G.C.A. T. 18, § 86106(1); Cal.Civ.Code § 1624(1). The statute of frauds does not bar enforcement of contracts that are unlikely to be performed within one year, or those in which the period of performance is indefinite. Blaustein v. Burton (1970) 9 Cal.App.3d 161, 185; see also 1 Witkin, Summary of California Law (9th ed. 1987), Contracts § 284, p. 275.
Where, as in this matter, a contract has been fully performed by one party (the loans have been fully dispersed) and nothing remains to be done except the payment of money by the other party, the statute of frauds is inapplicable. Blaustein v. Burton, 9 Cal.App.3d at 185; see also In re William Duncan & Son, 165 F.Supp. 159, 161-162 (N.D. Cal. 1958); 1 Witkin, Summary of California Law (9th ed. 1987), Contracts § 289, p. 278. The purpose of the exception is to prevent unjust enrichment by one party to a contract when the other party already has fully performed his obligation under the contract. In re William Duncan & Son, 165 F.Supp. 159, 162.
The statute of frauds is inapplicable to the oral loans made to Claimant because the lender fully performed his promises of loaning Claimant $ 5300.00. The oral loans are enforceable under California law, which provides guidance as to the construction to be given to the Guam statute of frauds. The loans should not be counted as income to Claimant for purposes of SSI eligibility.