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All Reporters → cal-app-4th → Volume 17

Opinions in cal-app-4th Volume 17

Opinion Aram B. James, an attorney employed by a county public defender’s office, sued a newspaper and one of its employees for libel. The employee, acting as a bylined columnist for the newspaper, had written, and the newspaper had printed, a column which named James in the context of a discussion of asserted violations of law by defense attorneys in criminal cases involving child victim...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 4 OPINION Aram B. James, an attorney employed by a county public defender's office, sued a newspaper and one of its ...
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Opinion North Coast Business Park (North Coast) appeals from the judgment entered after the trial court granted the motion for summary judgment filed by Erreca, Inc. (Erreca). Erreca’s motion was based on the statute of limitations. The trial court concluded (1) there was no triable issue of fact as to when North Coast first had notice of the defective condition; and (2) the statute of li...
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Opinion Both plaintiff-homeowners and defendant-contractors appeal from a judgment in favor of plaintiffs Charles and Betty Shaffer for damages based on theories of negligence and breach of warranty arising from the construction of a custom home. A detailed review of the lengthy record in this case is unnecessary for the purposes of the issues raised in this appeal. It is sufficient to no...
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Opinion Oryx Energy Company (hereinafter Oryx) was the lessee and the United States of America was the lessor of three mineral leases during the tax years 1983-1984, 1985-1986 and 1986-1987. 1 The leases granted to Oryx the right to take oil and gas from the federally owned land, and required Oryx to pay to the United States government a rent or “royalty” of approximately 13 pe...
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*67 Opinion Plaintiffs appeal from a judgment after a court trial in favor of defendant Great Southwest Insurance Company. The sole issue is whether a third party claim, resulting from an auto accident, is covered under a business liability policy which purports to exclude coverage for automobile-related losses. We conclude that the policy does not provide coverage for the losses...
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Opinion Permea, Inc., and its subsidiary, Zeks Air Dryer Corporation (collectively Zeks) appeal after a jury awarded plaintiff Anthony J. Roslan approximately $563,000 in his action for personal injuries. One third of the award was for noneconomic damages. The primary problem with this case is *112 that the trial court did not allow the jury to assess the comparative fault of two defendants w...
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Opinion On July 29, 1987, plaintiff and respondent, Arciero Ranches (Arciero) filed a verified complaint alleging that defendants and appellants Amador Meza, Raquel Meza, and Does 1 through 100 had willfully trespassed, and would continue to trespass, on a certain road (the farm road) located on the Brothers Ranch in Kern County and owned by Arciero. Arciero sought, inter alia, a permanen...
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Opinion Petitioner Richard M. Newton (applicant) seeks review of the decision of respondent Workers’ Compensation Appeals Board (Board) that his claim for workers’ compensation benefits for a psychiatric injury allegedly sustained due to problems encountered while participating in a vocational rehabilitation (VR) program implemented by respondent employer Cal-Wood Door/Weyerhaeuser Claims...
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17 Cal.App.4th 158 (1993) 21 Cal. Rptr.2d 245 LEMONIA T. RANDAS, Plaintiff and Appellant, v. YMCA OF METROPOLITAN LOS ANGELES, Defendant and Respondent. Docket No. B067811. Court of Appeals of California, Second District, Division Seven. July 14, 1993. *160 COUNSEL Paul A. Connolly for Plaintiff and Appellant. Lynberg & Watkins and Stephen M. Harber for Defendant and Respondent. OPINION WOODS...
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Opinion In this personal injury action, plaintiff-appellant appeals from an adverse summary judgment and contends the release she signed was invalid because against public interest (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]) and because she couldn’t read it. We affirm the judgment. Procedural and Factual Background The facts a...
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Opinion In this case there is no evidence the defendant plastic surgeon acted below the standard of care for plastic surgeons or that he acted in an intentional or outrageous manner. Accordingly we reverse a $400,000 judgment entered against him for failing to perform promised breast surgery on the plaintiff. Factual and Procedural Background I Plaintiff’s Medical History Plaintiff an...
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Opinion Charged with the willful, deliberate, premeditated attempted murder (Pen. Code, 1 §§ 664/187) of his 15-year-old son, appellant was convicted of assault with a firearm (§ 245, subd. (a)(2)). The jury found true gun use (§ 12022.5) and great bodily injury (§ 12022.7) allegations. Prior felony conviction (§ 667, subd. (a)) and habitual offender (§ 667.7) allegations were bifurcated and,...
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Opinion On February 18, 1992, defendant Charles Robert Beck was charged by information with nine counts of grand theft (Pen. Code, §§ 484, 487, subd. T, counts 1-9), one count of securities fraud (Corp. Code, § 25401; count 10), and two counts of tax evasion (Rev. & Tax. Code, § 19406; counts 11-12). The information further alleged that appellant was ineligible for probation because the l...
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*232 Opinion Julie Ann Snow appeals the judgment denying her petition for a writ of mandate ordering the Department of Motor Vehicles (Department) to delete from its files references to her driving with excessive blood alcohol and suspension of her driver’s license. On July 21, 1991, California Highway Patrol Officer Eric Flynn arrested Snow for driving under the influence o...
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*238 Opinion At the close of evidence in a bench trial, plaintiffs Jan F. Wilson and Redondo Investments, Inc. (Redondo), a Texas corporation wholly owned by Wilson’s husband, George Cl eland, moved for judgment on the pleadings. Defendants, S.L. Rey, Inc., San Ysidro Associates, III (SYA), and Juan Orendain moved for judgment under Code of Civil Procedure section 631.8. The tria...
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Opinion Factual And Procedural Background 1 1. The Report of Child Abuse On the morning of May 9, 1989, eight-year-old Alicia W. complained of pain when she went to the bathroom. Her parents brought her to the Navy medical unit by 8:30 a.m. The family was then escorted to Children’s Hospital where staff determined Alicia had been raped and sodomized, and filed a report under the Child A...
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Opinion Defendant and appellant Steven A. Wilson was convicted by a jury of two counts of attempted voluntary manslaughter and two counts of assault with a firearm. As to each count, the jury found the allegation that appellant personally used a firearm within the meaning of Penal Code section 12022.2, subdivision (a) to be true. On this appeal, appellant challenges the admission of two p...
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Opinion In this action we consider whether the complaint filed by plaintiffs Mathew Zaherí Corporation, doing business as Hayward Mitsubishi, and Mathew Zaherí was properly dismissed for failure to exhaust their *291 administrative remedy. We conclude it was and affirm the judgment in favor of defendant Mitsubishi Motor Sales of America, Inc. Procedural History 1 On July 12, 1991, plain...
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Opinion Defendants appeal from an order denying their motion for attorney fees. They contend they are entitled to ah award of attorney fees after prevailing at trial, pursuant to the terms of a contract. We reverse the order of the trial court and remand the matter for determination of a reasonable award of attorney fees. Background Plaintiffs filed a complaint asserting ca...
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Opinion Tracy Reed pled guilty to inmate battery on a correctional officer. (Pen. Code, § 4501.5; all further section references are to that code.) Sentenced to a full consecutive lower term of two years over his objection that only one-third the middle term of three years (i.e., one year) was authorized (§ 1170.1, subd. (c)), Reed appeals the sentence. We ¿firm. Background Reed...
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Opinion In this appeal we consider an employee’s entitlement to attorney fees under Labor Code section 3856, subdivision (b), and *313 the interplay of that statute with Code of Civil Procedure section 1141.21. The first statute authorizes the recovery of litigation expenses and attorney fees when an injured employee alone prosecutes an action against a third party tortfeasor while the second...
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Opinion Plaintiff Dorothy Bush sustained personal injuries when she slipped and fell while dancing. She sued the organization sponsoring the *325dance and the public agency owning the dance hall. The trial court granted summary judgment against plaintiff based upon her assumption of the risk. We shall reverse. Factual and Procedural History Plaintiff filed a complaint for personal injury against ...
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Opinion Michael Berry appeals from the judgment entered upon his conviction by jury of first degree murder, two counts of attempted murder, and one count each of second degree robbery and first degree burglary, with findings the murder was committed with personal use of a firearm and during the commission of the robbery and burglary. (Pen. Code, §§ 187, 664/187, 211,459,12022.5,190.2, subd. (a)...
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Opinion Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person’s sex. In this writ proceeding, we hold that sexual harassment occurs when an employer creates a h...
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Opinion Appellant Felipe Evangelista Sixto was sentenced to die for the capital murder of five-year-old Jorge Garza. His convictions were overturned due to the ineffectiveness of his trial attorneys. Upon retrial, with representation by new counsel, he was again convicted but sentenced to life imprisonment without the possibility of parole. In the published portion of this opinion, we will cons...
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17 Cal.App.4th 405 (1993) 21 Cal. Rptr.2d 193 THE PEOPLE, Plaintiff and Respondent, v. DONYELL DEVONE SCOTT, Defendant and Appellant. Docket No. B065317. Court of Appeals of California, Second District, Division Seven. July 21, 1993. *407 COUNSEL Joseph Balistocky, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief ...
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Opinion Defendants Los Angeles Unified School District (LAUSD) and seven individual members of the Los Angeles City Board of Education (the Board) 1 appeal from a preliminary injunction enjoining them from using tiie work time of public employees and “public funds or other public resources to adopt, prepare, print, distribute, or disseminate a promotion or advocacy position in ...
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Opinion Plaintiffs appeal from summary judgment in favor of defendants on plaintiffs’ complaint for $200 million damages alleging various contract and tort theories. 1 The underlying dispute arises out of a concession agreement with the City of Los Angeles for operation of an equestrian facility on City-owned land in Griffith Park. In 1988, plaintiffs lost their interest in the...
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Opinion Robin R. Moerman alleged the state had damaged his property by relocating tule elk which were destroying his fences and *455 eating the forage intended for his livestock. The trial court granted the state’s motion for summary judgment. On appeal, Moerman contends the trial court erred, and that as a matter of law, there has been a taking of his property. We find ...
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Opinion Plaintiff Anthony Giannuzzi seeks damages for injuries he suffered while riding his motorcycle on a trail within the Carnegie State Vehicular Recreation Park which is owned and operated by defendant State of California. According to plaintiff’s first amended complaint, on Christmas Eve of 1990 he was riding his motorcycle on “an established dirt trail leading over the top of ... a...
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Opinion In this “Royal Globe” bad faith action, Truck Insurance Exchange (Truck), the defendant below, appeals from the order of the trial court (1) granting the motion of the plaintiff, Jerome T. Stewart (Stewart), for a new trial on the issue of punitive damages, which had previously been eliminated by an order of nonsuit, and (2) denying Truck’s motion for a new trial as to the issue of it...
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Opinion In these consolidated appeals, we are asked to construe two Los Angeles County Civil Service Rules. These rules provide procedures for “progressive discipline,” and ultimately for the discharge of county *491 employees who do not perform satisfactorily in their employment and who fail to improve their performance after warnings. 1 The real parties in inte...
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Opinion This appeal by Morgan Stanley Mortgage Capital, Inc. (Morgan Stanley), involves one component of the immense and complex *508 litigation over the rehabilitation of Executive Life Insurance Company (ELIC). While separate litigation goes forward to determine other important issues such as creditor priorities, 1 this action raises the issue of whether the tria...
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17 Cal.App.4th 524 (1993) 21 Cal. Rptr.2d 397 THE PEOPLE, Plaintiff and Appellant, v. VICTOR MANUEL LIMON, Defendant and Respondent. Docket No. H010016. Court of Appeals of California, Sixth District. June 28, 1993. *528 COUNSEL George W. Kennedy, District Attorney, and Jay P. Dufrechou, Deputy District Attorney, for Plaintiff and Appellant. Stuart Rappaport, Public Defender, and Stephen Elrick, ...
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Opinion An information charged defendant Victor Manuel Limón with possessing heroin for sale (count one; Health & Saf. Code, § 11351) and possessing cocaine for sale (count two; Health & Saf. Code, § 11351). Defendant made an unsuccessful suppression motion at his *529preliminary hearing. He renewed the suppression motion in the superior court based on the transcript of the preliminary hearing an...
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Opinion In this insurance coverage dispute, State Farm Mutual Automobile Insurance Company (State Farm) appeals from a judgment in favor of Viking Insurance Company (Viking). The issue on appeal is whether under California law an underinsurance carrier, faced with claims from several insureds arising from one accident, can offset from the amount it owes to one of these insureds the amount...
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*558 Opinion Michael James Siravo was convicted by a jury of sexually assaulting his wife’s housemate. The primary issue on appeal is whether the trial court properly compelled Mrs. Siravo’s testimony after she asserted the marital privilege. (Evid. Code, § 970.) We conclude that there is no marital testimonial privilege here because the victim was a “cohabitant” of appellant’s spouse. (Evid....
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Opinion Following a jury trial, defendant Kevin Lamar Lipscomb was convicted of one count of first degree robbery (Pen. Code, §§ 211-212.5); 1 one count of false imprisonment by means of violence (§§ 236-237); one count of assault with a firearm (§ 245, subd. (a)(2)); and related firearm use enhancements (§ 12022.5). On appeal, defendant contends, inter alia, that his assault conviction must ...
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Opinion The San Jacinto Unified School District (School District) appeals from the judgment entered in favor of California Ranch Homes Development Company of Hemet (CRH) on CRH’s petition for writ of mandate. The judgment required the School District to refund to CRH school impact fees totaling $73,143.20 plus interest. On appeal, the School District contends the court erred in determining that...
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Opinion We review a decision of the Workers’ Compensation Appeals Board (Board) after reconsideration in which the Board ordered payment of $7,060 to applicant’s landlord, lien claimant Kenneth A. Hilton, from applicant’s workers’ compensation award of $12,000. Applicant has petitioned for a writ of review, contending that the order violated Labor Code sections 4901 and 4903 and that the Board fa...
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*596 Opinion Defendant, Donald E. Peel, was charged with attempted murder (Pen. Code, §§ 664, 187), 1 possession or explosion of a destructive device (§ 12303.3), assault with a deadly weapon (§ 245, subd. (a)(1)), and possession of materials with the intent to make a destructive device (§ 12312). It was also alleged he personally used a firearm in the commission of the offenses charged in ...
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Opinion Anita Marie Sutherland (defendant) appeals from the judgment after a jury convicted her of forgery (Pen. Code, § 470), burglary (Pen. Code, § 459), and soliciting a minor to commit a felony (Pen. Code, § dSSj). 1 She argues the judgment must be reversed because the court failed to give proper jury instructions, because the prosecutor committed prejudicial misconduct, and because she w...
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Opinion This case involves a challenge to the constitutionality of portions of Water Code section 13396.5 1 and of the implementing regulation (Cal. Code Regs., tit. 23, § 2236, hereafter regulation 2236) enacted by respondent State Water Resources Control Board (the Board). Appellants—two water agencies (Central Delta Water Agency and South Delta Water Agency, hereafter the ag...
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Opinion The San Francisco Bay Guardian, Inc., and Bruce B. Brugmann, the Bay Guardian’s publisher (petitioners), seek a writ to require respondent court to grant their motion for summary judgment. We issue the writ for the reasons explained below. Facts In the March 27, 1991, issue of the paper, the Bay Guardian included a parody of itself lampooning various issues, public officials and pri...
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Opinion Samuel D. Dakin appeals from a judgment of dismissal of a petition for writ of mandate, which challenged the approval of a timber *684 harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition under the authority of Public Resources Code 1 section 21167.4, for failure to request...
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Opinion Ultramar, Inc., and South Coast Air Quality Management District (AQMD) each appeal from portions of a judgment. Therein, *696 the trial court upheld AQMD’s power to issue a regulation challenged by Ultramar, but found that AQMD had violated a provision of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; hereafter CEQA) relating to a 30-d...
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Opinion Defendants Mary A. Carlson, the City Clerk of Dana Point, and the City of Dana Point appeal from a judgment ordering Carlson to certify a referendum petition to the city council that challenges the council’s passage of a resolution adopting a general plan and a local coastal program land use plan amendment (hereafter the plan). The primary issue is whether the referendum is invali...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 744 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 745 OPINION Ronald Lesinski and Ruth Lesinski, objectors and appellants, appeal from an order granting the appointme...
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Opinion Ronald Lesinski and Ruth Lesinski, objectors and appellants, appeal from an order granting the appointment of a provisional director to the board of ANNRHON, Inc., pursuant to Corporations Code section 308. On July 21, 1992, a hearing was held on the matter. On July 22, 1992, the court filed an order granting the petition and appointing Gene Deetz as the provisional director. On July 23, 1...
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Opinion Pierre B. Madison appeals from an order imposing a previously suspended four-year prison term after appellant’s exclusion from the California Rehabilitation Center. He contends the trial court erred in calculating his credits for time served. *786 Statement of the Case Appellant was committed to the California Rehabilitation Center (CRC) after pleading guilty to...
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Opinion This appeal presents the question whether changed circumstances trigger a ministerial duty requiring a city to review and reevaluate a previously established speed limit on its streets. The trial court ruled there is such a ministerial duty and issued a writ of mandate directing the defendant City of Sacramento (City) to conduct engineering and traffic surveys of a segment of H St...
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17 Cal.App.4th 800 (1993) 21 Cal. Rptr.2d 633 In re VANESSA W., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. GEISELLE C., Defendant and Appellant. Docket No. D018520. Court of Appeals of California, Fourth District, Division One. August 2, 1993. *801 COUNSEL D. Curtis Webster, under appointment by the Court of Appeal, f...
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*802Opinion C. appeals a judgment of the juvenile court terminating her parental rights under Welfare and Institutions Code2 section 366.26 as to her minor daughter Vanessa W. Geiselle contends: (1) the court erred in finding she had not maintained frequent contact with Vanessa and continuing the relationship would not benefit Vanessa; (2) the court erred in failing to order visitation for Geisell...
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Opinion Once again we address a question which comes before us all too frequently—the right of a litigant to a jury after failing to post fees in a timely manner. We start with an admonition from Estate of Meeker (1993) 13 Cal.App.4th 1099, 1106 [16 Cal.Rptr.2d 825]: “[W]e need to remember that all of us are here to serve the public and that this cannot be done when judges are inundated with ...
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Opinion Following trial by jury, appellant Ruben Contreras was found guilty of first degree murder with special circumstances (murder *816 during commission of robbery), attempted murder, conspiracy to commit robbery and two counts of robbery. The jury also found that Contreras personally used a deadly and dangerous weapon, a knife, in committing the offenses, and that he personally inflicted...
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17 Cal.App.4th 825 (1993) 21 Cal. Rptr.2d 503 In re TANYA H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDERN'S SERVICES, Plaintiff, v. TONY B., SR., Defendant and Appellant; THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Real Parties in Interest and Respondents. Docket No. B071061. Court of Appeals of California, Second District, Division One. Augu...
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Opinion In dependency proceedings, an indigent parent is entitled to court-appointed counsel who “shall continue to represent the parent . . . unless relieved by the court upon the substitution of other counsel or for cause. . . (Welf. & Inst. Code, § 317, subd. (d).)1 Without reference to this statute, the Los Angeles Juvenile Dependency Court adopted a “policy memorandum” providing that attorne...
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Opinion In a dissolution, husband (David) claimed community interest in a corporation formed during the marriage, Gas Turbine Services Corporation (GTS), whose stock had been issued to wife (Barbara). In bifurcated proceedings the court found: (1) Barbara was the title holder to the GTS stock; 1 (2) judicial estoppel did not bar David from asserting community interest in GTS; (3) the increase...
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Opinion Peter and Adelia Pozzuoli (Insureds) appeal from a judgment in favor of Truck Insurance Exchange (Insurer). Insureds claim language in a “pollution exclusion” clause is ambiguous, and should be construed in *858 favor of Insureds. 1 The trial court found the language unambiguous, and granted summary judgment in favor of Insurer. We affirm. Background In December 1985, the Insure...
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*882 Opinion I This appeal follows the trial court’s denial of an application for order of sale of a dwelling filed by plaintiffs and appellants, judgment creditors who sought to enforce judgments against defendant and appellant Nick Troy by having his residence sold. Concluding that appellants could not obtain a minimum bid under Code of Civil Procedure section 704.800, ...
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Opinion Does the implied covenant of good faith and fair dealing require a workers’ compensation insurer to defend and resolve claims with due regard to the impact of outstanding claims and reserves on the premiums *890 the insured will be assessed and on policy dividends it may receive? Alleging it had been damaged by defendant State Compensation Insurance Fund’s (SCIF) systematic failure to...
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Opinion Statement of the Case Defendant Ignacio Miranda appeals from a judgment entered after his motion to suppress evidence (Pen. Code, § 1538.5) was denied and he pleaded guilty to possession for sale and sale of phencyclidine (PCP). (Health & Saf. Code, §§ 11378.5,11379.5.) He claims the trial court erred in *921 denying his motion to suppress evidence against hi...
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Opinion Statement of Facts Three defendants appeal following their convictions for murder. As none of the defendants directly raises a sufficiency of the evidence claim, we will briefly summarize, in accord with the traditional rule of appellate review (People v. Johnson (1980) 26 Cal.3d 557, 562 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]), the operative events of this murder-...
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Opinion Hugh Binyon (appellant) appeals the judgment of dismissal of his petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) for lack of prosecution. 1 Respondents are the State of California, the California State Personnel Board and Charles W. Walter (collectively, the State). Appellant was employed as a senior special investigator with the California...
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Opinion We hold that in a paternity action under the Uniform Parentage Act, a nonattorney mother cannot represent her minor son as *962 guardian ad litem in propria persona, even though she cannot afford counsel and her son is a necessary party to the proceeding. We reach this conclusion because in California, as in other jurisdictions, absent specific statutory authorization...
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Opinion Plaintiffs appeal from a summary judgment granted in favor of defendant, contending that defendant violated various duties it owed plaintiffs, who had taken out a construction loan from defendant. Defendant appeals from the order denying its motion for attorney fees. We affirm the judgment and reverse the order. *977 Factual and Procedural Synopsis I. Fact...
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*989 Opinion Petitioner Corona-Norco Unified School District (District) filed a petition for writ of mandate against the City of Corona and its city council (collectively, City). The petition challenged the City’s approval of a zone change for a residential project on the grounds that: (1) the zone change was inconsistent with the City’s general plan (General Plan); and (2) the City had faile...
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*1001 Opinion I. Introduction In this case we hold that when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation. John Emmett Howard appeals from a judgment of conviction for forcible oral copulation (Pen. Code, § 288a, subd. (c...
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Opinion In this writ proceeding we clarify an issue which evidently has been causing some conftision in certain trial courts. We construe the Supreme Court’s Foley decision (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [765 P.2d 373]) to exempt from the statute of frauds oral employment contracts which are terminable within one year even when those contracts provide the term of em...
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Opinion The question on this appeal is whether a recorded order expunging a lis pendens affects a previously recorded abstract of judgment. We hold that it does not. Facts While living in Texas, Concepcion Steinberg guaranteed a loan made by Coronado Bank to a business she owned with her husband. Within seven months of each other, Steinberg and her husband died, leaving the loan...
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*1075 Opinion We hold in this case that an administrative subpoena duces tecum issued to obtain a third party witness’s personal records must be preceded by notice to the witness. Facts Ellen Sehlmeyer complained to the Board of Psychology of the State of California about Craig Stempf, a licensed clinical psychologist. The board initiated disciplinary action against Stempf and a hearing w...
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*1087 Opinion J. Alexander Securities, Inc., appeals from the judgment entered against it following the trial court’s denial of a motion to correct an arbitration award that included punitive damages. We affirm the judgment. Facts and Procedural History In 1980, respondent Signe Mendez, an elderly widow, opened a securities account with appellant J. Alexander Securities...
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Opinion In these consolidated appeals, plaintiffs John and Irene Yee, owners of two contiguous mobilehome parks in the City of Escondido (the City) subject to rent control, appeal the denial of their petitions for writ of mandate seeking to invalidate the City’s decision authorizing only a $27.50 increase in rents. We conclude that the decision of the Escondido Mobilehome Rental Review Board (t...
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Opinion Franklin S. Chadwick and Charlene D. Mandel (homeowners) were the insureds under a broad peril homeowners insurance policy issued by Fire Insurance Exchange (FIE). They noticed cracking in their walls, the cause of which was found to be substandard design and construction of the house’s wall and floor framing. FIE denied coverage on the grounds the policy excluded loss from “crack...
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17 Cal.App.4th 1128 (1993) 21 Cal. Rptr.2d 855 LEO R. HOUGHTALING, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; ANTHONY J. ROSSI et al., Real Parties in Interest. Docket No. E010985. Court of Appeals of California, Fourth District, Division Two. August 11, 1993. *1131 COUNSEL Leo R. Houghtaling, in pro. per., for Petitioner. No appearance for Respondent. John T. Borje f...
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Opinion Introduction On July 7, 1993, this court issued a written order to Liang-Houh Shieh (Shieh) to show cause before this court on July 28 why we should not declare him to be a vexatious litigant as defined by Code of Civil Procedure section 391, subdivision (b)(4), and issue a prefiling order pursuant to Code, of Civil Procedure section 391.7, subdivision (a), prohibiting him fr...
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Opinion Rafael Garcia Garcia was convicted of driving under the influence of alcohol and causing an injury. (Veh. Code,1 § 23153, subds. (a) and (b).) The trial court sentenced Garcia to three years in prison and later stayed execution of the prison commitment pending appeal. Garcia has appealed his convictions and also filed a petition for writ of habeas corpus in this court, alleging, inter alia...
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Opinion H. Tim Hoffman appeals from a judgment dismissing his action against respondent J & D Painting following the court’s grant of summary judgment to respondent. In the dismissed action, appellant, who had already recovered the cost of repair for fire damage to his house, sought additional damages to compensate him for the decline in market value that his house suffered during the fiv...
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Opinion Introduction Appellant Daniel Patrick Rooney appeals from a conviction for possession of a short-barreled rifle. Appellant contends that the trial court used the wrong method to measure the rifle, and that if another method had been used, the weapon would have been over the minimum legal length. Statement of the Case By information filed on October 1, 1991, the Solano County Distr...
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Opinion In a consolidated information defendant, Leonard A. Allen, was charged in counts I, II, and III with possession of cocaine base *1217 for sale. (Health & Saf. Code, § 11351.5.) He was also charged with one count of possession of marijuana. Defendant’s motion to suppress was denied. Pursuant to a plea bargain, defendant entered guilty pleas to counts I and III for poss...
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Opinion The instant case is an appeal from an order denying a petition to compel arbitration of a medical malpractice claim. *1229 Plaintiff Russell Coon (respondent herein) filed a complaint in Kern County Superior Court against defendant (appellant herein) George Nicola, Jr., M.D. Appellant treated respondent on or about April 4,1990, for injuries sustained by respondent in...
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Opinion We reverse the trial court’s decision denying appellant Ronald Raygoza’s petition for a writ of mandate compelling reinstatement to his job. Background Raygoza, a Los Angeles County deputy marshal, applied for workers’ compensation on December 12, 1983, claiming injury to his psyche, as the result of a May 21, 1982, shootout. On October 24, 1986, the Workers’ Compensation Appeals Bo...
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*1252 Opinion Defendant and appellant Steven L. Edwards appeals the judgment entered following his conviction by jury of first degree burglary and two counts of grand theft. (Pen. Code, §§ 459, 460, subd. (a), 487, subd. 1.) Edwards admitted he had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced E...
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Opinion Defendant and appellant Watson Land Company (Watson) appeals from a judgment in this eminent domain action brought by plaintiff and respondent Los Angeles County Sanitation District No. 8 (the District). Watson contends that the trial court erred in granting the District’s *1273 motions in limine excluding testimony of Watson’s expert regarding the value of...
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Opinion The Kaiser Foundation Health Plan, Inc., the Permanente Medical Group, Inc., and Kaiser Foundation Hospitals (hereafter Health Plan or Kaiser) appeal a judgment of the Alameda County Superior Court requiring extensive changes in the third party liability provision in service agreements with members. The theories alleged in the original complaint, filed by the plaintiff, Arthur Bra...
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Opinion East County Dodge was in the business, among other things, of selling vehicles supplied to it by Chrysler Credit Corporation (Chrysler) under a security agreement. For reasons which will be discussed, East *1308 County Dodge ostensibly deposited the proceeds from the sales of the vehicles in an account at Bank of the West to which both it and Chrysler were signatories...
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Opinion Gregory Smart Hampton appeals from a judgment holding that $47,050 found in a search of Hampton’s residence is forfeited pursuant to Health and Safety Code section 11470. Facts On May 31, 1990, Hampton filed a claim asserting an interest in $47,050 that was seized in a search of his home. On June 18, 1990, the district attorney filed a petition instituting a civil action...
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*1360 Opinion The underlying action was brought by plaintiff Diane Barton against defendant and respondent Ahmanson Developments, Inc., and others for breach of contract. Appellant Vin A. Fichter, an attorney, formerly represented Barton in the lawsuit. During the time appellant was counsel of record, the trial court imposed a $2,850 sanction against Barton and appella...
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Opinion Jose Godinez appeals from judgment entered after a jury found him guilty of attempted murder and conspiracy to commit murder, and found to be true allegations that he personally used a firearm and that the crimes were committed for the benefit of, at the direction of, and in association with, a criminal street gang, under Penal Code section 186.22, subdivision (b)(2). 1 In the publi...
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*1374 Opinion I Statement of the Case Following a jury trial, defendant Cruz Magana was found guilty of one count of first degree murder and two counts of attempted murder. The jury found true several enhancement allegations, including the allegations that as to the attempted murder counts, defendant personally inflicted great bodily injury upon the two victims. (Pen. Code, § 12022.7.) Se...
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Opinion In pertinent part, subdivision (b) of Penal Code section 4532 (undesignated section references will be to this code) provides that a violent or forcible escape from county jail by a prisoner convicted of (or facing prosecution for) a felony shall be punished by a term of two, four, or six years in the state prison “to be consecutive to any other term of imprisonment, commencing from the...
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Opinion Orr Brown appeals his conviction by a jury of molesting a child under the age of 14 years (Pen. Code, § 288, subd. (a)). Brown contends his conviction must be reversed because the court improperly admitted evidence of prior uncharged molestations and gave incomplete instructions on the subject. We reverse. Facts The Prosecution’s Case In 1987, Brown lived with his wife, Tena, an...
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17 Cal.App.4th 1399 (1993) 22 Cal. Rptr.2d 50 In re BRITTANY S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. SHERI W., Defendant and Appellant. Docket No. G013523. Court of Appeals of California, Fourth District, Division Three. August 17, 1993. *1401 COUNSEL John L. Dodd and Karen J. Dodd, under appointments by the Court of App...
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*1402Opinion In this appeal we are faced with two troubling and recurring problems, one substantive, the other procedural. The substantive problem is this: If a minor becomes a dependent under the Welfare and Institutions Code because the minor’s parent is incarcerated, what reunification services are appropriate and reasonable? The issue is important because reunification services are a major com...
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Opinion In October 1984 defendant General Dynamics (GD) terminated plaintiff Randall Holmes, a 13-year management employee. Finding GD fired Holmes in violation of public policy by retaliating against him for disclosing to management the company’s violation of the false statements act (18 U.S.C. § 1001), 1 a jury determined Holmes was entitled to $106,000 for lost wages and be...
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Opinion Jose Oscar Esqueda was jury-convicted of second degree murder (Pen. Code, 1 § 187, subd. (a)) by use of a firearm (§ 12022.5) for the death of Ana Castillo and of possessing a firearm silencer (§ 12520). The trial court sentenced him to a total 23 years to life term and imposed restitution fines under Government Code section 13967 for $5,000 and $1,000 for each crime, respectively. ...
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Opinion In this appeal from a judgment granting a permanent injunction imposing time, place and manner restrictions on the activities of antiabortion demonstrators at plaintiff’s Sacramento clinic, and from an order awarding attorney fees to plaintiff pursuant to Code of Civil Procedure section 1021.5, we reject defendants’ various challenges to the propriety and scope of the injunction. As we sha...
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Opinion Pursuant to a plea bargain, appellant was convicted of rape (Pen. Code, § 261, subd. (a)(2)) and sentenced to eight years in prison. In a previous appeal (F015491) appellant contended the trial court failed to provide a hearing when appellant requested new counsel. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) This court agreed,...
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Opinion Statement of the Case and Pertinent Facts On May 21, 1992, Delano police officers seized several items of property in connection with an arrest for sale of cocaine. Seized were $400 and $42 in United States currency, $8,445.56 cash from a Bank of America account, and a 1990 Acura two-door sedan, vehicle identification No. JH4DA9460LS010441. On May 27, 1992, apparently af...
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Opinion Plaintiffs ask this court to reverse the entry of a summary judgment in their “toxic-tort” action. We will reverse the summary judgment. In the published portion, we hold that the cost of future medical monitoring, to detect the onset of disease caused by exposure to pollutants, is a “detriment” under Civil Code section 3333. Statement of Case and Facts Defendants m...
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Opinion On February 9, 1991, James Cleveland (decedent) died intestate. This appeal concerns whether appellant Andre Cleveland is entitled to a share of decedent’s estate. Appellant filed two petitions in probate court which sought to order respondent Annette May Thomas, trustee of the James Cleveland Trust, to convey certain real and personal property to the personal representative of de...
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Opinion Plaintiff Brad C. Westlye fell while snow skiing and was injured, allegedly due to defective ski equipment rented from defendant Klein’s Ski Shop (Klein’s) and distributed by defendants Look Sports, Inc., Look U.S.A., Inc., and Nórdica U.S.A., Inc. (the distributor defendants). 1 Plaintiff filed suit alleging claims of strict products liability, negligence, breach of wa...
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Opinion In this action alleging breach of contract, fraud, misrepresentation, and negligence in the sale of residential real property, plaintiffs/buyers Jess Brasier, Deborah Brasier, J. Raymond Brasier and Christine Hansen appeal on the judgment roll from a judgment following court trial in favor of defendant/seller Melvin E. Sparks. 1 Plaintiffs contend (1) the trial court erred in finding ...
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Opinion This is an appeal from a discretionary dismissal of an attorney malpractice action under Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(1), for failure to make service of summons on the defendant within two years after the action was commenced. 1 Plaintiff Jack Scarzella contends that the trial court abused its discretion in granting the motion fo...
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Opinion I. Introduction Insurance claims arising out of leaking underground storage tanks raise the question of who will pay for the cleanup of millions of tons of toxic waste produced in the United States since World War II. This problem has sparked a legal war that has raged in both federal and state courts from Maine to California. (See Northern Ins. Co. v. Aardva...
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Opinion Plaintiff Laura Malick (appellant) appeals from a judgment that dismissed her petition for a writ of mandate to command the Department of Transportation; James W. van Loben Seis, Director; and Preston Kelley, Director, District #4 (respondents), to cease building sound walls on Scenic Highway Interstate 680 and to remove those already installed. A demurrer to the petition had been susta...
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Opinion In this case we hold that parties had sufficient notice and opportunity to be heard before the superior court transferred their case to municipal court pursuant to Walker v. Superior Court (1991) 53 Cal.3d 257 [279 Cal.Rptr. 576, 807 P.2d 418], when it became clear the matter would necessarily result in a verdict below the amount sufficient to establish superior court jurisdiction. There a...
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17 Cal.App.4th 1841 (1993) 22 Cal. Rptr.2d 220 DONNA E. MARSHALL et al., Plaintiffs and Appellants, v. LINDA S. McMAHON, as Director, etc., et al., Defendants and Respondents. Docket No. D015184. Court of Appeals of California, Fourth District, Division One. August 25, 1993. *1843 COUNSEL Charles Wolfinger for Plaintiffs and Appellants. Marilyn Holle and Sande Pond as Amici Curiae on behalf of Pl...
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