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All Reporters → cal-app-3d → Volume 215

Opinions in cal-app-3d Volume 215

*3 Opinion Mayacamas Corporation appeals from a summary judgment in favor of plaintiff Loren R. Mosher in a breach of contract action. Appellant contends that the trial court erred in precluding it from avoiding, rescinding or reforming its contractual obligations in light of a precipitous decline, subsequent to sale, in the value of the real property which was the subject of the contract. ...
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Opinion San Francisco Bay Area Rapid Transit District (BART) and Benjamin K. Dabalos (Dabalos), defendants below, appeal from a judgment entered against them following a jury verdict finding them liable for false arrest and imprisonment of respondent George Harden (Harden). We affirm. I Harden, a Black man, first came to work for BART as a police officer on or about September 25...
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*22 Opinion By information, appellant Frank S. Smith, Jr., was charged with (1) robbery of an inhabited dwelling house (Pen. Code, § 211, former § 213.5); 1 (2) burglary of an inhabited dwelling house (§ 459); and (3) assault with a deadly weapon (§ 245, subd. (a)(1)). Enhancements relating to personal use of a deadly and dangerous weapon and the intentional infliction of great bodily injur...
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Opinion Plaintiff and appellant Dean David Zilmer sued defendants and respondents Carnation Company (Carnation), and supervisory employees Mortimer Adams and Arthur Pate, 1 and various Does for wrongful termination of employment, breach of an implied-in-fact contract, breach of the implied covenant of good faith and fair dealing, and fraud. He thereafter substituted the Nestle Corporation (Ne...
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Opinion The petition for writ of mandate was filed March 28, 1989. It challenges a denial of a Code of Civil Procedure section 170.6 *44 disqualification motion as untimely and challenges a refusal to appoint the public defender. On March 30 we issued a temporary stay of further proceedings in the underlying criminal action and requested preliminary opposition. On April 13 the People file...
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I believe Welfare and Institutions Code section 738 does not authorize San Diego County to negotiate and implement an agreement with the juvenile court of Tijuana, Mexico, relating to juvenile court dispositional orders which involve Mexican nationals. I also conclude the Border Youth Project as implemented here violated Manuel’s rights of due process. I reach these conclusions even though the Bor...
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*93 Opinion The issue before us is whether in a prosecution for driving a vehicle with a blood alcohol level of 0.10 percent or greater (Veh. Code, 1 § 23152, subd. (b)), the partition or conversion ratio defined by the California Code of Regulations for converting a breath alcohol percentage to a blood alcohol percentage may only be rebutted by the defense demonstrating the defendant had a...
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Opinion This legal malpractice case resulting in a judgment of approximately $1.1 million, in favor of the plaintiff, Chester A. Holliday, is the aftermath of the events described in our unpublished opinion in People v. Holliday, reversing Holliday’s conviction of involuntary manslaughter relating to the killing of his wife. (See People v. Holliday ...
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*125 Opinion Plaintiff David Brunelle has appealed from a judgment entered following the trial court’s granting of defendant’s (Anthony Signore’s) motion for summary judgment. On appeal, plaintiff contends that the trial court abused its discretion in granting summary judgment in favor of defendant. He argues that the questions of foreseeability and reasonableness of defendant’s ...
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Opinion We originally granted the petition for a writ in this case. (In re Feiock (1986) 180 Cal.App.3d 649 [225 Cal.Rptr. 748].) It returns to us by way of writ of certiorari from the United States Supreme Court vacating the judgment and remanding for further proceedings. (Hicks v. Feiock (1988) 485 U.S. 624 [99 L.Ed.2d 721, 108 S.Ct. 1423].) Based upon new arguments, we deny the writ of habeas ...
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Opinion Petitioner Peter J. Douglas filed suit against his former employer and others (real parties Jeffrey Charles Weiner et al., hereinafter Weiner) to recover commissions he alleges he earned by selling Weiner’s home improvement services. The first and second causes of action of Douglas’s second amended complaint plead Weiner obtained Douglas’s services by falsely promising Weiner woul...
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Opinion Statement of the Case This is an appeal from an order dismissing appellant’s complaint for failure to bring the action to trial within five years as required by Code of Civil Procedure section 583.310. 1 Appellant filed a complaint against respondent on December 8, 1983. On October 16, 1987, appellant filed a voluntary petition for relief under chapter 7 of the B...
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*169 Opinion After being found an unfit subject to be dealt with in juvenile court (Welf. & Inst. Code, § 707), appellant, who committed this offense three weeks before his eighteenth birthday, was certified to superior court. There appellant pleaded guilty to committing two counts of lewd and lascivious act by force upon a child under the age of fourteen years (Pen. Code, § 288,...
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215 Cal.App.3d 174 (1989) 263 Cal. Rptr. 428 In re PEDRO C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PEDRO C., Defendant and Appellant. Docket No. H005009. Court of Appeals of California, Sixth District. October 31, 1989. *177 COUNSEL Juliana Drous, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assista...
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Opinion Appellant Pedro C. appeals a juvenile court order determining that his Penal Code section 245, subdivision (b) violation was included within the terms of Welfare and Institutions Code section 707, subdivision (b).1 He claims the juvenile court lacked jurisdiction to review a previous, contrary determination by a juvenile court referee, and that the juvenile court’s action was barred by dou...
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Opinion We affirm the summary judgment in favor of defendant County of Los Angeles, based upon its statutory immunity for personal injury caused by “any natural condition of any . . . beach” (Gov. Code, § 831.2), 1 and for injury arising from “hazardous recreational activities.” (§ 831.7.) Factual Background Plaintiff, a 16-year-old male, was injured while diving into...
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Opinion A jury found James Henderson Archer guilty of four counts of lewd and lascivious conduct upon a child under the age of fourteen in *201 violation of Penal Code 1 section 288, subdivision (a). Two of the counts alleged a “first” and “last” incident of digital vaginal contact and the other two counts alleged a “first” and “last” incident of penile vaginal con...
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Opinion Guy Santilli, employed by Children’s Hospital, was in the habit of using a freight elevator to reach the hospital’s parking lot. He was injured when the descending door of the elevator struck him on the shoulder as he was pushing the button which caused the door to descend. He brought the instant action against Otis Elevator Company, which had manufactured, installed and maintained the ...
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Opinion Here we hold * that the definition of a security in California does not depend upon whether or not it is exempt from qualification under the California Corporate Securities Act. Jerry Donald Smith was convicted of two counts of violating Penal Code section 487, subdivision 1 (grand theft) and two counts of violating Corporations Code section 25401 (securities fraud). We affirm. On...
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*244 Opinion In this writ proceeding, petitioners Jones T., Sr., and Anne T. challenge an order of the juvenile court after a permanency planning hearing. The order, in part, directed county counsel to initiate proceedings to terminate their parental rights under Civil Code section 232. Jones and Anne want the case remanded for a reevaluation of the permanency plan, specifically to (1) have t...
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Opinion Defendant Victor Wyatt was charged in an information with one felony count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a).) A jury found him guilty as charged. He was sentenced to state prison for the aggravated term of three years. Defendant contends on appeal that the trial court erred: (1) in failing to sua sponte instruct the jury that his inconsistent s...
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*263 Opinion Plaintiff California Concrete Co., Inc. (California Concrete), has appealed from a judgment in favor of defendant Beverly Hills Savings & Loan Association, a federal savings and loan association (Beverly Hills Savings), following the granting of Beverly Hills Savings’ motion for summary judgment. Facts In 1981, Beverly Hills Savings and Loan, ...
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Opinion We hold here that underinsured motorist coverage is not the equivalent of full excess coverage. As the statutory scheme is designed, the underinsured motorist carrier gets a dollar-for-dollar credit for all payments by third party tortfeasors to the insureds, whether the insureds are made whole or not. In other words, a carrier providing underinsured motorist benefits never pays the f...
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Opinion The City of Los Angeles appeals from a judgment in favor of respondent Programming-Enterprises, Inc., awarding a refund of business taxes for the years 1982 through 1986, in the sum of $128,404.90 plus prejudgment interest. The facts are not in dispute. The city’s business license ordinance imposes a tax on persons engaged in business in the city; the amount of tax is based o...
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Opinion John N. Bach and Janet L. Bach (Bachs) appeal from the judgment entered by the trial court following the opinion and decision of this court in County of Butte v. Bach (1985) 172 Cal.App.3d 848 [218 Cal.Rptr. 613] (Bach I). Having set forth the facts of this case in full in Bach I, we only briefly summarize them here. *299 T...
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Opinion This is the second appeal in a lengthy dispute between a landlord and his tenant. In the first appeal, this court concluded, inter alia, that the tenant had no right to compel the landlord to sell him the apartment in which he resided. (Lewis v. Hozz (July 7, 1988) A034746 [nonpub. opn.].) In this second appeal, we must decide whether the unlawful detainer proceedings brought by the...
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Opinion Part of La Bato’s backyard fell into a creek during a storm. State Farm rejected the claim which La Bato submitted under his all-risks homeowner’s insurance policy. State Farm now appeals from a judgment for $233,372.67 entered against it on account of this rejection. The judgment is reversed. Statement of Facts Julian La Bato bought a house at 157 Ponderosa Lan...
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Opinion Linda Paduano (Linda) appeals 1 from an order dated August 17, 1988, awarding attorneys’ fees and costs to Sabrina Paduano De Alba (Sabrina) in the amount of $10,000 pursuant to Civil Code 2 section 4370, subdivision (a). Factual and Procedural Statement On February 12, 1986, the Los Angeles County Superior Court, Northwest District branch, entered a judgment for dissolution of ...
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Opinion Plaintiff Frank Annino & Sons Construction, Inc., and its former attorney, Kendall K. Watson (appellants), appeal from an order *355 awarding sanctions under Code of Civil Procedure section 128.5 1 to Alain F. Dupuis, a former defendant in the action. We affirm. Issues The issues on appeal are: (1) Did the trial court have jurisdiction to entertai...
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215 Cal.App.3d 361 (1989) 263 Cal. Rptr. 694 In re ALBERT B. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. ALBERT B. et al., Defendants and Appellants. Docket No. F010939. Court of Appeals of California, Fifth District. November 7, 1989. *366 COUNSEL Nancy Marsh, Eleanor M.W. Youngsmith and Gregory M. Chappel,...
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Opinion The Department of Public Health of the City and County of San Francisco (the City) appeals from an order denying its petition to vacate an arbitration award in favor of Service Employees International Union, Local 790 (the Union) and confirming the award. The City contends that the arbitrator exceeded his power set forth in the arbitration agreement in awarding the grievant 225 da...
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Opinion Introduction Hock Investment Company, Inc. (Hock) appeals a judgment of dismissal following the trial court’s sustaining of a demurrer without leave to amend its complaint against the City and County of San Francisco (City) and various City officials. The complaint, which sought declaratory relief and was accompanied by a petition for writ of mandate, challenged a 1982 condom...
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Opinion Appellant Herman Brown appeals following revocation of his probation. He contends it was an abuse of discretion to admit a police officer’s hearsay testimony relating the findings of a chemist’s test on confiscated substances at a probation revocation proceeding. Statement of the Case and Facts On the basis of an outstanding parole violation, Officer Dennis Quinn arrested appellant ...
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Opinion Plaintiff landlord appeals from an adverse judgment in an unlawful detainer lawsuit. In Nourafchan v. Miner (1985) 169 Cal.App.3d 746 [215 Cal.Rptr. 450], a decision by this division, we stated that a tenant had “the right to offset the excess rent paid during the three-year statutory period (Code Civ. Proc., § 338) within which he could bring an action based...
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Opinion Defendant Donald Raymond Rhodes was charged with the murder of Robert Lee (Pen. Code, § 187; all further undesignated statutory references are to the Penal Code) and with the theft of his van (Veh. Code, § 10851). A jury found defendant guilty of second degree murder and auto theft. The trial court sentenced him to state prison for 15 years to life on the murder charge and for the upper...
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Opinion This is an appeal from orders of the juvenile court adjudicating appellant John B., a minor (date of birth June 11, 1973), a ward of the court (Welf. & Inst. Code, § 602) and committing him to the California Youth Authority. The juvenile court’s adjudication followed the minor’s admission that he committed voluntary manslaughter (Pen. Code, 1 § 192, subd. (a)). The mino...
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Opinion Stanley Anastasio, executor of the estate of Yolanda Anastasio, appeals from a judgment dismissing her cross-complaint against Smokehouse Broiler, Inc. (hereafter Smokehouse), for insurance proceeds recovered by Smokehouse for damage to a building it leased from Yolanda Anastasio. The sole issue on appeal is whether the court is precluded from dismissing an action pursuant to Code of Civi...
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Opinion San Francisco Rent Stabilization and Arbitration Board (Rent Board) and Margot Abenheim (Abenheim) appeal a decision granting a writ of administrative mandamus in favor of respondent Parkmerced Company (Parkmerced). They assert the court erred in concluding Abenheim was not entitled to the protection of the San Francisco Residential Rent Stabilization and Arbitration Ordinance (Re...
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Opinion Quincy Hankey appeals from the judgment entered following a court trial in which he was convicted of first degree murder with the use of a firearm. (Pen. Code, §§ 187, subd. (a), 12022.5.) He contends: “I. Appellant did not personally use a firearm within the meaning of Penal Code section 12022.5, and the two year enhancement of his sentence must be stricken. II. Appellant’s sentence of...
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Opinion Plaintiffs and appellants Louis Share, Herbert Weiser, and Marvin D. Uritz (collectively, homeowners) appeal a postjudgment order denying them their litigation attorney’s fees from defendant and respondent Casiano Bel-Air Homeowners Association (hereafter Association). For the reasons discussed below, the order denying attorney’s fees is reversed and the matter is remanded fo...
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Opinion Introduction This writ petition presents the question of whether respondent superior court must exclude evidence of a surreptitiously tape-recorded conversation between a minor and his parent in a police interrogation room. Under the circumstances chronicled here, we answer in the negative. Factual and Procedural Statement On February 1, 1989, the Los Angeles District Attorney fil...
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Opinion In this proceeding, we consider whether respondent superior court abused its discretion in denying petitioners’ motion to expunge a lis pendens. (Code Civ. Proc., § 409.1.) We hold that the court erred in its refusal to give due consideration to evidence that suggested that there was no merit in the complaint, and shall grant the petition for a writ of mandate. Facts Petitioners Cli...
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Opinion Plaintiff appeals from an order of dismissal1 following the court’s sustaining defendant’s demurrer to the first amended complaint for failure to state a cause of action against defendant under the doctrine of respondeat superior for the sexual molestation of plaintiff, a student at a school within defendant school district (hereafter District), by an employee of defendant. We affirm. Fact...
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I concur in the result reached by the majority in view of Williams v. Superior Court (1989) 49 Cal.3d 736 [263 Cal.Rptr. 503, 781 P.2d 537]. That case held, for purposes of determining whether a jury represents a cross-section of the community, the “community” is the judicial district. There is no evidence in the case before us Blacks are underrepresented on Norwalk Superior Court juries in relati...
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I respectfully dissent. I agree with the majority in its conclusion the trial court breached the attorney-client privilege by asking a defendant whether he had previously told his lawyer the same version of the facts he was testifying to on the stand. However, I see this error as fundamental and egregious. I find this error constituted a denial of the right to counsel and thus is reversible per se...
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Opinion Appellants Robert M. Peck, as trustee of the Robert M. Peck, M.D., Inc. Defined Benefit Pension Trust, and Ruth R. Peck (collectively referred to as Peck) appeal from an order quashing their levies of execution. We conclude the trial court erroneously quashed the levies of execution rather than resolving any issues of priority through the appropriate statutory scheme. The judgment is reve...
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Opinion Schaeffer Land Trust (hereafter, Schaeffer) appeals from an adverse judgment on its petition for a writ of mandate and complaint for injunctive relief. Schaeffer seeks to set aside two amendments to the general plan of the City of San Jose (hereafter, City) adopted by the San Jose City Council (hereafter, City Council). It primarily argues that the California *619 Env...
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Opinion Associated International Insurance Company (Associated) appeals from a judgment in favor of United States Elevator Corporation (USEC) on USEC’s complaint for damages and declaratory relief. Associated claims the trial court erred when it held that it was responsible to pay certain claims against USEC under a contract of excess insurance. In reversing, we will hold that ambiguities exist...
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Opinion These two petitioners—one in prison and one now on parole—challenge the refusal to retroactively apply a change in the amount of work or participation credits accorded to prisoners who are out-to-court. We conclude that the petitioners should have been given one-for-one credits during the periods in which they were out-to-court. The basis for our conclusion is that the equal protection ...
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Opinion Does former Probate Code section 631 1 afford absolute immunity to a bank which transfers funds in a decedent veteran’s deposit account to an alleged beneficiary proceeding under a former section 630 affidavit despite actual notice of the superior, statutory claim of the California Veterans Home (Home)? We conclude it does not and reverse the judgment. I. Factual B...
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Opinion This case originated as an eminent domain action taken against multiple defendants. Plaintiff appeals only from the judgment entered below as to one of those defendents. Issue Does section 1263.510 of the Code of Civil Procedure 1 require that an owner/defendant bear the burden of proof with regard to establishing the value of goodwill which has been lost as a result of property h...
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Opinion Gordon J. Ceresino appeals a judgment entered against him and in favor Of Fire Insurance Exchange and Farmers Insurance Group (collectively Farmers). The parties stipulated to the judgment to allow review of two pretrial rulings. Ceresino objects to the . court’s determination he is collaterally estopped from contending Farmers should indemnify him for a prior stipulated liability judgm...
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*827 Opinion The primary issue presented by this appeal is whether an insurance company has a duty to defend or indemnify an insured under a business liability policy in an action between the insured and its client for securities fraud. We hold the insurance company has no such duty and affirm the judgment. Background The Third Party Complaints In November 1986...
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Opinion This appeal arises from an action brought by Sally Hughes (hereafter Mrs. Hughes or respondent) and her estranged husband, Jurdy Hughes (hereafter Mr. Hughes), against Blue Cross of Northern California (hereafter Blue Cross) alleging several causes of action arising from the denial of insurance benefits for their son’s hospitalization. Upon petition of Blue Cross, the plaintiffs’ ...
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Opinion In this action to foreclose a mechanic’s lien, Sobeck and Associates, Inc. appeals from a judgment in favor of B & R Investments No. 24 and Bestor Engineers, Inc. 1 In the proceedings below, Sobeck, Inc. had amended its complaint under the fictitious names statute, Code of Civil Procedure section 474, to substitute a named defendant in place of a previously designated D...
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Opinion Larry Slater appeals from the judgment imposed following his plea of guilty to one count of sexual battery (Pen. Code, § 243.4, subd. *874 (a).) The trial court sentenced appellant to the midterm of three years in state prison. We affirm the judgment. In April of 1988, the People charged appellant with the forcible rape of a mentally handicapped 29-year-old neighbor. (Pen. Code, § 2...
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Opinion T. L. Enterprises, Inc., a California corporation, appeals from the judgment entered following trial to the court of its action for refund of property taxes against the County of Los Angeles. Appellant contends: “A. The damage incurred by the improvement was ‘sudden,’ if such a requirement exists. B. The legislative history of section 51, subdivision (c), requires the conclusion that th...
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Opinion Biophysica Foundation, Inc. (Biophysica), defendant and cross-complainant below, appeals from the judgment entered in favor of Roll Hancock Torrey Pines on Roll’s complaint, and from the judgment entered in favor of cross-defendants Roll and The Hartford Group on Biophysica’s cross-complaint, and from various related orders. Many issues are raised on appeal, the resolution of whic...
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Opinion Troy D. was declared a dependent child of the juvenile court under former section 300(a)1 of the Welfare and Institutions Code2 on *895the basis of a petition which alleged that he was bom under the influence of morphine, methamphetamine and amphetamine, and that his parents were unable to protect him. He was placed in his paternal grandmother’s custody. Troy’s mother, Kelly D. (Mother) a...
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Opinion In a personal injury action, two defendants, by separate petitions for writ of mandate, seek to compel the trial court to grant their *936 motions for summary judgment on the basis of a release signed by the plaintiff before his injury. Plaintiff is a professional automobile and race car mechanic and an experienced race car driver. On January 15, 1984, he compete...
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*943 Opinion This case raises the novel question of whether the three-month period of limitation, set out in Code of Civil Procedure section 580a, 1 applies to bar an action for a deficiency judgment brought beyond that period by a junior trust deed holder who has purchased the secured property at a foreclosure sale of a more senior trust deed. We hold that it does. Plaintiff Citrus State...
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Opinion This original proceeding in mandate presents the narrow “good-faith settlement” issue of whether a defendant tortfeasor’s waiver of litigation costs in settling with a plaintiff constitutes “consideration paid” for the settlement within the meaning of section 877 of the Code *954 of Civil Procedure, 1 so as to reduce plaintiff’s total recovery against nonse...
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*964 Opinion This appeal is a consolidation of two appeals filed by plaintiff/appellant Faye Coats (appellant). 1 One challenged the dismissal with prejudice of her first four causes of action following a judgment on the pleadings in favor of defendant/respondent K-Mart Corporation (K-Mart); the second challenged the granting of the motion for nonsuit made by responden...
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Opinion Real Party in Interest Jesse Willis (Willis) filed a complaint against petitioners Centinela Hospital Medical Center and Mahmoud Nouh, M.D. (jointly referred to herein as petitioners), seeking damages for the wrongful death of Ann Willis (decedent), whom Willis alleged to be his wife. (Code Civ. Proc., § 377.) 1 Petitioners moved for summary judgment *973 on the ground that Willis a...
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Opinion Alexander Munro, a minor by and through his guardians ad litem Pamela and Allen Munro, and Pamela and Allen Munro, individually, sued the Regents of the University of California, doing business as UCLA Medical Center, and Barbara Crandall for medical malpractice and intentional and negligent infliction of emotional distress. Plaintiffs appeal from summary judgment entered against them and...
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*1006 Opinion The City Council of the City of Palm Springs, together with the City of Palm Springs (collectively referred to as City), has appealed from a judgment directing that a writ of mandate issue to compel City to vacate and set aside the second amended participation agreement (the Second Agreement) between City and Wessman Development Company (the developer). Such judgment declared th...
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Opinion Following plaintiffs’ purchase of real property in San Jose, the Assessor of Santa Clara County revalued the property for tax purposes in an amount substantially higher than the purchase price. After the assessment appeals board denied plaintiffs’ application for changed assessment, plaintiffs filed this action to nullify the board’s decision. The superior court set aside the boar...
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Opinion Article I, section 1 of the California Constitution declares that privacy is among the people’s “inalienable rights.” The principal question in this appeal is whether a private employer violates that constitutional provision by asking all job applicants to consent to a urinalysis which tests for alcohol and other drugs as a condition of an offer of employment. The applicants have ...
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Opinion The individual owners of the separate parcels of land located in the Concord Park and Shop Center on Willow Pass Road in *1091 Concord (the Concord Center) appeal from a judgment in condemnation finding that their nonexclusive appurtenant easement rights condemned herein were of no value, and ordering nothing in compensation for the taking thereof by the Redevelopment...
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Opinion Introduction In this writ proceeding, we resolve the question of whether Corporations Code section 312, subdivision (b), forecloses petitioner, a former vice-president with real party in interest, from stating a cause of action for wrongful discharge premised upon an implied agreement of nontermination except for good cause. Interpreting the terms of the statute in accordance with wel...
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Opinion The People appeal from the trial court’s order granting defendant’s pretrial motion to suppress evidence pursuant to Penal Code section 1538.5 1 and dismissing the case in furtherance of justice pursuant to section 1385. The People contend (1) they were denied their right to present all relevant evidence at the motion to suppress evidence, and (2) the seizure *1116 of contraband fro...
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Opinion La Costa Land Company (La Costa) was a corporation engaged in the development and sale of residential realty. It developed and marketed a multi-unit project called La Costa South Unit No. 1. In June of 1968 La Costa caused to be recorded a “Declaration and Establishment of Protective Conditions and Restrictions” (the CC&Rs) which purported to establish restrictions of various kind...
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Opinion David Ronald Bermudez appeals from an order denying his petition under Penal Code section 851.8, subdivision (c),1 for a determination of his factual innocence of a 1972 rape charge. We find that appellant failed to establish good cause for waiving the time limitations applicable to such petitions, and affirm the denial. Facts In 1972,2 appellant was held to answer a charge that he had r...
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Opinion Grant Donald Church was convicted by jury of four counts of burglary (Pen. Code, 2 § 459), one count of grand theft (§ 487, subd. 1) and three counts of petty theft (§ 484). As to each count of petty theft, the jury found true allegations that Church had been previously convicted of and imprisoned for burglary (§ 666). 3 Church was sentenced to a total term of three years in priso...
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215 Cal.App.3d 1163 (1989) 264 Cal. Rptr. 17 FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff and Appellant, v. CLAYTON L. MILLER, Defendant and Respondent. Docket No. D008990. Court of Appeals of California, Fourth District, Division One. October 26, 1989. *1168 COUNSEL Peter C. Holzer and Thomas Allan Shaw for Plaintiff and Appellant. Duke, Gerstel, Shearer & Bregante, Richard D. Bregan...
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Opinion A jury convicted the defendant of second degree murder of her husband in August 1986. (Pen. Code, §§ 187, 189.) 2 The jury also found that the defendant personally used a firearm. (§ 12022.5.) Defendant was sentenced to 15 years to life, and the firearm use enhancement was stayed. Defendant contends that the trial court erred: (1) in excluding expert testimony that the defendant was...
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Opinion Pursuant to California Rules of Court, rule 62 et seq., we accepted a transfer of this case from the Appellate Department of the Riverside Superior Court. In this appeal, we are asked for the first time to decide whether the surreptitious videotaping of sexual activity violates California’s privacy statutes, Penal Code sections 630 and 632. The trial court overruled defendant’s demurrer a...
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Opinion . . .* Andre Carpiaux was discharged from his job as an instructor at the East Bay Skills Center, administered by the Peralta Community College District (District). . . .* After unsuccessfully pursuing his various administrative remedies, Carpiaux filed in the superior court a complaint and a petition for writ of mandate, seeking back payment of wages and reinstatement. Carpiaux, over the ...
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215 Cal.App.3d 1204 (1989) 263 Cal. Rptr. 905 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL FRANCIS GIBBONS, Defendant and Appellant. Docket No. E006489. Court of Appeals of California, Fourth District, Division Two. November 17, 1989. *1206 COUNSEL John C. Bush for Defendant and Appellant. Grover C. Trask II, District Attorney, and Leonard H. Mandel, Deputy District Attorney, for Plaintiff an...
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215 Cal.App.3d 1220 (1989) 264 Cal. Rptr. 208 ANDRE CARPIAUX, Plaintiff and Respondent, v. PERALTA COMMUNITY COLLEGE DISTRICT, Defendant and Appellant. Docket No. A038271. Court of Appeals of California, First District, Division One. November 20, 1989. *1222 COUNSEL Jon A. Hudak for Defendant and Appellant. Gregor D. Guy-Smith for Plaintiff and Respondent. [Opinion certified for partial publicati...
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215 Cal.App.3d 1226 (1989) 264 Cal. Rptr. 60 THE PEOPLE, Plaintiff and Respondent, v. DAVID RONALD BERMUDEZ, Defendant and Appellant. Docket No. A044409. Court of Appeals of California, First District, Division Three. November 20, 1989. *1227 COUNSEL Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Ch...
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215 Cal.App.3d 1257 (1989) 264 Cal. Rptr. 210 In re the Marriage of RONNA H. and ALLAN M. BERLAND. RONNA H. BERLAND, Appellant, v. ALLAN M. BERLAND, Respondent. Docket No. A043835. Court of Appeals of California, First District, Division Five. November 20, 1989. *1260 COUNSEL Hadden Roth and Roth, Thorner & Curtin for Appellant. Paul Camera, Camera & Colyer, Richard Sherman and DeGoff &am...
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Opinion In this case we hold that the trial court, in granting a motion to modify a Richmond spousal support order, possesses broad discretion not only as to how long to extend the order, but also as to the amount of spousal support ordered to be paid during the extension. A Richmond order is normally issued with the expectation that if the supported spouse exercises reasonable diligence, he or s...
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215 Cal.App.3d 1267 (1989) 266 Cal. Rptr. 352 In re DANIELLE M. et al., Persons Coming Under the Juvenile Court Law. CITY AND COUNTY OF SAN FRANCISCO DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DURRETT M. et al., Defendants and Appellants. Docket No. A042926. Court of Appeals of California, First District, Division Five. November 21, 1989. *1268 COUNSEL Patricia L. Watkins and Sus...
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Opinion We publish our opinion in this case to once again bring to the attention of the Legislature once again the need to change the process for appellate review of juvenile court determinations, especially in dependency proceedings. The present method of review by appeal fails to protect the rights of the parties fully and imposes an unnecessary additional workload on already overburdened Court...
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Opinion In this action for medical malpractice, plaintiff Doretha McAdory appeals from “the judgment.” That judgment awarded Ms. McAdory $218,400 against defendant Dr. William C. Rogers, M.D. Ms. McAdory contends that the trial court improperly applied the $250,000 cap in noneconomic damages embodied in Civil Code section 3333.2 1 in reducing the jury’s award. Dr. Rogers initia...
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Opinion Jimmie Johnson appeals from an order dismissing his petition filed under Probate Code section 17200. The dismissal order was entered on January 6, 1989. We treat the order as a judgment that is appealable pursuant to Probate Code section 17207. Factual Background Vincent Miranda and George Tate (respondent herein) each created “Living Trusts” on January 28, 1983. Each trust was iden...
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Opinion This appeal tenders the question whether family support investigators employed by the District Attorney of the County of Sutter are entitled to enhanced retirement benefits (Gov. Code, § 21251.13) 1 as “county peace officers” under section 20021.5 when his practice and policy is to enforce parental support obligations primarily by civil rather than criminal action. ...
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Opinion This is a case in which the defendant’s sole challenge is to the application of one of the recidivist statutes. The challenge relates to whether one of his prior offenses satisfies a criterial predicate for the imposition of a life term in prison without possibility of parole for 20 years under Penal Code section 667.7 (subsequent undesignated section references are to this code)....
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Opinion Business and Professions Code section 6146 1 enacted as a part of the Medical Injury Compensation Reform Act of 1975 (MICRA) limits the amount of fees an attorney may obtain in a medical malpractice action when representing a party on a contingency fee basis. If periodic payments are awarded to the plaintiff under section 667.7 of the Code of Civil Procedure, section 64...
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Opinion S. L. Rey, Inc. (Rey), has sued Michael J. La Paglia (La Paglia) to impose a constructive trust on real property purchased with funds which Rey alleges La Paglia wrongfully withheld from Rey’s predecessor in interest. In these original proceedings, La Paglia seeks a peremptory writ of mandate after the superior court denied his motion to expunge a notice of lis pendens filed by Re...
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Opinion After denial of his pretrial motion to suppress evidence pursuant to Penal Code section 1538.51 and exhaustion of his pretrial remedies of review of that denial, Robert Samuel Hallman pleaded guilty of driving under the influence of intoxicating beverages (Veh. Code, § 23152(b)). He then unsuccessfully appealed to the appellate department of the San Diego Superior Court arguing his pretri...
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Opinion In a companion case decided today (People v. Hallman, ante, p. 1330 [264 Cal.Rptr. 215]), this court concluded that “contrary to the procedure adopted in Wilder v. Superior Court [(1979)] 92 Cal.App.3d 90, . . . trial court[s] can, by local rule, require the moving party in [Penal Code] section 1538.5 motions to set forth with specificity the grounds and theories to support the ...
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Opinion Cancún Homeowners Association, Inc., appeals a summary judgment granted in favor of the City of San Juan Capistrano (the City). Specifically, Cancún objects to the trial court’s conclusion that the City is immune from prosecution for negligence in the issuance of building and grading permits. I In 1986 Cancún filed a complaint for damages suffered by its condominium unit owners from...
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Opinion American Bankers Insurance Company of Florida (America), for itself and its agents, appeals from an order denying its motion to set aside summary judgment and to exonerate its bail bond. 1 Richard Powe, defendant in this matter, was released on a $4,000 bail bond posted by American and Albert Ramirez Bail Bonds. Powe pleaded guilty and a probation and sentencing hearing was set for ...
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Opinion Appellant Adamson Gbadebo-Soda appeals from a judgment entered on a jury verdict finding him guilty of two counts of *1373 failure to appear (counts II and III; Pen. Code, § 1320, subd. (b)). 1 The jury failed to agree on a third count of escape (count I). Procedural Facts On August 26, 1987, an information was filed charging appellant with escape...
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Opinion This appeal is taken from a judgment entered in favor of plaintiff and respondent Zanker Development Co. (Zanker) and against defendants and appellants (Cogito), Ching Fong Investment U.S.A. Corp. (Ching Fong) and Su Shiong Huang (Huang). The judgment was against Cogito for breach of a written lease agreement and against Ching Fong and Huang for breach of their written guarantees ...
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215 Cal.App.3d 1384 (1989) 263 Cal. Rptr. 811 In re JESSE C., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ANTONIO R., SR., Defendant and Appellant. Docket No. H005209. Court of Appeals of California, Sixth District. October 11, 1989. *1386 COUNSEL James W. Haworth and Heather Hyde for Defendant and Appellant. Steven ...
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Opinion Antonio R. (father) appeals from a dispositional order of the juvenile court placing his son, Jesse C., in foster care (Welf. & Inst. Code, § 300, subd. (a)) and denying reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(2). He contends 1) there was insufficient evidence to support the order, and 2) the trial court committed reversible error by...
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215 Cal.App.3d 1390 (1989) 264 Cal. Rptr. 80 Conservator of the Person and Estate of FRANCIS STARR. JOHN TRUITT et al., as Conservators, etc., Petitioners and Appellants, v. LISBETH HIBBARD et al., Objectors and Respondents. Docket No. A042722. Court of Appeals of California, First District, Division One. November 22, 1989. *1392 COUNSEL Priscilla Camp for Petitioners and Appellants. Jerome Marks...
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Opinion This appeal presents a narrow jurisdictional question of the power of the superior court, sitting in probate, to set aside a deed executed by a conservator before the conservatee’s death. The facts and procedural history relevant to this question can be briefly stated. Francis Starr was a widower, residing in Berkeley, California, who experienced declining health in the years after the dea...
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*1413Opinion The People, petitioner in this proceeding, filed an amended petition for forfeiture in respondent superior court, alleging that monies paid to certain lawyers and law firms (defense attorneys) by their respective clients were traceable to exchanges of controlled substances, and were thus subject to forfeiture under the provisions of Health and Safety Code section 11470 et seq. Respon...
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Opinion The superior court found appellant Lani Castro Cruz (Cruz) was the sole known heir for and entitled to possession of the whole of an estate which had escheated to the state. In this appeal Cruz challenges the portion of the court’s order prohibiting immediate distribution of the estate. She asserts she is entitled to immediate distribution and the state agrees. We also find delaying the...
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Opinion Here, we consider whether the covenants, conditions and restrictions (CC&Rs) of a publicly subsidized condominium project validly can require owner occupancy and forbid the leasing of units. Michael Shawn McKenna appeals from a judgment against him on the City of Oceanside’s (City) suit for injunctive and declaratory relief seeking to enforce such restrictions at the Sea Village c...
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Opinion Petitioners State Farm Fire and Casualty Company and State Farm adjuster Don Dennison (together State Farm) seek mandate directing the superior court to vacate its ruling denying State Farm’s motion for summary judgment on Aegea Homeowners Association, Inc.’s (Aegea) complaint for breach of the duty of good faith and fair dealing, breach of statutory duties and breach of contract....
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Opinion Lon Albert Sullivan appeals his convictions for manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possessing methamphetamine for sale (Health & Saf. Code, § 11378), and driving without a license (Veh. Code, § 14601.1, subd. (a)). On appeal, he contends the court committed instructional and...
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Opinion State Farm Fire and Casualty Company, State Farm Mutual Automobile Insurance Company and Karen Parker (referred to collectively henceforth as State Farm) are defendants below in Riverside County Superior Court case No. Indio 45204, Patten, et al. v. State Farm Fire and Casualty Company, et al. In that action, State Farm moved for summary adjudication of certain issues pertaining to its dut...
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Opinion Factual and Procedural Background Dr. David B. Kaye is an ophthalmologist with an emphasis on refractive and cataract surgery. He began practicing in Fresno in 1980. Between *1480 October 1982 and April 1984 Saint Agnes Medical Center monitored all Dr. Kaye’s cases, preoperatively, intraoperatively, and postoperatively. Saint Agnes Medical Center informed Dr. Kaye that the restricti...
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Opinion In her complaint plaintiff and petitioner Linda Denari contends that while being booked into the Kern County jail on July 21, 1985, the authorities, using excessive force, broke her arm. She asserts claims for negligence, intentional tort and violation of 42 United States Code section 1983, the federal civil rights cause of action. Named defendants include the County of Kern, Rita Prunt...
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Opinion Introduction Defendants California Health and Welfare Agency, James Stockdale, Acting Secretary of the Agency, State Department of Finance, and Kenneth Kizer, Director of the Department, appeal the issuance of a preliminary injunction by the Alameda County Superior Court, enjoining appellants “from denying Medi-Cal coverage of root canal treatments and laboratory processed cr...
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Opinion This appeal by King Cavalier (Cavalier), Lehman Brothers Kuhn Loeb, Inc. (Lehman Brothers), together with Shearson Lehman/American Express, Inc., and Shearson Lehman Brothers, Inc., the successor corporations to Lehman Brothers, is from a judgment entered on a jury verdict finding that appellants had breached their fiduciary duties to respondents Elmore Duffy (Duffy), Frank Ghilar...
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Opinion In a civil forfeiture proceeding brought by the People pursuant to Health and Safety Code section 11470 et seq.,1 the trial court rendered a judgment which (1) declared $6,500 in United States Currency forfeited to the People, and (2) awarded the People the sum of $6,500 against appellant Robert D’Ambrosia. The judgment indicated that civil liability was imposed upon appellant because the...
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Opinion This is an appeal from the trial court’s decision awarding costs and attorney fees to respondents in an action arising from the sale of real estate. I. Background Facts In March 1982 plaintiffs Gary and Kathy Pirkig (respondents) purchased a home in Benicia, California, from James Cook and Joseph Eystad (sellers). Respondents were represented in the transaction by defend...
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Opinion Do Vehicle Code sections1 23202 and 23206, which prohibit diversion “in any” driving under the influence case, make an exception for a developmentally disabled defendant? Our answer is no. Procedural and Factual Background On October 22, 1986, defendant was charged with misdemeanor violations of section 23152, subdivision (a), driving under the influence of alcohol, and section 23152, sub...
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Opinion Bruce Wight appeals from order of October 18, 1988, denying his motion to quash writ of execution for unpaid child support and interest thereon in the sum of $30,596.40, based on a 1970 interlocutory judgment of dissolution of marriage which ordered him to pay child support of $25 per week beginning March 14, 1970. 1 Factual Background Bruce and Sharon Wight were...
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Opinion In this case we consider whether the eviction service provided by Landlords Professional Services (LPS) involved the unauthorized practice of law. I Facts and Procedural History In 1982 the Orange County Apartment News carried an advertisement for the eviction services provided by LPS. The ad stated “Evictions as low as $65” and showed the picture of a purposeful an...
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Opinion This is an appeal from an order of dismissal after defendant’s motion for summary judgment was granted. On April 9, 1985, plaintiff William Nathan Brooks, a minor, by and through his guardian ad litem, Elizabeth Brooks, filed a complaint alleging causes of action for personal injury caused by motor vehicle, premises liability, general negligence and products liability. P...
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Opinion Statement of the Case Appellant Oildale Mutual Water Company (Oildale) filed a complaint against respondent North of the River Municipal Water District (District) and the individual members of District’s board of directors alleging that District was overcharging Oildale for the water that District was providing under a water service agreement. The complaint further sought a declaratio...
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Opinion Plaintiff appeals from a judgment for defendants in an action for declaratory relief under Code of Civil Procedure section 1060. The trial court found that pursuant to Civil Code section 1654, a typewritten provision prohibiting prepayment of an all-inclusive promissory note was superseded by a printed provision limiting the borrower’s right of prepayment to the extent to which pr...
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Opinion This case involves questions of corporate successor liability. Appellant Cooper Laboratories, Inc. (Cooper) appeals from an order of the San Francisco Superior Court holding it potentially responsible, as successor in interest, for all damages allegedly incurred by Sandra and Michael Phillips (Phillipses) as the result of Sandra’s exposure to diethylstilbestrol (DES) in úter...
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