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All Reporters → cal-app-4th → Volume 69

Opinions in cal-app-4th Volume 69

Opinion The sine qua non of a life in the law is a willingness to devote a great deal of thought to issues which seldom concern nonlawyers. In this case, for example, we discuss appropriate ways in which to distinguish a theater from a restaurant—something with which the general public *8 seems to have absolutely no difficulty, but which regularly defies the best efforts of c...
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Opinion The question we must decide in this probation revocation case is whether the court unlawfully sentenced appellant Linda Faye Lawson to prison “solely because of [her] financial inability to pay [the restitution] imposed on [her] as a condition of probation” (In re Antazo (1970) 3 Cal.3d 100, 108 [89 Cal.Rptr. 255, 473 P.2d 999]), or properly sentenced her to prison beca...
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81 Cal.Rptr.2d 354 (1999) 69 Cal.App.4th 41 In re JULIE M. et al., Persons Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. Lorraine K., Defendant and Appellant. No. G023194. Court of Appeal, Fourth District, Division Three. January 11, 1999. Review Denied April 28, 1999.[*] *355 Janette Freeman Cochran, under appointment by the Court of Appe...
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Opinion Lorraine K. appeals from the order on the six-month review hearing. She claims she was denied reasonable reunification services, and she challenges the amended visitation plan requiring consent by her children. We find no merit in the first contention, but reverse on the second because it unlawfully delegates judicial authority to the minors. *44I Appellant Lorraine K. has three children ...
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Opinion The question to be decided in this case is whether six-year-old Jackson Kibbee was a “resident” of his stepmother’s household when he drowned off the shore of Cabo San Lucas, Mexico. The trial court concluded from the undisputed facts that Jackson was a resident of Yvonne Kibbee’s household and therefore, under the “resident relative” coverage exception, defendants Blue Ridge Insu...
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Opinion In this case we gauge the evidence that must be “shown” to support a summary judgment motion in order to require the party opposing the motion to take up the burden of producing countervailing evidence. *67 Plaintiffs Robert and Rae Scheiding filed this action for damages following Robert’s diagnosis with asbestosis and asbestos-related pleural disease. Plaintiffs ap...
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Opinion The instant appeal involves two consolidated cases arising out of the same proceeding. In No. A078208, petitioner, plaintiff and *96 appellant Mervyn’s (Mervyn’s) appeals from a judgment directing issuance of a peremptory writ of mandate, insofar as it refused to invalidate and set aside the entire initiative petition, presented by respondent and real party in interest Sherman L. Lewi...
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Opinion Danielle Dee Spaziano (Spaziano) appeals from a summary, judgment entered against her in an action for pregnancy discrimination under the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) 1 We affirm. Facts and Procedural History Lucky Stores, Inc. (Lucky) operates a chain of supermarkets and employs over 25,000 workers under a collective ba...
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*119 Opinion Juan Manuel Pelayo and Hilario B. Pelayo appeal judgments of conviction of committing sexual offenses against two children. 1 Juan asserts the evidence is insufficient to support his conviction of rape with a foreign object. Hilario contends that excluding certain evidence and prohibiting references to newspaper articles in closing argument denied him a fair trial. The People c...
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*128 Opinion Penal Code section 12020 makes it illegal to possess any of a long list of weapons. (All unlabeled statutory references are to the Penal Code.) Among them is a “dirk or dagger.” Subdivision (c)(24) of the statute defines those terms as “a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or...
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Opinion I. Introduction This appeal presents the interesting issue of the extent to which the absolute litigation privilege provided by Civil Code section 47, subdivision (b), 1 protects statements made in pre-civil-litigation demand letters or telephone calls which reflect discredit on individuals and are substantially *143 extraneous to the threatened litiga...
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81 Cal.Rptr.2d 400 (1999) 69 Cal.App.4th 154 The PEOPLE, Plaintiff and Respondent, v. Steven Wayne ARNDT, Defendant and Appellant. No. G021783. Court of Appeal, Fourth District, Division Three. January 12, 1999. *401 Jerry D. Whatley, under appointment by the Court of Appeal, Santa Barbara, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorn...
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Opinion A jury convicted defendant Steven Wayne Arndt of felony driving while under the influence of a drug (Veh. Code, § 23153, subd. (a)) and transporting cocaine (Health & Saf. Code, § 11352, subd. (a)). On the first count, the jury also found defendant caused bodily injury to more than one victim (Veh. Code, § 23182; hereafter section 23182), and inflicted great bodily injury on three victims...
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Opinion Breneric Associates and Stephen Scola (together Breneric) applied to the City of Del Mar (Del Mar) for a permit to build a *172 two-story addition to an existing single-family residence (the residence). A condition to obtaining the permit was approval of the project’s design and issuance of a design review permit by Del Mar’s design review board (DRB). The DRB found t...
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Opinion Defendant Brian Jeffrey Miller was convicted after jury trial of two counts of illegally possessing an explosive (picric acid and smokeless powder), two counts of illegally possessing a destructive device (incendiary and tracer ammunition), one count of illegally possessing dangerous fireworks, and one count of misdemeanor child endangerment. 1 He contends on appeal tha...
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*217 Opinion In this dispute over cuts to reimbursement rates, plaintiff Kings Rehabilitation Center, Inc. (Kings) appeals from a judgment denying its petition for writ of mandate and declaratory relief. In the published portion of this opinion we uphold the practice of “incorporation by reference” of materials into published regulations. We address other points in the unpublishe...
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Opinion This is an appeal from a preliminary injunction preventing the law firm of Hancock, Rothert & Bunshoft (Hancock) from representing the Contra Costa Water District (District) in any dispute with Morrison Knudsen Corporation (Morrison), or Morrison’s wholly owned subsidiary, Centennial Engineering, Inc. (Centennial) concerning the Vasco Road or Los Vaqueros construction projects in ...
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Opinion Amir Tahmassebi appeals from a trial court order granting respondent California Coastal Commission’s motion to enforce a judgment previously entered. We affirm the trial court. Procedural History Appellant owns a plot of land in Malibu. In November of 1991, the California Coastal Commission (the Commission) filed suit against appellant in the superior court, alleging that he had v...
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*264 Opinion After a trial court rules on motions in limine but before voir dire begins, a party files a statement of disqualification under Code of Civil Procedure section 170.1. Is the judge to whom the case has been assigned for trial required to stay the proceedings until a second trial judge rules on the disqualification motion? We hold the trial judge is not requ...
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*272Opinion Plaintiff Wallace Silver appeals a summary judgment favoring defendant Lawrence McNamee on Silver’s complaint for medical malpractice. Silver contends the superior court erred in concluding this lawsuit was time barred as a matter of law. We reverse the judgment. I Introduction The parties dispute whether Silver timely served McNamee with notice of intent to sue (Code Civ. Proc.,1 § 3...
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Opinion Defendant and appellant Los Angeles Export Terminal, Inc. (LAXT) appeals a judgment and postjudgment order in favor of plaintiffs and respondents International Longshoremen’s and Warehousemen’s Union (ILWU), three of its affiliated locals, ILWU Local 13, ILWU Local 63 and ILWU Local 94, and three individuals, James Spinosa, John Vlaic and Mike Freese, each of whom is an officer or...
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Opinion A parole search of the residence of Michael C. Myers on May 3, 1995, revealed two loaded handguns hidden under a mattress. Appellant *308 was sentenced to prison for a term of 25 years to life after he was found guilty by a jury of being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1) and found by the court to have previously been convic...
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Opinion In 1994, William L. Lynch was charged with eight counts of lewd conduct with a child, all of which allegedly occurred *315between 1965 and 1972. Lynch demurred, contending the three-year statute of limitations in effect at the time of the charged offenses had long since expired, and that it could not be revived by a 1994 amendment extending the period of limitations to one year from the da...
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Opinion A contractor’s employee working on the roof of a building is injured as he climbs through a hatch providing the only roof access. The hatch was negligently maintained by the building owner. In a personal injury action by the employee, is the building owner covered by an endorsement to the contractor’s commercial general liability policy making the owner an additional insured “but ...
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*335Opinion We hold here as a matter of first impression that the evidentiary rule stated in Penal Code1 section 1111, requiring corroboration of accomplice testimony, does not apply in probation revocation proceedings. I. Facts and Procedural History Appellant Michael McGavock was placed on probation following his conviction for willfully inflicting corporal injury. (§ 273.5.) Shortly thereafter,...
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Opinion I. Introduction Jose Herrera Rodriguez (Rodriguez) was convicted by a jury of auto theft (Veh. Code, § 10851, subd. (a)), assault on a police officer (Pen. Code, *344 § 243, subd. (c)), 1 resisting a police officer (§ 69 ) and driving with a .08 percent or more blood-alcohol level (Veh. Code, § 23152, subd. (b)). Rodriguez admitted three prior prison t...
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Opinion Plaintiff and appellant Reverend Eugene R. Berry (Berry) appeals a judgment following a grant of summary judgment in an unlawful detainer action in favor of defendants and respondents Society of Saint Pius X (the Society), Reverend Peter Scott (Scott), Reverend Paul Tague (Tague) and Reverend Charles Ward (Ward) (collectively, defendants or the Society). Berry claims he is en...
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81 Cal.Rptr.2d 596 (1999) 69 Cal.App.4th 375 John ROES, Plaintiff and Appellant, v. William WONG et al., Defendants and Appellants. No. D026021. Court of Appeal, Fourth District, Division One. January 20, 1999. *597 Fagan & Fagan, Craig P. Fagan and Stuart E. Fagan, San Diego, for Plaintiff and Appellant. Purdy & Herron, Charles E. Purdy IV, San Diego, and T. Hall Brehme IV, Los Angeles, ...
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Opinion James Warner Eichorn was convicted of a misdemeanor violation of a City of Santa Ana ordinance banning sleeping in designated public areas. The appellate department affirmed his conviction and denied his request to transfer the cause. Eichorn thereafter petitioned for writ of habeas corpus in this court. We conclude his conviction must be set aside. I James Eichorn was cited for vio...
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Opinion Introduction The evidence in this case showed Robert Milen Yovanov sexually molested his girlfriend’s twin daughters, Kristy and Kathy H., at various times throughout their childhood. The first rash of molestations occurred in 1986, when the girls were 11 years old. Yovanov was sent to prison for his conduct, but he was paroled in May 1988 and thereafter resumed molesting Kristy. In 1...
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Opinion Serge Rigo was arrested for cultivation of marijuana the day before the effective date of the Compassionate Use Act of 1996 *411 (Health & Saf. Code, § 11362.5). 1 Over three months later, Rigo obtained a doctor’s approval on a written prescription form for medical use of marijuana. On stipulated facts, the superior court ruled that approval three months af...
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Opinion Introduction This is an action by a listed subcontractor against the prime contractor of a public work. The subcontractor asserts a statutory cause of action pursuant to the Subletting and Subcontracting Fair Practices Act (Pub. Contract Code, § 4100 et seq.), 1 and Southern Cal. Acoustics Co. v. C. V. Holder, Inc. (1969) 71 Cal.2d 719, 727 [7...
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Opinion Joezita Biggers petitions for a writ of review, seeking to overturn a decision of the Workers’ Compensation Appeals Board (the Board) that found she was not eligible for benefits under Labor Code section 4850. Labor Code section 4850 provides for a leave of absence at full salary for certain employees of a sheriff’s office who become disabled in the course of employment. Biggers contend...
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*444 Opinion Jaime Flores Guerrero appeals a judgment reestablishing his Lanterman-Petris-Short (LPS) conservatorship. He contends the court erred by instructing the jury he could be considered gravely disabled if the jury found he would not take medication for a mental disorder, and he would be unable to provide for his basic needs of food, clothing or shelter without medication. We hold the...
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Opinion A municipality imposed a business tax upon a corporation’s local selling activity. (S.F. Mun. Code, pt. III, §§ 1002.2, 1004.08, 1004.13.) 1 The corporation claimed the tax interfered with commerce by discriminating in favor of local manufacturers and sued for both a refund under state law and damages under federal civil rights law. (Gov. Code, §§ 935, subd. (a), 940.4,...
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81 Cal.Rptr.2d 604 (1999) 69 Cal.App.4th 462 ESTATE OF Anthony BONACCORSI, Deceased. Joseph A. Ricca, Petitioner and Appellant, v. Salvatore Bonaccorsa et al., Objectors and Respondents. No. G019597. Court of Appeal, Fourth District, Division Three. January 21, 1999. As Modified on Denial of Rehearing February 16, 1999. Review Denied May 12, 1999. *606 Williams & Martinet, Leonard J. Martinet...
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*465Opinion In this probate matter, the discharged administrator of an estate appeals from orders surcharging him $134,200 for breach of fiduciary duty, denying statutory and extraordinary fees, and imposing an additional $50,000 in attorney fees for bad faith. We disallow the surcharge for the depreciated value of the decedent’s residence ($50,000) and the fee award, but affirm the remaining sur...
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Opinion Introduction Appellants appeal from a denial of their motion to strike the complaint based on respondents’ failure to comply with Civil Code section 1714.10.1 We affirm. *483Factual Background Overview of the Case Respondents Westamco Investment Company, Southwest Capital Investment, and Sherman Gardner (collectively, Westamco) filed a malicious prosecution action against appellants Jan...
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Opinion Plaintiffs REO Broadcasting Consultants (REO), Richard E. Oppenheimer (Oppenheimer), and Gilbert A. Cabot (Cabot) (collectively plaintiffs) sued defendant Michelle Edith Martin, also known as Michelle Wright (defendant), in superior court for breach of a contract whereby Cabot, through REO, a partnership composed of Cabot and Oppenheimer, was to render marketing and career consulting se...
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Opinion To our knowledge, David Rodriguez Velasquez presently occupies a singular place in California penal history. That is to say, he is the *505 only person ever to have been sentenced to state prison for three years for annoying or molesting a child with a qualifying prior conviction in violation of Penal Code section 647.6, subdivision (c)(2). For this offense, the Legislature has determ...
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Opinion Introduction Plaintiff, the City of Vernon (plaintiff), sought injunctive and other relief against defendants James William Zastrow (Zastrow), Central Basin Municipal Water District (District), and Peerless Water Company (Peerless). District is a municipal water district organized under the Municipal Water District Law of 1911 (Wat. Code, § 71.000 et seq.). Zastrow is an elected membe...
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Opinion The assignee of a security interest in a deed of trust unilaterally signed an agreement subordinating the deed of trust to a subsequent deed of trust. Thereafter, the assignor paid its secured debt and the earlier deed of trust was reconveyed to it. When the trustor of the subsequent deed of trust defaulted, the assignor asserted its lien had first priority. However, the beneficia...
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Opinion The question we are asked to resolve is whether an action brought on behalf of a conservatee by the county’s public guardian against a nonresident defendant must be transferred to a neutral county in accordance with section 394 of the Code of Civil Procedure, subdivision (a). 1 We conclude that such an action is not one “brought by” a county agency within the meaning of section 394. A...
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81 Cal.Rptr.2d 726 (1999) 69 Cal.App.4th 583 In re the MARRIAGE OF Robert L. and Evelyn Kaiser BARNESON. Michael McGirr, as Executor, etc., Appellant, v. Evelyn Kaiser Barneson, Respondent. No. A080323. Court of Appeal, First District, Division Two. January 26, 1999. *727 Law Offices of Peter G. Lowenstein, New York City, Kathleen A Murphy, Tanke & Willemsen, Tony J. Tanke, Redwood City, Kare...
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*585Opinion Michael McGirr, executor of the estate of Robert L. Bameson, appeals from a trial court order finding certain transfers of stock from the decedent into the name of his then wife constituted transmutations of his separate property into her separate property under Family Code section 852, subdivision (a). Appellant contends the writings pursuant to which the transfers were effected did ...
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Opinion The principal issue in this appeal is when state income tax deficiencies are “assessed” for federal bankruptcy discharge purposes under 11 United States Code section 507(a)(8)(A)(ii) and (iii). (This federal statute, together with 11 United States Code section 523(a)(1)(A), generally specifies that income taxes that are assessed within 240 days of filing of a bankruptcy petition o...
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Opinion Arroyo Software Corporation (Arroyo) appeals from a judgment enjoining it from misappropriating golf handicap formulas and service marks developed and owned by the United States Golf Association (USGA). Arroyo *611 contends the trial court erred in (a) refusing to bar USGA’s lawsuit on the ground it was collaterally estopped by an earlier decision of the United States...
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Opinion Defendant Thomas Michael Moore was convicted on a plea of no contest of committing a lewd act on a child under the age of 14. (Pen. Code, § 288, subd. (a).) On appeal from the judgment with a certificate of probable cause, Moore contends that the court erred in denying his motion to withdraw the plea. The issue is whether the court was required to advise Moore, before accepting hi...
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Opinion Appellant, a minor, was prosecuted as an adult after giving a false name and date of birth. Appellant entered into a negotiated disposition pursuant to which he pleaded no contest to a lesser offense in return for a probationary, sentence. Subsequent to his conviction, the prosecution determined appellant was in fact a minor and the matter was certified to the juvenile court. The juvenile...
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81 Cal.Rptr.2d 745 (1999) 69 Cal.App.4th 652 James LAWSON et al., Plaintiffs and Appellants, v. MANAGEMENT ACTIVITIES, INC., et al., Defendants and Respondents. No. G019872. Court of Appeal, Fourth District, Division Three. January 27, 1999. *746 Lisa R. Geraurd, Los Angeles, for Plaintiffs and Appellants. Michaelis, Montanari & Johnson, Garry L. Montanari, Westlake Village, and Wesley S. Wen...
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*674Opinion Westside Hospital appeals from a judgment denying its petition for writ of administrative mandate in favor of S. Kimberly Belshé, Director, State of California, Department of Health Services in this Medi-Cal reimbursement case. We conclude Hospital did not file its petition within the statute of limitations period provided in Welfare and Institutions Code section 14171, subdivision (j)...
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Opinion Education Code section 8448 requires an organization having a “direct service contract” with the state for the operation of child care and development programs and related support services annually to prepare a single independent “financial and compliance audit” of its operations. If the audit meets generally accepted auditing standards, it shall be relied upon by the state Department o...
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Opinion An employee of a plumbing subcontractor slipped and fell during a “punch list” inspection on a high-rise construction project. The trial court made two separate factual findings based on the evidence: First, the general contractor was solely at fault; second, the general contractor’s negligence did not arise out of its supervision of the subcontractor’s work. Because there is sufficient e...
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Opinion Petitioner, the County of Sacramento (County), seeks review of an order of the Workers’ Compensation Appeals Board (Board) awarding Ann Lou Souza a penalty under Labor Code section 5814 for delayed payment of death benefits. Petitioner contends the delay was not “unreasonable” within the meaning of that section and therefore a lesser penalty was warranted. We agree and shall reverse. ...
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Opinion This appeal addresses the question whether the plaintiff in a SLAPP suit (a Strategic Lawsuit Against Public Participation) can, by the device of dismissing the SLAPP prior to a hearing on the defendant’s motion to strike the complaint, avoid paying the attorney’s fees incurred by the defendant in defending the suit. 1 In the instant case, the appellant contends the res...
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Opinion This is the latest in a series of cases which involve the scope and application of Proposition 213, enacted by the voters on November 5, 1996. 1 Essentially, this initiative prohibits (1) recovery of any damages by a convicted felon for injuries caused in the commission of or flight from tiie felony (Civ. Code, § 3333.3) 2 and (2) recovery of noneconomic *759 damages by any drun...
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Opinion The appellant, Vance Jackson, a Los Angeles police officer, asks us to reverse the judgment of the trial court which rejected his petition for administrative mandamus brought under Code of Civil Procedure section 1094.5 to set aside a disciplinary suspension imposed upon him by the chief of police of the respondent City of Los Angeles (City). Because we conclude that the administrative ...
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*789Opinion This case presents the question of whether, under the rules governing the joinder of parties, a trial court can require a plaintiff to sue all of the participants in an alleged scheme to defraud even though the plaintiff wants to sue only some of them. Plaintiff contends that it can choose which tortfeasors to sue. We agree. Background Plaintiff Countrywide Home Loans, Inc., is a mort...
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*803Opinion After a 24-year marriage,1 the trial judge awarded Ida Schaffer spousal support of $850 per month for the first year and $650 per month for the second year, at which time there was to be a “jurisdictional step down” for the balance of Ida’s2 life. At the time Ida was 48 years old, had a master’s degree in marriage, family and child counseling from Chapman University, and planned to get...
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Opinion This action for malicious prosecution against James G. Harker, an attorney, presents the question whether alleged bias, on the part of the trial judge towards attorneys in general and the defendant in particular requires reversal. We conclude it does. Procedural History Dudley Taylor, a real estate broker, lived in Paso Robles in 1985. In February 1986, he went to wo...
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Opinion In an ever-increasing trend, this murder case arises from an all-too-familiar formula: one party commits a relatively minor “infraction” which quickly escalates into street violence and then death or serious injury. Many of us can relate to this phenomenon by reflecting upon our own experience behind the wheel of a car when a driver cuts too close to your vehicle, and “road rage” sets i...
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Opinion Justin B., a minor, appeals from the order of wardship (Welf. & Inst. Code, § 602), following his admission to having received stolen property (Pen. Code, § 496) 1 as alleged in count 2 of the petition, and “suitable placement” for a confinement period not to exceed three years. Appellant contends the court erred in denying his motion to suppress (Welf. & Inst. Cod...
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Opinion Summary Federal Medicaid law barred California’s Department of Health Services (DHS)—as the “single agency” designated to administer federally funded Medicaid/Medi-Cal payments for medical services for the poor and indigent—from delegating to the state Controller the audit of claims by medical service providers, and the withholding of alleged overpayments. Facts and Proc...
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Opinion The industry standard in the aircraft rental business requires a pilot to complete a “high altitude checkout” before being permitted to rent an aircraft for a flight to a “high altitude” airport. Although defendant Inbound Aviation had a policy incorporating just such a requirement, it knowingly permitted a young inexperienced pilot who had not completed a high altitude checkout t...
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*935Opinion Petitioner Patricia O. (mother) seeks writ review (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B)1 of respondent court’s order denying mother family reunification services and setting a hearing under section 366.26 as to minors Salman Y. and Jasmine Y. on February 24, 1999. We deny the writ. Factual and Procedural Background The minors were declared wards of...
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Opinion This case involves claims for racial harassment and wrongful termination by appellant Terry Drain against his former employer, respondent Betz Laboratories, Inc. (Betz), and his former supervisors, respondents Robert Van Aken and Richard Miller. The court granted summary judgment in favor of respondents. In our original opinion filed May 13, 1998, we affirmed the judgment. Thereaf...
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*965 Opinion Dorothy Chaknova, on her own behalf and as successor in interest to her deceased husband, Albert Chaknova, 1 appeals the trial court’s entry of summary judgment in favor of respondent corporation, Wilbur-Ellis Company (Wilbur-Ellis) in this action for asbestos-related injuries. We hold, as did the trial court, that Wilbur-Ellis met its burden of establishi...
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Opinion Bendix L. Thygesen appeals from the imposition of a restitution order. The sole issue before us is whether the trial court correctly awarded the victim 13 months of rent. For the reasons that follow, we hold the award was not supported by the evidence. We therefore reverse and remand. Facts On May 19, 1997, appellant rented a cement mixer (the mixer) from Bonner’s Equipment Rental (Bonner)...
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*1008 Opinion Karen S. and Larry T., parents of David T. (the minor), seek a writ of mandate (Cal. Rules of Court, rule 39.1B) directing the juvenile court to vacate its orders denying them reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26; further section references are to this code). 1 Larry also requests a stay of proceed...
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Opinion This case concerns the proper test to bé applied by a trial court in deciding whether to grant a posttrial motion to add an alleged alter ego as an additional judgment debtor. Appellant contends that the proper test is the normal preponderance of the evidence burden of proof that *1014applies generally to factfinding proceedings in a trial court. Respondent contends that the proper test i...
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81 Cal.Rptr.2d 900 (1999) 69 Cal.App.4th 1017 Theodore L. HAAS, Plaintiff and Respondent, v. COUNTY OF SAN BERNARDINO et al., Defendants and Appellants. No. E022209. Court of Appeal, Fourth District, Division Two. February 4, 1999. Review Granted April 28, 1999. *901 Alan K. Marks, County Counsel (San Bernardino), and Alan L. Green, Deputy County Counsel, for Defendants and Appellants. Roger Jon ...
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*1060 Opinion Plaintiff The Monterey Plaza Hotel appeals from a judgment in favor of defendants Hotel Employees & Restaurant Employees Local 483 (HERE), Hotel Employees and Restaurant Employees International, AFL-CIO, (HERE International), and Maya Holmes, after the trial court granted their special motion to strike plaintiff’s defamation complaint. (Code Civ. Proc., § 425.16.) ...
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*1072 Opinion South Bay Chevrolet, Inc. (a motor vehicle dealership), its officers and shareholders David Ordway and Travis Reneau, and South Bay Creditors Trust 1 sued General Motors Corporation (GM) and General Motors Acceptance Corporation (GMAC) for engaging in a course of allegedly wrongful conduct designed to cause South Bay’s business to fail and force South Bay to sell the dealershi...
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Opinion A jury convicted appellant Gabriel Ruiz of one count of second degree robbery and determined that he had personally used a knife in the commission of that offense. (Pen. Code, §§ 211, 212.5, subd. (c), 12022, subd. (b)(1).) 1 Allegations that appellant had suffered a prior serious felony conviction were found true in a bifurcated court trial. (§§ 667, subd. (a)(1) *1088 [five-year e...
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Opinion In this bail forfeiture proceeding, the trial court denied the motion of appellant Frontier Pacific Insurance Company to vacate a bail forfeiture after the Los Angeles District Attorney’s Office failed to initiate extradition proceedings against criminal defendant Jose Luis Cortez (Cortez), who had absconded to Mexico. The trial court ruled that appellant had failed to meet the requirem...
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Opinion Marveya Vera appeals from a judgment of conviction of conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1)), namely a violation of Health and Safety Code section 11370 (sale of methamphetamine), and possession of a controlled substance, namely cocaine (Health & Saf. Code, § 11350, subd. (a)), following a jury trial. *1102 On appeal, the defendant contends she...
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Opinion The basic issue here is whether Mono County’s Public Safety Officers (PSO’s) must be granted “local safety member” classification under Mono County’s contract with the California Public Employees’ Retirement System (PERS). As part of their duties, PSO’s supervise county jail inmates. We conclude that the PSO’s are “safety members” of PERS. We therefore reverse the trial court...
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Opinion This dispute between a former employee and his former employer raises issues concerning the Uniform Trade Secrets Act (UTSA) (Civ. Code, § 3426 et seq.). We conclude the UTSA was improperly applied here and reverse the judgment in part. Facts Robert L. Cloud & Associates, Inc. (RLCA), is an engineering firm specializing in “pressure vessel” consulting. In 1986, when plai...
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Opinion On March 12, 1993, a tragedy occurred which forever altered the lives of the Summers family. Jerry Lee Summers was driving his pickup track and became involved in an accident with a track pulling two trailers filled with com. Based on a series of events, the two trailers became detached and one tipped over onto Jerry’s track, burying it in corn. In a few short moments, a husband a...
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Opinion I. Introduction The People have petitioned for a writ of mandate directing respondent court to vacate its order releasing real party in interest, Jeffrey W. Roam (Roam), on supervised own recognizance (supervised OR) to attend a drug rehabilitation program at the Delancey Street Foundation (Delancey Street) in Los Angeles. Because Roam pleaded guilty to a serious felony, and also to four p...
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Opinion Petitioners Eusebio V. (father) and Christine M. (mother) seek writ review (Welf. & Inst. Code, § 366.26, subd. (l); 1 Cal. Rules of Court, rule 39.1B) of respondent court’s order terminating family reunification services and setting a hearing under section 366.26 as to minor Diana M. on March 15, 1999. We deny the writ. Factual and Procedural Backgrou...
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Opinion Keith M. Terrell appeals from the judgment entered following a court trial that resulted in his conviction of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 1) and unauthorized possession of a hypodermic syringe (Bus. & Prof. Code, § 4140; count 2). He was sentenced to prison for 16 months on count 1. The court awarded him 172 days’ precommitme...
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Opinion This case concerns the defense of election of remedies in the context of attachment. The plaintiff (appellant on this appeal) obtained and levied a writ of attachment in a related but different case against a corporate defendant. The trial judge then ruled that plaintiff was barred by the election of remedies doctrine from pursuing tort remedies in this case against two individual defenda...
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*1284 Opinion Plaintiff and appellant Robert S. Levin (appellant) appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants and respondents Gulf Insurance Group (Gulf), Norby & Brodeur and Ruben Baeza, Jr. (Baeza). 1 In reviewing the sufficiency of a complaint against a general demurrer that was sus...
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*1299 Opinion At the conclusion of an evidentiary hearing, an able and experienced trial judge, applying well-established legal principles, granted Elmer Gerard Pratt’s petition for writ of habeas corpus. The basis for the ruling was that, under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], Pratt had been deprived of evidence at his 1...
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*1327 Opinion Custodio Garcia, defendant, was one of four perpetrators involved in a home invasion. Two of his accomplices were shot and killed by the victim of the home invasion. Defendant submitted his case to the trial court based on the preliminary hearing transcript. The trial court found defendant guilty of conspiracy to commit robbery, burglary, and murder. Pursuant to a p...
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Opinion Defendant, Kenneth Howard Ellis, was driving under the influence of alcohol when the car he was driving rear-ended another vehicle, injuring William Schmidt. He was convicted of numerous offenses, including violations of Vehicle Code section 23153, subdivisions (a) and (b). 1 Subdivision (a) of section 23153 requires the prosecutor to prove that the defendant drove under the influence...
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Opinion I. Introduction In this case a father claims he was wrongly accused of sexually abusing his daughter because his daughter’s therapist implanted the idea in her mind. *1343 He has now sued the daughter’s therapist for “professional negligence,” that is, malpractice, despite the fact that he was never the therapist’s patient. The case comes to us on a ju...
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82 Cal.Rptr.2d 294 (1999) 69 Cal.App.4th 1361 Destinni Ann MARDESICH, Plaintiff and Appellant, v. CALIFORNIA YOUTHFUL OFFENDER PAROLE BOARD et al. Defendants and Respondents. No. B120658. Court of Appeal, Second District, Division Six. February 16, 1999. Review Denied May 26, 1999.[*] *296 Law Offices of Roger J. Rosen, Los Angeles, and Ben Pesta, for Plaintiff and Appellant. Daniel E. Lungren, A...
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Opinion Destinni Ann Mardesich appeals the summary denial of her petition for writ of administrative mandamus which challenged an order of the Youthful Offender Parole Board (Board) returning her from the California Youth Authority (CYA) to the Orange County Superior Court for commitment to state prison. We hold that because the Board’s decision directly affected a vested fundamental right, the t...
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Opinion This action arises out of the aborted settlement of a personal injury action. Plaintiffs unsuccessfully attempted to enforce a purported settlement pursuant to Code of Civil Procedure section 664.6. (All further statutory references are to the Code of Civil Procedure.) Thereafter, they proceeded to trial on the underlying claim and lost; they did not appeal. Plaintiffs filed a new action a...
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Opinion Appellants William and Darlene Yu filed this action individually and on behalf of others similarly situated against respondents Signet Bank/Virginia and Capital One Bank challenging respondents’ debt collection practices with respect to credit cards they issued to California residents. This appeal arises from the judgment entered for respondents after their motion for summary judg...
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Opinion Strasbourger Pearson Tulcin Wolff Inc., Michael J. Schumacher, and Allan M. Levine (collectively Strasbourger) appeal the order disqualifying Stroock & Stroock & Lavan and Michael F. Perils, a member of the firm (collectively Stroock), from representing Strasbourger in the action below, claiming the trial court abused its discretion because: (1) Stroock’s representation caused, at...
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Opinion On September 19, 1997, the Kern County District Attorney’s Office initiated a civil action against appellant, David Allen Dillier, to establish his paternity of, and parental obligations for, four minor children. .On this same date, the district attorney’s office also submitted a proposed judgment that, if approved by the court, would establish appellant’s paternity, the amount of monthly...
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*1443 Opinion The issue in this appeal is whether a city’s failure to maintain a streetlight over a crosswalk creates a dangerous condition of public property. This question comes to us by way of summary judgment entered in favor of the City of Riverside in an action for damages based on injuries Sarah Salmi suffered when she was hit by a car while crossing the street in the unlighted crosswa...
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Opinion I. Introduction Jon C. Fretland (Fretland) appeals a summary judgment which disposed of his action against his former employer, the County of Humboldt (the County). Fretland contends triable issues of fact exist as to his claims for discrimination in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), assault and battery and emotion...
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82 Cal.Rptr.2d 368 (1999) 69 Cal.App.4th 1494 Adam LAZAR, Plaintiff and Appellant, v. HERTZ CORPORATION et al., Defendants and Respondents. Nos. A080439, A080767. Court of Appeal, First District, Division Four. February 17, 1999. Review Denied April 28, 1999. *371 Milberg, Weiss, Bershad, Hynes & Lerach LLP, William S. Lerach, Alan M. Mansfield, William S. Dato, Frank J. Janecek, Jr., San Die...
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Opinion Adam Lazar filed a class action complaint for damages and injunctive relief against four rental car companies alleging that they refused to rent automobiles to persons under age 25 or unreasonably restricted such rentals. After all of the alleged causes of action were adjudicated against Lazar, the trial court entered judgment in favor of defendants. In these consolidated appeals, Lazar a...
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Opinion The Department of Motor Vehicles (DMV) suspended Noel Louis Draeger’s driver’s license in September 1996 pursuant to Vehicle Code section 13352, subdivision (a)(3) following two drunk driving convictions, one in California, and one in Florida. 1 Draeger argued the Florida statute was not comparable to section 23152, California’s drunk driving statute. He filed a petitio...
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Opinion Petitioners, G.E. Engine Maintenance and Electric Insurance (collectively G.E.), as the affected employer and its insurance carrier, respectively, seek review and annulment of an order of the Workers’ *1530 Compensation Appeals Board finding compensable injuries sustained by applicant Craig Main as a result of a traffic collision that occurred on his way to work. They...
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Opinion Plaintiff Elizabeth Rosemary Campbell and 19 other heirs of victims of a fatal airplane crash in Australia appeal from the trial court’s *1538 ruling granting summary judgment in favor of defendant Cessna Aircraft Company and staying the action as to defendants Parker-Hannifin Corporation, Instrument Pro, Inc., and Brent’s International, Inc., on grounds of forum non ...
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