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All Reporters → cal-app-lexis → Volume 1963

Opinions in cal-app-lexis Volume 1963

The defendant has appealed from the judgment imposed upon him following his conviction on the charge that, in violation of a provision of the Los Angeles Municipal Code, he had carried concealed upon his person a knife with a blade at least 3 inches in length. The knife, introduced into evidence, with a blade 3% inches in length, and characterized by the arresting officer as a produce knife, one u...
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Defendant Aurelio Nino and one Doroteo Mojarro were convicted, in a trial by jury, of violating section 10851 of the Vehicle Code (driving automobile without consent of owner). Nino admitted an allegation of the information that he had been convicted previously of a felony (driving automobile without consent of owner). Nino appeals from the judgment. On August 3, 1962, about noon, Mrs. Lewis left ...
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Defendant appeals from an order denying his motion to vacate forfeiture of bail. He contends that at the time of his arrest and at all times subsequent thereto he was in active service as a member of the United States Navy (aboard the'U.S.S. Yorktown); that being so, the trial court was assertedly without jurisdiction to declare a forfeiture because of certain provisions of the Soldiers’ and Sailo...
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Appellant Joseph Harris Norris and Billy Harrison Walker were jointly charged in two counts with the robbery (in Count I), and the murder (in Count II), of Leopold Zoilman. The robbery count alleged defendants were armed with a deadly weapon, a pistol. Motions by defendant Norris for severance of trial and for change of - venue were denied. Defendants entered pleas of not guilty. In a jury tria...
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The respondent, ABC Egg Ranch, Inc., a corporation, filed its complaint against appellant asking for an accounting, dissolution of partnership, capital contribution by the appellant, and distribution of assets under an alleged oral partnership between the parties. The appellant in his general answer denied that there was a partnership with respondent as well as all other allegations in the compla...
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Defendant appeals from a judgment entered upon a jury verdict finding him guilty of burglary in the second degree. Two prior burglaries charged in the information were admitted. Donald Spain testified that he and defendant went to the Balboa Golf Club on the night of August 30, 1962. Spain entered the clubhouse through a window. Either he or defendant broke the glass door in the manager’s office. ...
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This is an appeal by both parties to this litigation from specified portions of the judgment in an eminent domain proceeding. 1 The Record The present appeal grows out of an earlier appeal in the instant case decided by this court. 2 In order to properly place the appeal now before us in its proper focus it will be necessary to set out a summary of the facts set...
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Plaintiff appeals from a judgment of dismissal entered after the sustaining without leave to amend of a demurrer to his second amended complaint. Said complaint is in two counts: the first against defendant Southern Pacific Company 1 alone for damages for the wrongful discharge of plaintiff from its employ; and the second against all defendants for damages resulting from a consp...
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This is an appeal by plaintiff taxpayer from a judgment in favor of defendants 1 after the sustaining *80 of a demurrer to the amended complaint 2 and from the order sustaining said demurrer. 3 Question on Appeal The question on appeal is whether the amended complaint states a cause of action. Implicit in the question is the determination of the validity of a lease entered into betw...
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Appellant was charged with robbery (Pen. Code, § 211), convicted by a jury, and appeals. The record supports the following statement of facts: On October 1, 1962, at about 2:30 a.m., Earl Peterson, attendant at a service station in Oakland, was beaten and robbed by two Negroes. The robbers walked into the service station premises and confronted Peterson in the office. One robber, later identified ...
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Defendant Union and its secretary appeal from order overruling demurrer and granting preliminary injunction enjoining defendant union from delivering to any prospective customer of plantiff in front of his barber shop any cheek, chit or coupon to induce him to leave plaintiff and go to another barber shop upon the promise that it will give him a reduction of $1.00 on a haircut, or in any way ma...
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This appeal is taken by the People from the order of the superior court granting defendant's motion under section 995, Penal Code, to set aside the information theretofore filed against him. In accordance with the order of the municipal court holding defendant to answer after preliminary hearing, this information charged defendant with possession of a sawed-off shotgun in violation of section 120...
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On rehearing. Does the possession of two spoons, which arc parts of narcotic injection kits, from the scrapings of which a forensic chemist was able to detect a minuscule amount of heroin, constitute the known possession of the narcotic itself 1 This is the principal question in this appeal. *120 Defendant-appellant Oscar Aguilar and codefendant James Aguilar were charg...
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Petitioners are the surviving widow and children of Emery G. Dowden, who suffered fatal injuries in the course of his employment. Petitioners applied to the Industrial Accident Commission for an increased award pur *126 suant to Labor Code section 4553, contending that the accident occurred as the result of serious and wilful misconduct on the part of Dowden’s employer, Newton Pola...
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Petitioner Henry J. Wolters is a painting contractor. Two experienced painters employed by him, Charles McGee and Walter Van Heukelem, were injured by the collapse of a scaffold. The employees applied to the In*139¿historial Accident Commission for an augmented award of compensation, charging serious and wilful misconduct of their employer.1 The commission granted the awards and Wolters seeks revi...
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This is an appeal by the People from an order granting defendant Harold Wayne Goodspeed a writ of error coram nobis. On November 3, 1961, defendant was charged in an information (case No. 58990) with a violation of section 11500 of the Health and Safety Code on September 21, 1961 (possession of heroin) and in a second count with a violation of section 11530 of said code on the same date (poss...
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The instant action is for sums assertedly due under a guaranty of a lease; the faithful performance guaranteed by defendants was not more than $6,000. Plaintiffs were given judgment for $439 and costs; they have appealed. It is contended that the evidence does not support certain key findings of fact and, therefore, the conclusions of law drawn therefrom. On June 15, 1960, hy an instrument in w...
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This court initially denied appellant’s application for appointment of counsel to represent him on appeal. In due course after briefs were filed, the case was submitted and an opinion rendered affirming the judgment of conviction. (P eople v. Shepherd, 200 Cal.App.2d 306 [19 Cal.Rptr. 234].) Following the decision of the United States Supreme Court in Douglas v....
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This action concerns the right of respondents to transport irrigation water across land owned by third persons. Mr. George, who is not a party to this action, owned contiguous lots of approximately 10 acres each, near the City of Dos Palos, County of Merced. He sold the south lot to appellant Shaw, who subdivided it. Prior to Shaw’s purchase, an- open ditch carried irrigation water from a source o...
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Plaintiff sought a declaratory decree that defendant be held liable under a sickness and accident insurance policy for which he applied on August 21, 1961. At that time he tendered the sum of $5.46 and was given a receipt therefor, made subject to certain conditions. Eight days later, before the policy issued, he sustained a broken pelvis when he fell down a flight of steps. Judgment was for plai...
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Petitioner herein seeks a writ of prohibition to restrain respondent court from enforcing its order which (a) releases from petitioner’s attachment certain personal property of Elwood and Jacquelyn Rork, the real parties in interest herein, and (b) provides that petitioner “may not subsequent to July 22, 1963, pursue the remedy of attachment against the personal property of said defendants Elwo...
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Defendant was found guilty after a court trial of possessing marijuana in violation of Health and Safety Code, section 11530. The question raised by this appeal is whether the narcotic found on defendant’s person just prior to his arrest was the product of an unlawful search. The only evidence of the circumstances surrounding de *197 fendant’s search and arrest was the testimony of one of the...
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This is an appeal from a judgment, based on a directed verdict, in an action brought by two minors to enforce against the estate of Silve G. Arata two contracts for their support and maintenance. The plaintiffs are the illegitimate children of decedent, and the contracts sued upon were alleged to have been made with the mother of the infants for their benefit. The allegations of the c...
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Plaintiff appeals from a judgment of $1,000 entered upon a jury verdict in his favor in a personal injury action. The sole issue is whether the award is inadequate as a matter of law. On' February 12, 1960, plaintiff was a passenger in an automobile which was stopped in a line of traffic waiting for a change in the signal light at the intersection ahead. Defendants’ automobile ran into the rear...
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This is an appeal from a judgment denying the appellant’s petition to revoke probate of her mother’s will. The only question is the sufficiency of the evidence to support the findings and conclusions of the court below. *213 Helene L. Desmond died on May 28, 1959, leaving a holographic will dated August 31, 1951, which was admitted to probate on September 17, 1959. The chief beneficiary is th...
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Defendant was convicted of a violation of section 288 of the Penal Code by his plea of guilty. His application for probation was denied and he was sentenced to state prison. There was no motion for a new trial or appeal from the judgment of conviction. Up to and including pronouncement of sentence, defendant was represented by court-appointed counsel, Ben F. La Mar, Jr. Seven months later, defenda...
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Petitioner Rollins seeks a writ of prohibition to prevent the trial court from proceeding against him following the denial of his motion to set aside an information charging him with the commission of a felony. Appellant’s motion was made on the ground that he had been committed without reasonable or probable cause. (Pen. Code, §§ 995, 999a.) Counts II to VII of the information charge petitione...
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Defendant was charged by information in four counts, with (1) kidnapping for the purpose of robbery, subjecting the victim to bodily harm while armed with a deadly weapon; (2) armed robbery; (3) attempted kidnapping, while armed with a deadly weapon; and (4) kidnapping, while armed with a deadly weapon. Defendant pleaded not guilty. At the close of the evidence count 2 was dismissed. Verdicts w...
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This is an appeal from a judgment for plaintiff Arthur Klinell in an action for damages for wrongful attachment 1 brought against Richard D. Shirey who was the plaintiff in a prior action, and against Earl Hightower, Gene E. Gregg and David M. Garland, who were attorneys of record for Shirey in that action. By jury verdict, damages in the sum of $8,879.04 were awarded against all def...
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George E. Carroll and his wife, Anne D. Carroll, brought this action against H. H. Chapman and Katherine Chapman, his wife, to secure rescission of a contract for purchase of the Hornbrook Water Company and for damages. The lower court held for the Chapmans and the Carrolls have appealed. Marilyn Dungey, executrix of the estate of H. H. Chapman, deceased, has been substituted as a defendant and r...
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This is an action to recover damages for injuries allegedly sustained by the plaintiff as a result of the negligent operation of an automobile by the defendant Irey, a traffic officer, employed by the defendant City of El Cajon. In Goody v. City of El Cajon, 196 Cal.App.2d 6 [16 Cal.Rptr. 254], this court affirmed an order of nonsuit, dismissing the action as to the defendant Irey, and reversed a ...
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Defendants Yelcie Bynes, John Henry Lambert, Sam Rose and Nathaniel Ballard, Jr., were jointly charged by indictment with the robbery of C. S. Jasiewicz, the robbery and kidnaping for the purpose of robbery of Doris Craig, and five separate counts of the forcible rape of Doris Craig. After a trial by jury, defendant Bynes was found guilty of the robbery of Jaskiewicz; the kidnaping of Craig in vi...
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Two sets of brothers are the main actors here, one set being the intended victims of a burglary, the other, appellants convicted of that crime. The “victims” (it is ironic to call them so, in view of the result) were asleep in their room on the second story of a motel, at about 7 o ’clock in the morning. One of them (hereinafter called the victim) awoke to find a man, whom he identified as appella...
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Appellant was charged with attempted robbery, tried before the court without a jury, convicted, and appeals from the judgment. Since one of appellant’s contentions is that the evidence is insufficient to support the judgment we set forth the facts as they appear in the record. On April 30, 1962, at about 2:15 a.m., two patrons, one Harry Coater and the other Mrs. Bersell, left the Wishing Well ...
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This is an action for specific performance of a land sale contract, or in the alternative, damages. The trial court sustained the objection of defendants to the introduction of evidence and granted their motion for judgment on the pleadings. Judgment was entered for defendants and plaintiff appeals. On March 18, 1961, defendants signed a listing agreement with a real estate broker offering...
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Petitioners, were charged with, and convicted of, burglary; their appeal from the judgment of conviction is now pending in this court. They now petition for a writ of error coram vobis, alleging that, subsequent to their conviction, they have discovered, by reason of a con*292fession made by a fellow prisoner, that he had in fact committed the burglary of which they stand convicted. Apart from the...
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Plaintiff Sally Thompson is the widow of Irving Thompson. Irving was the son of Anna Thompson. Irving had named his mother as sole beneficiary of a group life insurance policy, the premiums for which were paid from his earnings. Irving and his mother also had a joint savings account and held federal savings bonds as joint tenants. Anna had placed her home in the joint names of Irving and herself....
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The defendant was charged with the offense of contributing to the delinquency of a minor in seven counts, i.e., violations of section 272 of the Penal Code; in the municipal court, pleaded guilty to the offenses set forth in three of these counts; by that court was certified to the superior court for hearing and examination to determine whether he was a sexual psychopath within the meaning of c...
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The defendant was charged with the offense of selling marijuana, i.e., a violation of section 11531 of the Health and Safety Code; entered a plea of guilty to the lesser and included offense of possession of marijuana, i.e., a violation of section 11530 of the Health and Safety Code; applied for probation; was sentenced to imprisonment in the state prison; and appeals from the judgment, seeking...
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Plaintiff appeals from a judgment, without a jury trial, in favor of defendants in an action for a real estate broker’s commission. Questions Presented 1. Was the sale to Island Farms Company under the option set forth in the Nomellini Farms agreement? 2. Should parol evidence have been admitted ? Record . Plaintiff, a real estate broker, filed a complaint against United California Bank...
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Defendant Gary Edward Atwood was found guilty by a jury of burglary of the first degree. (Pen. Code, §§ 459, 460, subd. 1.) Upon defendant’s arraignment for judgment, the court on its own motion modified the verdict to a finding of guilty of burglary of the second degree (Pen. Code, § 460, subd. 2) and sentenced defendant to the state prison. Defendant appeals from the judgment. On January 16, ...
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Appellants, the Rincon Valley Union School District of Sonoma County and its Board of Trustees (hereinafter referred to as the District), contracted with Frank S. Glover, doing business as Glover Construction Company (hereinafter referred to as the contractor), for the construction of the Spring Creek Elementary School. The agreement established August 29, 1958, as the completion date and conta...
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This appeal following a jury trial for personal injuries in which plaintiff prevailed is brought by one defendant to reverse judgment for a codefendant on the contention that an erroneous instruction may have cost the appellant its right to contribution. The facts material to the case are as follows: During the 1960 reconstruction of Highway 101 near Santa Rosa, Philip Auchard, a state hig...
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Plaintiff’s original complaint sought to condemn certain land owned by defendants for use as a school site. Thereafter, an amended complaint changed the location *348 of the land to be condemned to another site, also owned by defendants. The parties agreed that such an amendment constituted an abandonment of the proceeding as to the original site (County of Kern v. Galatas, 200 Cal.App.2d...
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Petitioners by writ of review attack an order made by respondent commission granting to respondent Gomez a permanent disability rating, additional temporary disability benefits, and further medical treatment.1 The hearing before the referee which resulted in this order was held on April 16,1963. On April 9, 1963, the attorney for Gomez had him examined by a Dr. Citret. This doctor had never seen G...
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Appeal by plaintiff from an order setting aside a judgment in condemnation, and allowing attorney’s fees. Plaintiff obtained a condemnation judgment which provided that upon payment of $4,500 to defendant owners, the plaintiff should become the owner of the land. Upon defendants’ appeal therefrom, the judgment was affirmed, and the remittitur was filed in the superior court on July 16,1962. On Sep...
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The complaint alleges that defendant corporation became indebted to plaintiff Stephen Hayes for building construction services rendered at the special request of defendant, in the reasonable value of $7,500, and that no part thereof has been paid. The eighth alleged affirmative defense is that the alleged cause of action is barred by the statute of limitations, section 339, subdivision 1, of the C...
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Defendant was accused in count 1 of attempted robbery; in count 2 of kidnaping; in count 3 of rape; and in count 4 of kidnaping for the purpose of robbery. In a jury trial he was convicted on the first three counts, and was acquitted on the last count. He appeals from the judgment. Martha, the victim of the alleged offenses, testified that: On May 15, 1962, about 10:15 p.m., after she had alighted...
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In a prosecution for the crime of robbery, the defendant was found guilty by a jury of robbery of the second degree. He has appealed from the judgment and has *377 attempted to appeal from the nonappealable order denying his motion for a new trial. A statement will be made of the evidence in the light of which his contentions must be considered. Eva Dunlap testified that she worked as a clerk...
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Defendant appeals from a judgment entered upon a jury verdict finding him guilty of violating Penal Code section 245, subdivision (b) (assault with a deadly weapon upon a peace officer). Two prior felony convictions were admitted. At defendant’s request, upon advising the court that he was presently serving time in prison and was not eligible for probation, sentence was immediately pronounced com...
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The defendant Charles Lee Smith appeals from a judgment of conviction for the crime of robbery of the second degree. A summary of the evidence is as follows: Shortly after midnight on February 8, 1963, Gary Shadel, part owner of the Yosemite Liquor Store in Madera was working on his books in the back room of the shop. When he heard the door of the establishment open, he came forward to the sale...
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Defendant appeals from judgment of conviction after jury trial of violation of section 211, Penal Code (robbery with prior convictions). Questions Presented 1. Was defendant deprived of due process by the discharge of his attorney during the trial and the refusal of the court to appoint another attorney ? *397 2. Insufficiency of evidence. 3. Was there an unlawful search and seizure ? ...
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The plaintiff appeals from a judgment of dismissal sustaining the defendants’ general demurrer to her complaint for malicious prosecution, without leave to amend. The sole question is whether the complaint sets forth sufficient facts to state a cause of action. The complaint alleged that the plaintiff, Katherine Ferraris, was engaged in litigation concerning the possession of certain property w...
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Plaintiff Mildred Mundt brought this action to recover damages for personal injuries allegedly caused by the malpractice of defendants Dr. Sheldon Margen, Dr. Rubin Lewis, Dr. Paul Schneider, and Alta Bates Hospital. The complaint, as modified by the pretrial conference order, alleged that plaintiff, while a patient at Alta Bates Hospital on April 3, 1959, underwent certain operative procedures...
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Thelma D. Zappettini, the widow of the decedent, and Norma Perroggiaro and Hazel Suaeei, the sisters of the decedent, have filed cross-appeals from a decree determining heirship. The decedent, William J. Zappettini, died on May 2, 1961, leaving as his sole heirs-at-law his widow, Thelma D. Zappettini, and his two sisters, Norma Perroggiaro and Hazel Suaeei. On May 23, 1961, his will, dated...
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Appellant, having been convicted of robbery, makes several points which can be considered briefly with whatever statement of facts is required under the separate points, and without recitation of the long story related by the witnesses. Appellant’s contentions and our decisions are: 1. That the information did not state that the robbery was committed with a deadly weapon, but the verdict was of...
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Defendant United States of America appeals from a summary judgment quieting plaintiffs’ title to real property upon which defendant claimed a lien for unpaid taxes. The first cause of action of the complaint alleges that: Since December 26, 1957, plaintiffs have been the owners of certain real property situated in Los Angeles, California. Defendants’ claim to an adverse interest in the property is...
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Defendant appeals from the judgment entered following a jury trial which resulted in his conviction upon charges of eight separate robberies. He was found to have been armed with a deadly weapon in each instance. The attorney first appointed by this court to represent defendant upon this appeal advised us that he had not been able to find any prejudicial error in the record. The attorney genera...
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Defendant appeals from the judgment of conviction which concluded a nonjury trial in which he was charged with the crime of assault with intent to commit murder in violation of section 217 of the Penal Code. As set forth in his opening brief, “Appellant’s only point on appeal is that the evidence is insufficient to establish the intent necessary to section 217, Penal Code,” and that he “should ha...
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These actions, consolidated for trial, involve a dispute between two sisters, Cenovia (Cenovia Gamboa Madero) and Julia (Julia Gamboa de Rieras), a parcel of real property held by them as joint Cenovia based her action on an oral agreement with Julia whereby Julia agreed to sell to her all of her interest in the property for the sum of $3,500. In order to raise the money to pay off Julia’s interes...
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By information, defendant was charged in three counts with attempted grand theft from the persons of three John Does on or about November 24, 1961. The information also alleged two prior felony convictions, attempted grand theft from the person and grand theft. Defendant pleaded not guilty and denied the prior convictions. Later, however, out of the presence of the jury, defendant admitted the pr...
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Defendant pled guilty to a charge of violation of Penal Code section 487. His request to withdraw that plea was denied and the judgment against him (order granting probation) was affirmed by this court by an opinion filed on October 4, 1963. (People v. Perry, 220 Cal.App.2d 841 [34 Cal.Rptr. 10].) No petition for rehearing, or for hearing in the Supreme Court, was filed and remittitur duly issued....
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In a prior divorce action, plaintiff obtained an interlocutory decree of divorce on May 9, 1961. There, the court held that a trailer park in San Ysidro was held by the parties as joint tenants. Thereafter, plaintiff wife filed this action for partition, for waste, and asked for the appointment of a receiver of the property. On June 1, 1962, the court rendered an interlocutory decree in this actio...
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In July 1961, the defendant was charged with, tried by a jury for, and convicted of the offense of receiving stolen property, a violation of section 496 of the Penal Code. He applied for and obtained probation by an order dated August 22, 1961. The term of probation was five years. Imposing of sentence was suspended accordingly. The conditions of probation, among others, were confinement in a coun...
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Plaintiffs appeal from a judgment in favor of all defendants in a suit for declaratory relief, and in favor of cross-complainants for the restitution of premises and treble damages for unlawful withholding of possession. Chester D. and Angie M. Haberle, husband and wife, owned residential property in the “Re-subdivision of Thousand Oaks” at Modesto; they listed it for sale with Campbell Re...
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Plaintiffs appeal from an adverse judgment in a declaratory relief action to have a deed absolute on its face declared to be a mortgage. The sole question raised is whether the evidence supports the findings of the trial court. *489 Plaintiffs purchased 160 acres of unimproved real property in Fresno County from Bank of America, guardian of the estate of an incompetent person. The...
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The parties intermarried on February 27, 1937, and separated on April 12, 1961. Plaintiff commenced this action for divorce on June 30, 1961, charging extreme cruelty in general terms. Defendant cross-complained on the same ground. Defendant is a lawyer and represents himself. An interlocutory decree of divorce was granted to plaintiff on June 21, 1962. Defendant has appealed therefrom. The tri...
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Charged with burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496), defendant was found guilty by jury only of the second count. The burglary count was dismissed, he was sentenced on the receiving charge, and appeals. Defendant was arrested when he attempted to sell a stolen watch in a pawnshop. His use of a fictitious name on the bill of sale form provided by the pawnbroker...
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Defendant was charged in Count 1 with intercepting a telephone communication between “Sylvene D. Happennie and persons at the Bank residence in Los Angeles.” In Count 2 he was charged with intercepting a telephone communication between Arthur W. Happennie and Ralph Walsh. He was found guilty of both counts. Defendant has appealed from the judgment. He has also attempted to appeal from the order de...
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Plaintiffs-respondents, attorneys in private practice, were employed by Cedar Creek Elementary *522School District hy contract to oppose proceedings by which it was sought to have a portion of the district carved out and included within the boundaries of an adjoining district. The contract provided for studies, preparation of data, representation of the district by the attorneys in a hearing befor...
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Appellants (whom we shall refer to collectively as “Pappas”) filed a notice of appeal from adverse judgments in superior court actions No. 13028 and No. 13046. These actions had been consolidated for trial. Pappas’ brief on appeal attacks only the judgment in No. 13046. We regard the appeal from the judgment in No. 13028 as having been abandoned, and the appeal in that action is dismissed. Papp...
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Plaintiff, respondent, appellant and cross-defendant Arthur Stegmann (hereinafter referred to as plaintiff) and Ms wife brought an action against defendant The Dinnerhorn Corporation, defendants, appellants and cross-appellants Woodrow W. Holder and Betty Bob Holder, and defendant, appellant, cross-appellant and cross-complainant Floyd Dean (hereinafter referred to as defendants) for damages for c...
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A jury found defendant guilty of violating Penal Code section 459 (burglary), and not guilty of violating Penal Code section 496 (receiving stolen prop *539 erty), as charged in a two-count information. Defendant appeals from the judgment and order denying a new trial, contending (1) prejudicial error in the judge conversing with and instructing the jury out of court in the absence of defendant...
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Defendant appeals from a conviction, after trial by jury, of possession of narcotics in violation of section 11530, Health and Safety Code. He was acquitted of another count charging violation of section 11531, Health and Safety Code, furnishing a narcotic. One Alvarez, an agent employed by the Kern County Sheriff’s Office, testified that while he and defendant were in an automobile, defendant ...
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In this wrongful death action, the sole question for our determination is whether plaintiffs were unlawfully denied a trial by jury. We have concluded that they were and the judgment rendered by the court in defendants’ favor must be reversed. Plaintiffs commenced the instant action in the Count)’ of Alameda on June 6, 1960, against defendants Rowe and the County of Sonoma, hereafter refer...
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The Alcoholic Beverage Control Appeals Board (hereinafter called the board) appeals from a superior court judgment ordering that a peremptory writ of mandate issue compelling the board to vacate an order denying the motion of the Department of Alcoholic Beverage Control (hereinafter called the department) to dismiss the appeal of Willie and Beatrice Ward (hereinafter called the Wards) from a de...
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A jury found three defendants guilty of robbery (Pen. Code, § 211) in the first degree. The trial court reduced the degree to second, and sentenced Gomez and another to prison. Only Gomez appeals. The victim, Taylor, testified that: he met appellant, the two codefendants and a fourth man not known to Taylor in a bar; a defendant suggested that they go to his home to play cards; they left in app...
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Defendant was charged with burglary (Pen. Code, § 459) in Counts 1, 2 and 4 of an information, and with grand theft of an automobile (Pen. Code, § 487, subd. 3) in Count 3. It was also alleged that he had suffered a *577 prior felony conviction of robbery. Defendant’s counsel made a motion under section 995 of the Penal Code as to Count 4 only. This motion was denied. The ease was submitted on ...
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Defendant appeals from the judgment entered following a jury trial which resulted in his conviction of the crimes of attempted burglary and violation of section 10851, Vehicle Code (felonious taking of a motor vehicle) . The evidence supporting the judgment may be summarized as follows: Appellant was positively identified as the man seen attempting to break into a market in the City of Los Angeles...
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The Claremont Taxpayers Association seeks by this action in declaratory relief to nullify the comprehensive city zoning ordinance of the City of Claremont adopted March 31, 1958, being ordinance No. 599. Irregular *591 ity is asserted in the proceedings for the adoption of the ordinance. The plaintiff asserts that the underlying purpose of the adoption of the ordinance is to redistriet large ...
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The parties hereto are husband and wife; were married in Spokane, Washington, on September 6, 1939, and separated June 5, 1959; at the time of separation were residents of the State of Washington, where they had resided the major part of their married life; during marriage acquired real property located in that state; and were the parents of four daughters who, respectively, were 19, 16, 15 and...
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Petitioners Bella Vista Development Co. and Bruce A. Werlhof seek a writ of prohibition restraining the respondent superior court from taking further proceedings in the hereinafter described civil action now pending therein. The sole question for our determination is whether said action was brought to trial within five years after it was filed and should therefore be dismissed by the court purs...
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This is an appeal by defendants Frank J. and Nellie H. Hyman from a judgment quieting plaintiff Helen G. Haun’s title to a 4-acre parcel of land and awarding her compensatory and punitive damages for trespass upon said property. Ralph W. Todd, the father of Helen G. Haun, was formerly the owner of the real property which is the subject of this litigation. After his death, his administratrix con...
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The principal question is, which of two insurance companies is liable for damages resulting from a collision of vehicles; and there is a subordinate question of the damages covered. Each of the insurance companies which are parties to the ease believes that the party claiming to have been insured, Vernice Murphy, was probably insured, but by the other carrier. Facts In May 1959, M...
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Appellant Raddatz attached personal property alleged to belong to the debtor Sancal Lumber Company, a corporation, hereafter referred to as Sancal. Hedgpeth and Daniel filed a third party claim, alleging ownership of the attached property. After hearing, the trial court entered its judgment in favor of third party claimants. No findings were made by the trial court, and none were required in th...
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This appeal requires construction of an ambiguous code section governing relief from forfeiture of bail (Pen. Code, § 1305). Following Rolley’s indictment and arrest, bail bond of $4,200 was posted by the surety company which is respondent here. Rolley failed to appear for trial December 21, 1962, and on that day his bail was ordered forfeited. He was arrested by federal authorities in Albuquerqu...
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In this eminent domain action the defendants (owners) appeal from a judgment, based upon a verdict, awarding $31,000 as compensation for the property taken. The appraiser, called as a witness by appellants, gave testimony regarding his qualifications as an appraiser, his investigations as to property values in the vicinity of the subject property, and rezoning requirements and variances. He testif...
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Defendant was accused of unlawfully selling heroin. He denies an allegation of the indictment that he had been convicted previously of violating section 11500 of the Health and Safety Code. In a jury trial he was con*649victed; and the allegation of prior convictions was found to be true. He appeals from the judgment. Appellant contends that the evidence was insufficient to support the judgment; a...
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Louis Nowell, one of the petitioners herein, and Phill Silver, real party in interest, were candidates for the office of councilman in the City of Los Angeles at the election of May 28, 1963. On June 6, 1963, Silver filed an action against Nowell and a number of others, alleging that in the course of the campaign defendants published certain material that assertedly libeled him. Subsequently Si...
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Appellant appeals from the judgment 1 convicting him and a codefendant of the crime of first degree *660 burglary. He admitted the charge that he had suffered a prior burglary conviction. It appears from the evidence that at approximately 2:15 a.m. on July 24, 1962, Mr. and Mrs. Clark were awakened by noises in their bedroom. Mrs. Clark heard a drawer in the bedroom being closed and then sa...
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Plaintiffs brought this action to quiet title to certain beach property fronting on the Pacific Ocean in the Santa Monica Bay area, contending that conditions contained in the deed through which the City of Los Angeles (City) acquired title had been violated by the City, resulting in a reversion of the property to the plaintiffs as successors of the original grantors. Upon a trial of the action...
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After sundry amendments and consolidations, defendant ultimately went to trial on an information charging two counts of burglary, with six prior felony convictions. He pled guilty to count one, but denied the prior convictions. The second count was dismissed, the court found the prior felony convictions to be true, denied probation, fixed the degree of crime as burglary in the second degree, an...
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Demurrer to plaintiff’s amended complaint was sustained without leave to amend. Judgment of dismissal followed. We hold this was error but unprejudicial for reasons which will be developed below. The amended complaint pleaded ownership by plaintiff-appellant water district of four appropriative water rights. (Water Resources Applications Numbers 15204, 15205, 15563 and 15674.) It alleged these ...
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Plaintiff appeals from judgment entered upon jury verdict for defendant in this personal injury action. His sole contention is that the evidence is insufficient to sustain the verdict. Plaintiff drove south on Presidio Avenue in San Francisco and crossed California Street. Defendant drove north on Presidio moving slowly while he signaled for a left turn into California. The ears collided at about ...
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This is an appeal by plaintiff Union Bank (hereinafter referred to as “Union”) from a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend on the sole ground that Union did not have capacity to sue. Defendants’ demurrer insofar as it related to Union’s coplaintiff Hancock Acceptance Corp. (hereinafter referred to as “Hancock”), was overruled and Hancock i...
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This is an appeal from an interlocutory judgment of divorce (a divorce was granted to each of the parties, custody of the children was awarded and some of the property was distributed) “and from the whole of said judgment. ’ ’ Plaintiff wife brought an action in divorce against the defendant husband. She alleged among other things the usual *693 matters and conditions and then set forth that ...
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This is an appeal by the defendant husband from a separate order made after entry of the interlocutory judgment of divorce (wherein the plaintiff wife was granted costs and counsel fees on the appeal) and from an order denying the husband’s motion for leave to sell personal property (the three horses of the parties). On March 11, 1963, there was filed a notice of motion on the part of the wife’s c...
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This is an appeal by the City of Santa Monica from an order granting plaintiff’s petition for leave to present a claim to the City of Santa Monica pursuant to Government Code, section 716 (as the same existed in March of 1963). Respondent herein did on March 22, 1963, file a verified petition (dated March 15, 1963) in the Superior Court of Los Angeles County wherein it was set forth among ...
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This is an appeal by plaintiff from that portion of an amended interlocutory judgment of divorce which decreed that certain real property located in Texas was the community property of the parties. The parties concede that in the ease at bar the determination of whether the subject property is community or separate property is controlled by Texas law. (See Commissioner of Internal Re...
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Defendant’s demurrer to the three purported causes of action in the first amended complaint (except as to a portion of the third cause of action) was sustained without leave to amend. Plaintiff appeals from the judgment of dismissal entered upon the order sustaining the demurrer. The first cause of action alleges: Defendant Lampe is the executor of the will of Charles W. Boyle, deceased. Decedent ...
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By an information filed January 4, 1961, both defendants were charged in Count I with a violation of section 26104, subdivision (a), Corporations Code (selling a security without a permit) and in Counts III and IV with grand theft; defendant H. Gael Baldwin alone was charged with grand theft in Count II. After a trial by jury defendant H. Gael Baldwin (hereinafter referred to as “Gael”) was fou...
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Defendant was found guilty of a violation of section 337a, subdivision 2, Penal Code (occupying a house with books, papers, apparatus and paraphernalia for the purpose of recording and registering horseracing bets). He appeals from the judgment of conviction. Acting on information from a sergeant in administrative vice that by dialing a certain telephone number bets could be placed on numbers a...
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In Count 1 of an amended information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of Penal Code section 487, subdivision 3 (grand theft, auto). Count 2 of the information charged a violation of Vehicle Code section 10851. Two prior felonies were also alleged. Defendant pleaded not guilty and waived trial by jury. Pursuant to stipulation the matter...
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This is a proceeding in eminent domain, in which certain defendants have appealed from the judgment. The sole issue here is whether the taking is for a public use. Acting under the authority conferred by section 5006 of the Public Resources Code, the Director of the Department of Natural Resources issued a declaration that public interest *745and necessity required the acquisition of the subject p...
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Defendant was charged in four counts with violations of Penal Code section 476a (issuing cheeks without sufficient funds). Counts one and two charged defendant with issuing checks of $150 and $146.16 respectively. In counts three and four, dealing with checks of $27.50 and $15 respectively, it was also alleged that before the commission of the offense set forth in the count, defendant was convi...
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The City of Del Mar brought this action to determine the validity of assessment proceedings for a proposed sewerage improvement district. (See Sts. & Hy. Code, § 5265; Code Civ. Proc., §§860-870.) The defendants challenged the proceedings upon the ground (1) that a valid protest by affected property owners had not been overruled as required by law; and (2) that, in ordering the proposed improvemen...
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For services rendered as an appraiser, plaintiff alleged that defendant Granz, individually and in his representative capacity, was indebted to him in the sum of $15,000. The indebtedness was pleaded by use of the common counts. The court found in plaintiff’s favor as to count one of the complaint (alleging an open-book account) and against Granz as administrator of his mother’s estate.1 Necessary...
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This is an action for declaratory relief wherein the plaintiff sought recovery of an acre of land which he claimed the county agreed to give him in return for *767the construction and transfer to it of a street or, in the alternative, the construction expenses so incurred and the value of the land occupied by the street. The case was tried upon a purported stipulated set of facts presented to the ...
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Appellant is plaintiff in an automobile accident case. His vehicle was struck by a huge truck which was making a left turn into the street on which appellant’s car was, appellant’s vehicle being faced in the opposite direction to that of respondents’ rig after the latter completed the turn. Specifically, appellant’s car faced north, the truck turned from east at the intersection to south. It is un...
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Plaintiff (appellant) sued, among others, Continental Capital Corporation (hereinafter referred to as CCC) and attached, as property belonging to it, $12,375 in escrow. Thereafter, Byron J. Walters (respondent) filed a complaint in intervention against all parties claiming to be owner of the funds. Meanwhile, in the main action, plaintiff dismissed all defendants except CCC; judgment was entered a...
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The plaintiffs, tenants of a building owned by the defendants, have appealed from a judgment for the defendants in an action to recover for damages to personal property caused by water. 1 The building was located at 1024 Santee Street in the City of Los Angeles. A fire which originated in a refrigerator on the seventh floor caused three heads of the fire sprinkler system to open. The water ran ...
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Defendants who were purchasing a vacant lot on contract agreed to sell the property to plaintiffs for $6,000. The agreement was evidenced by the instructions of the parties given to an escrow holder. May 29, 1957, plaintiffs paid into escrow $200, agreed to pay $300 more June 1st, and within 30 days to pay in $2,972 and give a note and trust deed for the balance of $2,528. Defendants agreed to on...
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Defendant was charged with a violation of Penal Code section 244, assault with a caustic chemical. The information also alleged two prior felony convictions, felonious assault and violation of Penal Code, section 447a. Defendant pleaded not guilty and denied the prior convictions. Trial was by the court and by stipulation the cause was submitted upon the proceedings had at the preliminary hearing...
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This appeal originated in a medical malpractice action commenced by plaintiff- appellant against Doctors Joseph A. Logan, Curtis Lee Price and Frank J. Puerta, a copartnership practicing medicine, defendants-respondents. Dr. Puerta is the actor; Doctors Logan and Price are joined on a theory of partnership liability. The word “defendant” as used herein shall refer to Dr. Puerta. The issues rais...
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Defendant was charged with a violation of section 459 of the Penal Code (burglary), it being charged that, on April 1, 1962, he entered a dwelling with the intent to commit theft. Two prior felony convictions were alleged—one in 1956 for petty theft with a prior conviction of petty theft, and one in 1958 for petty theft with a prior conviction of a felony. Defendant entered a plea of not guilty an...
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Appellant was convicted of attempted burglary after trial by a jury. The conviction resulted from a sequence of events commencing about 3 a.m. February 4, 1963, near a drive-in located in the City of Modesto. A fence separated the drive-in from the home of Mr. Weldon, whose driveway ran between the fence and his house. An automobile entered the driveway about 3 a.m. and when Weldon turned on a li...
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Although this is a proceeding in eminent domain, the sole dispute concerns title to land. In 1927, appellant Younger received a gift deed describing the granted land as bounded on the northwest by Branciforte Creek. The creek’s course, as shown by a map made in 1910 and aerial surveys made in 1957, had shifted to the southeast by as much as 50 to 80 feet. The area between the two creek cou...
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Petitioner is the sole defendant in an action seeking her removal as trustee of a testamentary trust. Complaint was filed in San Francisco, and petitioner moved for change of venue to Orange County, where she lives. The motion was denied, and petitioner seeks mandamus (Code Civ. Proc., § 400). Decree of final distribution appointing the trustees was entered in San Luis Obispo County, but the proce...
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In each of five counts of an information the defendant was charged with the crime of issuing a check without sufficient funds in violation of section 476a of the Penal Code. In a trial by jury the defendant was found guilty as charged in the first four counts. The fifth count was dismissed. The punishment imposed was imprisonment in the state prison for the term prescribed by law. The defendant h...
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Prior to the events herein involved, the Los Angeles Fire Department had (so far as herein involved) three ranks or grades: fireman (Code 2111), auto fireman (Code 2121) and engineer of fire department (Code 2131). *838Petitioners had been duly appointed to, and held, positions as auto firemen.1 In 1960, the department, with the concurrence of the Civil Service Commission and of the city council, ...
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Defendant-appellant was convicted by a jury on a charge of burglary, second degree, in violation of Penal Code, section 459, after 61 minutes of deliberation. He was represented at the trial by Deputy Public Defender John Carroll. The evidence at the trial shows generally that about midnight on December 8-9, 1962, Deed’s Jewelry Store in Indio was burglarized and certain items of jewelry were take...
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The defendant has appealed from a judgment entered upon a jury verdict convicting him of violating Penal Code section 459 (burglary, first degree). The jury deliberated 25 minutes. The evidence at the trial revealed that brothers Arnold and Earl Oyan occupied an apartment in Blythe, California. They retired about 12:30 a.m. December 31, 1961, and on awakening early in the morning the back door of ...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with two counts of robbery in violation of Penal Code section 211. The information also charged a prior felony conviction. Defendant pleaded not guilty and denied the prior conviction. Subsequently, out of the presence of the jury, defendant admitted the prior conviction. The jury returned a verdict of gu...
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Appellant, Leo Don Garcia, one of three defendants, was charged in an information filed by the District Attorney of the County of Santa Barbara with the crimes of burglary and grand theft. The defendants were duly arraigned, counsel was appointed, and following their pleas of not guilty a jury trial was had in which verdicts were returned finding the defendants guilty as charged. Appellant’s motio...
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Gloria Kast brought this proceeding in mandamus to secure reinstatement to her position as a permanent employee of the appellant American Biver Junior College District, from which position she alleged she had been wrongfully dismissed at the end of the school year 1958-1959, and from which, as she further alleged, she had been wrongfully barred during the school years 1959-1960 and 1960-1961. The ...
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On this appeal by both defendants from judgments of second degree burglary after a jury trial and conviction, the sole contention is that defendants were convicted through the admission of evidence discovered and obtained by an illegal search of a motor vehicle. Appeals were also taken from the orders (1) denying probation and (2) denying defendants’ motions for new trial. Said orders are nonap...
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Plaintiff has appealed from a judgment, based upon a jury verdict, favoring defendants in his action for personal injuries incurred when he was run over by a cement truck. He contends: (1) that the truck-driver was negligent as a matter of law; (2) that he himself was not eontributorily negligent as a matter of law and the court erred in instructing the jury on this issue; (3) that the court fail...
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Billy Webster and Gerald Larson were living in a second-story apartment at 3730 Eighth Avenue, San Diego, on September 2-3, 1962. Webster was asleep on a couch in the living room and Larson was in the bedroom. The rear door of the apartment was left open for better air circulation. About 5 a.m., Webster was awakened and saw a man standing in the room near the rear doorway. Webster shouted, “Who is...
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Defendant was convicted of grand theft of an automobile and appeals from the judgment. * The sole question is whether there was a sufficient transfer of property to support the conviction upon the theory of theft by false pretenses. The evidence was sufficient to allow the jury to find that the transaction occurred as follows: On November 19, 1961, an automobile dealer named Marcel Sap agre...
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On March 26, 1958, appellant was granted an interlocutory decree of divorce on her cross-complaint against respondent. The decree awarded her custody of the minor daughter of the parties, and directed the husband to pay to her $150 per month for child support and $200 per month as alimony. The final decree of divorce, carrying forward these same provisions, was duly entered on July 9, 1959. On ...
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This is an appeal from an order denying probate of a will in a contest tried before the court sitting without a jury. The court made findings as follows: That when the will was made the testator was afflicted with senile dementia and was not competent to make a will; that the decedent was subject to irrational delusions and irrational fears with respect to his son and sole heir; and that the delus...
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Defendant-appellant was charged by indictment with murdering his wife, Mildred F. Yuhas, on July 22, 1962, in violation of Penal Code, section 187. He was also charged with two prior convictions of a felony, attempted robbery with firearms and murder in the second degree. He served separate terms in prison therefor. He pleaded not guilty to the charge and admitted the two prior convictions. He wa...
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The City Council of the City of Santa Cruz appeals from a judgment in a mandate proceeding commanding the council to take all steps required to rescind a vote of the council refusing to reclassify respondent’s property for zoning purposes and to take all steps required to make effective, by ordinance, the reclassification requested by respondent. Johanson, respondent, applied to the city planni...
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Petitioner is charged with misdemeanor manslaughter (Pen. Code, § 192, subd. 3(b)). Upon denial of his request for pretrial discovery in the municipal court, he sought mandamus in the superior court. After hearing, alternative writ was discharged and peremptory writ denied. Petitioner appeals. A truck driven by petitioner collided with a Southern Pacific train. Petitioner’s fellow employee, rid...
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222 Cal. App. 2d 75 (1963) THE PEOPLE, Plaintiff and Respondent, v. LUTHER JAMES DAVIS, Defendant and Appellant. Crim. No. 7953. California Court of Appeals. Second Dist., Div. One. Nov. 5, 1963. Virgil V. Becker, under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and David M. Rothman, ...
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222 Cal. App. 2d 79 (1963) THE PEOPLE, Plaintiff and Respondent, v. ROBERT GUTIERREZ LOVIO, Defendant and Appellant. Crim. No. 8674. California Court of Appeals. Second Dist., Div. One. Nov. 5, 1963. David C. Marcus for Defendant and Appellant. *80 Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and David M. Rothman, Deputy Attorney General, for Plaintiff and Re...
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This is an appeal from a judgment of conviction on a charge of violating section 11500, Health & Safety Code (unlawful possession of heroin). In an information filed in Los Angeles County on August 15, 1962, appellant was charged with unlawfully possessing heroin on or about July 18, 1962. A jury trial was waived and appellant was found guilty as charged. A motion for a new trial was denied. Proce...
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On this appeal from an adverse judgment rendered on a jury verdict in a personal injury action, plaintiff, Lester R. De Ornellas, asserts that erroneous and prejudicial instructions were given to the jury pertaining to the effect of speed in excess of the prima facie speed limit (Veh. Code, § 511)1 The facts are as follows: A motorcycle owned and driven by the appellant ran into the right side of ...
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In this divorce action the appeal is from the interlocutory judgment and from an order made on the day before trial denying defendant’s motion for a traveling allowance. The record supports the following statement of facts: On January 10, 1961, plaintiff, a widower aged 74, married defendant, a widow aged 66, at her home in Kelso, Washington. Por the next 45 days they resided together in plaintiff...
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Defendant has appealed from a judgment of conviction of possessing a firearm by a felon in violation of Penal Code, section 12021. In 1949 defendant pleaded guilty to two counts of second degree burglary and was placed on probation; on September 21, 1950 he went into military service where he served for 21 months; on February 16, 1951 his probation was terminated and he was discharged under Pen...
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In this action for damages for wrongful death, the jury returned a verdict in favor of plaintiffs and against the defendant Lawrence A. Sauve in the sum of $46,000. Sauve appeals from the judgment entered on the verdict. The same jury returned a verdict in favor of the defendant Henry L. Ratliff and against the plaintiffs. Plaintiffs have not appealed from the adverse judgment entered on this v...
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222 Cal. App. 2d 126 (1963) GLORIA MAE HILSENBERG LEVERETT, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ERNEST B. HILSENBERG, Real Party in Interest. Civ. No. 21409. California Court of Appeals. First Dist., Div. One. Nov. 7, 1963. Brown & Taber and Jacqueline Taber for Petitioner. No appearance for Respondent. Stewart & Tuttle and Robert W. Tuttle for Real Part...
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Appellant brought an action to recover the costs of suppressing fires alleged to have been negligently and unlawfully set by respondents. A demurrer was sustained without leave to amend and appellant appeals. The facts are those as alleged in the complaint. Appellant concedes that there are no additional or different facts which could be alleged upon which it could be shown that sustain *153 ...
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The plaintiff has appealed from an order dismissing an information under Penal Code section 995, which provides that an information must be set aside upon motion where “. . . the defendant had been committed without reasonable or probable cause. ’ ’ Officers were investigating a known narcotics user named Ethel, and while talking to her on a public street in the City of San Bernardino about 9:30 p...
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222 Cal. App. 2d 159 (1963) THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DESIRE BELENGER, Defendant and Appellant. Crim. No. 4306. California Court of Appeals. First Dist., Div. One. Nov. 8, 1963. Neal L. Petersen, under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, Albert W. Harris, Jr., and Barry L. Bunshoft, Deputy Attorneys G...
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222 Cal. App. 2d 168 (1963) SYRIL LERNER, Cross-complainant and Appellant, v. PHILIP S. EHRLICH, Sr., et al., Cross-Defendants and Respondents. Civ. No. 20976. California Court of Appeals. First Dist., Div. Three. Nov. 8, 1963. Goldberg & Brandis and Daniel T. Goldberg for Cross-complainant and Appellant. Thomas E. Feeney for Cross-defendants and Respondents. SALSMAN, J. [1a, 2a] The a...
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Appellant San Juan Unified School District of Sacramento County owns 30 acres of land upon which a school has been built. The southwest corner of the school property adjoins the northeast corner of respondents’ property. Appellant’s land is higher than respondents’ land. In its natural state water drains from appellant’s land to that of respondents. When the school was built appellant’s land was ...
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This is an appeal from a judgment rendered in an action for declaratory relief. Defendant, Martin J. Fuerst, insured by appellant Government Employ*183ees Insurance Co3npany, hereinafter called “Government,” sold an automobile to W. B. Seollan, Jr., and two other minors, all of them being 15 years of age. Respondent W. B. Seollan, Sr., father of Seollan, Jr., was insured by appellant Travelers Ins...
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The People appeal from an order of the Superior Court of Siskiyou County dismissing an indictment. On February 14, 1963, the Grand Jury *188 of Siskiyou County filed an indictment against respondent herein which, on its face, allegedly charged a violation of section 136% of the Penal Code of this state in that on or about January 30, 1963, respondent gave a bribe of $20 in money a...
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Petitioiaer-appellant Danny Arnold and one Joseph M. Valdez were charged jointly in two counts in the municipal court with violation of Penal Code, section 470 (forgery). The preliminary hearing was set for January 3, 1963. At this hearing, the People were unable to proceed. The transcript of the proceedings in the municipal court shows the presence of defendant Arnold, his attorney and the deput...
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Defendant-appellant Franklin Brown, Jr. and his codefendant Clemmie Lee Jones were charged with *198robbery while armed with a deadly weapon. Defendant Brown was also charged with two prior felony convictions: possession of an illegal weapon and grand theft. He pleaded not guilty to the charge and admitted the prior convictions. Both defendants were convicted by a jury of robbery in the first degr...
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This is an appeal from a judgment of dismissal entered after the trial court granted defendants’ motion for summary judgment in an action for specific performance of a contract for the sale of real property. The chronology of significant events is as follows: On April 11, 1962, plaintiff filed a complaint for specific performance of a contract to sell real property. Defendants fi...
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222 Cal. App. 2d 206 (1963) MELVILLE S. MILLER et al., Plaintiffs and Appellants, v. ERNEST J. WOOD et al., Defendants and Respondents. Civ. No. 26877. California Court of Appeals. Second Dist., Div. Two. Nov. 12, 1963. Loveless, Schauer & Clarke and Alan I. Epstein for Plaintiffs and Appellants. Frank S. Whiting and John Whyte for Defendants and Respondents. FOX, P. J. Plaintiffs, the...
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Plaintiffs Joseph and Berenice Tampico brought this action for rescission of an agreement for the purchase of certain real property and for damages against defendants Thelma and Ernest Wood, the sellers, and defendant Beck, a real estate broker. At a previous trial judgment was entered for defendants Wood against the plaintiffs, and for the plaintiffs against defendant Beck for damages. On appe...
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This appeal is from an order made March 7, 1962, reducing, on defendant’s application, the amount of alimony awarded plaintiff in an interlocutory decree of divorce from $1,000 to $800 a month. The record discloses that on May 20, 1960, an interlocutory decree of divorce was granted in favor of plaintiff in which she was awarded alimony in the sum of $1,000 a month during the lifetime of defendant...
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This is an appeal by the People from an order setting aside Counts I and II of an information charging defendant with violation of Penal Code section 4501.5, 1 which at all times pertinent to this appeal provided as follows: “Every person undergoing a sentence of less than life in a state prison of this State who commits a battery upon the person of any individual who is not himself ...
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This is an action on a common count for services rendered. Plaintiff had judgment against Arthur J. Fritz and two corporations. Judgment was in favor of another corporation defendant, and against all defendants on their cross-complaint. Defendants-cross-complainants appeal. Plaintiff is an industrial traffic consultant. Fritz is a customs broker operating individually and through Arthur J....
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This action to recover money obtained by fraud was tried before the court sitting without a jury. Plaintiff recovered a judgment, from which defendant has appealed. The transactions in question took place in May 1959. The parties married on May 2, 1959, and separated on June 11, 1959. The complaint alleges that on May 6, plaintiff husband withdrew $4,000 from his savings account and turned it over...
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Lester J. Geijsbeek and John H. Geijsbeek, doing business as Geijsbeek Truckers, appeal from an adverse judgment in an action to recover motor vehicle transportation license taxes assessed against them on the gross charges for transportation of logs and lumber owned by Six Rivers Pine Sales, a joint venture. The appeal is on the judgment roll. Accordingly, the facts are as found by the trial court...
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The trial court granted defendant’s motion to dismiss an information charging him with three counts of arson (violation of Pen. Code, § 447a). The grounds: that the evidence introduced at the preliminary hearing was insufficient to justify his being held to answer in that the corpus delicti had not been established; that therefore defendant had been committed without reasonable or probable cause ...
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— Plaintiff-appellant Gentry L. Looper filed this action on March 30, 1961, to quiet title, alleging that he was the owner of lots A-145 through A-148, inclusive, of an addition to San Ysidro in San Diego County, against defendants-respondents Lou Ellen Looper (his former- wife) and Walter Zumstein and wife, who it is claimed owned some interest therein adverse to plaintiff. It then alleged that ...
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Defendants appeal from a judgment in a personal injury action, after jury trial, in favor of plaintiff in the sum of $10,000.1 Question Presented. Does the evidence show as a matter of law that defendants ' premises were not negligently maintained ? Evidence. Defendants own and operate a coffee shop on leased premises in Vallejo, known as Twins Coffee Shop. Adjacent to the building in which the co...
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Defendant appeals from conviction, after jury trial, of violation of section 11503, Health and Safety Code (offering unlawfully to sell and furnish a narcotic to a person and delivering a substance other than such narcotic). 1 Sole Question Presented. Is section 11503 unconstitutional as being vague, uncertain and arbitrary? No. Evidence. Defendant does not contend that the evidence is ...
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Defendant, Ancil Statum, appeals from a judgment based on a jury’s verdict of guilty to charges of (1) robbery in the first degree; (2) grand theft (auto); (3) attempted murder; (4) two violations of section 12021 of the Penal Code (possession of a gun by an ex-convict) and a finding of prior conviction. Appellant was represented at the trial by the public defender’s office. Notice of appeal was f...
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Plaintiff sued for damage to Ms oil well, based upon negligence of the defendant, who had been hired by plaintiff’s employee Baker, to clean sand from the liner of the well and replace the tubing, rods and pump. It was claimed defendant failed to use safety elevators in the latter stages of pulling the tubing and rods from the well, as *278was customary, resulting in damage to the well when the ga...
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222 Cal. App. 2d 280 (1963) 35 Cal. Rptr. 53 THE PEOPLE, Plaintiff and Respondent, v. ELZIE LEE PLUMMER, Defendant and Appellant. Docket No. 1887. Court of Appeals of California, Fourth District. November 14, 1963. Lynn R. McDougal, under appointment by the District Court of Appeal, and Linley, Duffy & Shifflet for Defendant and Appellant. Stanley Mosk, Attorney General, and William E. James,...
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This is an appeal by Gail St. Aubyn Hickman, Anne St. Aubyn Newton, William Sloan Upton and John Roland Upton, Jr., some1 of the remaindermen of a trust created by the will of their grandfather, the late William R. Sloan, from the decree of settlement of the 28th annual account and report of the surviving trustee (hereafter referred to as the 1961 decree), modifying the 19th annual account and rep...
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This is an appeal by defendant Al Lee Jackson from a conviction of attempted robbery and three prior convictions of felony, The evidence, substantially without conflict, shows that the defendant entered the second-hand clothing store operated by Takako Yoshioka in Oakland, that defendant approached Mrs. Yoshioka and inquired whether she had shells for “32” guns; that she replied that she did not s...
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This is an appeal taken by the husband of the deceased from an order denying a petition for letters of administration by reason of the fact that petitioner was at the time of filing the petition under the age of 21. On January 3, 1963, Andrew Miller, the father of the deceased, Jessie Lou Gibson, filed a petition for letters of administration of his daughter’s estate. On January 24, 1963, James Mi...
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Defendant-appellant was charged in one count with bringing a narcotic substance into a jail, and in a second count with possession of a narcotic in a jail, in violation of Penal Code, section 4573.6. Represented by counsel, he entered a plea of guilty to the second count. The superior court entered judgment on March 30, 1961, committing defendant to state prison for the term prescribed by law, and...
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Defendants Manley Fuqua, Kenneth Hendricks, Clement Anderson and Joseph Wilmoth were jointly charged with illegal possession of heroin in violation of Health and Safety Code, section 11500. Defendant Fuqua was also charged with six prior convictions of felony, deféndant Hendricks with one, and defendant Anderson with one. Following a trial by jury, defendants Fuqua and Hendricks were convicted of...
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Defendant appeals from a judgment of conviction of second degree murder entered upon a jury verdict. On March 10, 1962, in response to an emergency call, an ambulance and a police officer were dispatched to an apartment occupied by appellant and his wife, Shirley. There they found Linda Jean Moody, a 16-month-old baby. She was unconscious and her breathing was irregular. The child was taken t...
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Defendant was found guilty by a jury of violating section 496 of the Penal Code, in that on May 25, 1962, he bought and received two outboard motors which he knew had been stolen. He appeals from the judgment of conviction. The motors were stolen by Richard Bailey and Kenneth Bailey, his 16-year-old brother. They transported them to appellant’s place of business, which he operated under the nam...
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This is an appeal hy defendant from a judgment entered in an action for the recovery of money after a trial by the court sitting without a jury. The chronology of significant events is as follows: On March 30, 1961, plaintiff filed a verified complaint for money asserting therein four causes of action. In the first cause of action (breach of contract) plaintiff alleged in substance that defendant ...
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This is an appeal by the defendant from a judgment of conviction of assault with intent to commit rape and from an order denying a motion for a new trial. Respondent has made a motion to dismiss the appeal upon the ground that it presents no meritorious question. In an information filed in Santa Barbara County the defendant was charged with the crime of rape by force and violence and against the w...
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In a nonjury trial defendant was convicted of robbery of the first degree, and it was also found that allegations of two prior felony convictions were true (burglary, and driving an automobile without consent of owner). He appeals from the judgment and the order denying his motion for a new trial. The People have made a motion to dismiss the appeal on the ground that the appeal is frivolous and la...
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Defendant was accused of assault with a deadly weapon. In a trial by jury he was convicted. Probation was denied and he was committed to the Youth Authority for the term prescribed by law. On July 19, 1962, Joe Delgado, 14 years of age, was visiting his grandmother who lived in an apartment house in Los Angeles. About 5:30 p.m., after he had knocked on the door of the manager’s apartment, a boy...
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This is an appeal from an order denying a motion for a new trial. The respondent has made a motion to dismiss the appeal upon the ground that it presents no meritorious question. In an information filed in Los Angeles County on July 12, 1962, defendant was charged with a violation of section 220, Penal Code (an assault upon a named female, under the age of 18 years, with the intent to have an act ...
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Defendant was accused of grand theft in that he did unlawfully take tools of a value in excess of $200, which were the property of Willie Smart. In a trial by jury he was found guilty. He was sentenced to imprisonment in the state prison. He appeals from the judgment. Appellant contends that the evidence was insufficient to support the verdict. A vacant lot and a shed at 12600 Wilmington Aven...
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In an indictment the defendant was accused of unlawfully selling heroin. It was also alleged that he had been convicted previously of forgery, a felony. In a non-jury trial he was adjudged guilty and the allegation of prior conviction was found to be true. He appeals from the judgment. Officer Keyes testified in substance as follows: That on October 23, 1962, about 12:30 p.m., while he and Officer...
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Defendants Hampton and Phill were convicted of selling heroin; Hampton appeals from the judgment. Subsequent to the filing of her opening brief the Attorney General moved to dismiss the appeal on the ground it is “sham and frivolous and lacking in appellate objective.” At the hearing on the motion both counsel waived argument and submitted the appeal on the merits and the motion to dismiss on the ...
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Belle Vista Investment Company, a corporation, sometimes known as Bella Vista Investment Company, has appealed from the judgment in each of three cases which were consolidated for the purpose of trial. In the ease of Leroy v. Bella Vista Investment Company (No. 26635), three causes of action were stated. In the first, recovery on a check for $6,611.32 was sought. In t...
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Action to recover difference between wages paid plaintiff and amounts payable under collective bargaining agreement. Although the facts are not in dispute the parties are poles apart as to the applicable rules of law to the facts hereinafter set forth. Leslie L. Waters (plaintiff herein), a member of The International Brotherhood of Teamsters, Chauffeurs, Ware-housemen & Helpers of America, was em...
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Plaintiff sued appellant, two individuals, and a number of fictitious defendants. His amended complaint alleged, in general, that plaintiff was in partnership with the two individual defendants, that such partnership had an oral agreement with appellant to act as its sales representative for a one year period beginning on October 31, 1962, and that appellant and the two individual defendants had ...
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This is an appeal from an order of the trial court determining heirship in a proceeding brought by appellant, Raymond Stivers, pursuant to section 1080 of the Probate Code. Frederick G. Gansner and Nellie C. Gansner were husband and wife. Frederick Gansner died intestate in November 1954, leaving both community property and property held in joint tenancy with Nellie. The property went to Nellie...
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Ben Iscoff appeals from a judgment denying his petition for a writ of mandate and discharging an alternative writ of mandate directing respondents Police Commission and Board of Permit Appeals of the City and County of San Francisco and the remaining respondents who are members respectively of said commission and board 1 to approve appellant’s application for a transfer of his pawnbr...
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222 Cal. App. 2d 413 (1963) MARIA G. BUSTAMANTE, Plaintiff and Appellant, v. DONALD M. HAET, Defendant and Respondent. Civ. No. 20697. California Court of Appeals. First Dist., Div. Two. Nov. 19, 1963. A. C. Velasquez for Plaintiff and Appellant. *414 Garcia, Wong, Haet & Dominguez, Bishop, Murray & Barry and Herbert Chamberlin for Defendant and Respondent. AGEE, J. Plaintiff appea...
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This is an appeal by defendant Emerson Byrd from an order granting plaintiffs Salvetti a new trial. Plaintiffs brought this action to recover damages for personal injuries and property damage incurred in an automobile collision allegedly caused by the negligence of defendant. The defendant answered, denying the material allegations of the complaint and raising the affirmative defense of contrib...
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In this appeal from a judgment of conviction finding him guilty of petty theft (Pen. Code, § 484) with a prior felony conviction (Pen. Code, § 667), 1 appellant, Harold Charles Moranda, in pro per., contends that he was erroneously convicted of a felony. The clerk’s transcript indicates that on February 28, 1963, an information was filed, charging the appellant with a felony, petty theft in v...
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Decedent’s divorced wife, Lillie, appeals from order setting apart probate homestead in fee to the surviving widow Eunice. Lillie was divorced from decedent in April 1954. The property here in issue was acquired by deed to him dated in June 1954. He married Eunice in February 1958, and died in April 1961. After the inventory was filed, Eunice petitioned for the setting aside of a home in Oakl...
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Appeal from a judgment for defendants following the sustaining of their demurrer to plaintiffs’ second amended complaint. Plaintiffs brought an action which they labeled as one for declaratory relief and breach of contract. The complaint alleged that plaintiffs and defendant King “orally agreed to a joint venture purchase” of certain real property for the purpose of erecting and operating a “bowli...
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The defendant was charged with three counts of issuing a check without sufficient funds, i.e., a violation of section 476a of the Penal Code; entered a plea of guilty on two counts thereof, and the third was dismissed; and made an application for probation, which was granted. No judgment imposing sentence was pronounced. Two years later he was rearrested and his probation was revoked because he h...
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This is an appeal by a divorced wife from a judgment in favor of her former husband and partner in his action for declaratory relief and contribution. Appellant contends that the trial court erred in denying relief on her cross-complaint for misappropriation of partnership funds. The material facts are as follows: On April 22, 1957, in contemplation of divorce, appellant and respondent entered *44...
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Petitioner seeks a writ of prohibition to prohibit his examination by a medical expert ordered by the court upon its own motion under section 1871 of the Code of Civil Procedure, unless the petitioner is permitted to have his counsel and a court reporter present at such examination. Petitioner, an attorney, commenced several actions against various insurance companies seeking to recover un...
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The present controversy arose out of a two-car head-on automobile collision which occurred on Sunday, January 24, 1960, at about 12:30 a.m. The locale of this unfortunate event was Balboa Boulevard near its intersection with Plummer Avenue in the San Fernando Valley in the City of Los Angeles. Joel I. Colin, the driver of one of the automobiles, and Alice A. McKee, a passenger in the other automob...
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Plaintiffs purchased real property from defendant, consisting of a five-unit apartment with a single-family residence in the rear, for the sum of $33,000. The apartments had been constructed as a three-unit improvement which defendant subsequently converted to a five-apartment combination without proper permission from the appropriate city authorities. Plaintiffs assert fraud on the part of def...
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Defendant was convicted in a jury trial of murdering her son-in-law. The offense was fixed as murder in the second degree. The jury found that defendant was sane at the time of the commission of the crime. Motions for a new trial and to reduce the verdict to manslaughter were denied. She appeals from the judgment of conviction and from an order denying her motion for a new trial. The following ...
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Defendant appeals from a judgment of conviction of grand theft in which a prior felony conviction was found to be true. The following is a summary of the evidence presented: Sol Halfan was an employee of the Morningside Medical Pharmacy in Los Angeles. On June 12, 1962, he was working behind the prescription counter in the pharmacy. The store’s receipts for deposit in the bank, were kept in a m...
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Defendant-appellant was charged with murdering (Pen. Code, § 187) Richard (Rick) Adams (count one) and James Benesh (count two) on July 6, 1962. He entered a plea of not guilty to both counts. A jury found him guilty of first degree murder on the first count and second degree murder on the second count, and fixed the penalty on the first count at life imprisonment. Defendant appeals from the judg...
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This is an appeal by plaintiff Kay Ellis from a judgment denying her damages in an action in which she sought and secured the issuance of a peremptory writ of mandate. Plaintiff brought this action to obtain the writ compelling the issuance of a building permit to construct a swimming pool, and, further, to obtain damages incurred as a result of defendants’ refusal to issue the permit at a...
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The plaintiff, Civil Service Employees Insurance Company, appeals from an adverse judgment in a declaratory relief suit brought to determine whether there is coverage under two automobile insurance policies issued to Richard Wilson and Frances M. Wilson of a newly acquired Ford automobile which collided with another car and gave rise to pending damage suits brought by the owners and occupants o...
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This is an appeal by plaintiffs from a summary judgment in favor of defendant “The Swiss Club Tell, an unincorporated association,” and from the order dismissing plaintiffs’ complaint. 1 Question Presented Was the trial court justified in granting a summary judgment in favor of defendant The Swiss Club Tell, an unincorporated association ? The Pleadings In th...
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We reverse the judgment here as to appellant Nellie Knipe because it rests upon a finding of fact which has no support in the evidence or the record. We reverse the judgment as to both appellants because they were *549 precluded from introducing any evidence on a pleaded cause of action upon which they relied for recovery. Appellants and respondent entered into a written contr...
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This appeal is taken by the People of the State of California from that portion of the judgment of the trial court denying the People’s prayer for recovery upon a surety bond underwritten by defendant and respondent Great American Insurance Company as security for the payment of state sales taxes incurred by said defendant’s principal for the period April 1, 1957, to May 9, 1957, 1 a...
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Appellant, Cecil Leroy Clouse, in an information filed by the District Attorney of Los Angeles County, was charged with the crime of burglary committed on or about January 3, 1963, in that he entered the office and building occupied by the Murphy Transportation Company with the intent to commit theft. The information also charged a prior felony committed in Oklahoma. Appellant admitted the prior f...
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By indictment the defendants Julius Bernhardt, Vivienne Dunham and William E. Lund were accused of two crimes. In count I it was charged that they had committed the crime of conspiracy to violate section 2141 of the Business and Professions Code. In count II they were alleged to have committed the crime of manslaughter (Pen. Code, § 192) on or about February 16, 1961; the person alleged to have b...
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Defendant was charged in count 1 with assault with a deadly weapon, a sawed-off shotgun, on a police officer (Pen. Code, §§ 245, subd. (b), and 12022); in count 2 with possession of a sawed-off shotgun eoncealable on the person having a barrel less than 12 inches long (Pen. Code, § 12021) ; and in count 3 with possession of a sawed-off shotgun with barrel less than 18 inches long (Pen. Code, § 12...
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This is an appeal from a judgment of conviction of the crime of burglary, a violation of section 459 of the Penal Code. I There can be no question as to the proof of defendant’s guilt. The police officer testified, without contradiction, that he saw defendant at 4 a.m., in front of a store which had been broken into, with his arms full of merchandise, that he chased and caught him, st...
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Plaintiff, Louise M. Perkins, the assignee of a promissory note, appeals from a decree in equity setting aside a judgment by default against one of the comakers, respondent and cross-complainant, Olga Dawson. Cross-defendants, Jacquolyn Monson (the payee) and real party in interest, Everett Dawson (the other comaker) and John B. Swendsen, appeal from the decree and from an order denying their moti...
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Appellant was convicted of burglary. The owner of the things alleged to have been taken in the course of the burglary testified that the doors of his home were *617locked when he left in the morning, and that when he returned in the evening an electric iron, a hatchet and several hand tools were missing. One of the neighbors testified that she saw defendant leaving the front door of the burglarize...
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Defendant appeals from the judgment of conviction entered following a nonjury trial wherein he was found guilty of voluntary manslaughter and assault with a deadly weapon. Appellant’s brief presents a variety of arguments which may be considered as relating to his two basic assignments of error: (1) that the evidence was not sufficient to support the judgment; and (2) that his representation by co...
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Plaintiff seeks damages from defendant and her attorneys for slander allegedly uttered during the course of a prior proceeding to quiet title to property. This appeal is from a judgment entered upon an order sustaining a general demurrer to plaintiff’s complaint without leave to amend. Clarence H. Jordan, plaintiff here, and his wife, had brought the quiet title action against Garnet Warnke, a ...
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This is an appeal by plaintiff, Atkins, Kroll & Co., Ltd., 1 from an order quashing service of process and dismissing a proceeding to confirm an arbitration award on the ground of lack of jurisdiction over defendant, Broadway Lumber Company, a New Mexico corporation. 2 Question Presented Did Broadway, a foreign corporation, submit to the jurisdiction of the cour...
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The trial court impressed a trust in favor of plaintiffs upon certain corporate stock. Defendants have appealed, contending that such relief is barred by the defense of illegality and unclean hands. The facts will be stated in the light most favorable to respondents. Gladys Platt Pendleton executed her last will on October 15, 1949. After providing for certain specific bequests, the residu...
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This is an appeal from a judgment denying appellant, Dave’s Market, Inc. (hereinafter called the licensee) a peremptory writ of mandate in a proceeding for judi *674 cial review of an administrative decision of the Department of Alcoholic Beverage Control (hereinafter called the Department) ordering the revocation of a general off-sale retail liquor license. The principal issues ar...
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Defendant appeals from a judgment convicting him of grand theft in the felonious taking of an automobile. (Pen. Code, § 487, subd. 3.) The jury found him not guilty of the violation of section 10851 of the Vehicle Code as charged in the second count of the information. The evidence reveals that Police Officer Imbler and a fellow officer, who was driving their patrol car, were proceeding along San ...
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Defendant was charged with violating section 11531 of the Health and Safety Code, which makes it illegal to sell, furnish, or give away marijuana. He was found guilty in a jury trial, and he now appeals from the judgment. *688 Officer Percy H. Thompson of the Los Angeles Police Department was assigned to the Narcotics Division as an undercover agent. At about 2:10 p.m. on the afte...
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Appellant appeals from an interlocutory decree of divorce, limiting her appeal to a portion of the judgment relating to property which the trial court found to be in joint tenancy. Appellant originally sold some stock which was her separate property. With the proceeds of the sale appellant and respondent bought a family home (title being taken in joint tenancy), and later sold a portion of the ...
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Robert Lee Quigley appeals from an order denying his motion to vacate a previous judgment finding him guilty of involuntary manslaughter for which he is serving a term of imprisonment. As no contention is made that the judgment in the criminal case was wholly void (People v. Hoffman, 132 Cal.App. 60 [22 P.2d 229]; People v. McGee, 1 Cal.2d 611 [36 P.2d 378]; People v. Ramirez, 139 Cal.App. 380 [33...
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Plaintiff, after a court trial, recovered a money judgment in an action based upon a contractual obligation by defendant to pay his agreed share of certain expenses in a joint food purveying operation. Defendant’s appeal is on the ground that neither of the two theories of plaintiff’s complaint was established. These theories were: (1) a direct agreement between plaintiff, an incorporated assoc...
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Defendant-appellant, Fullerton Mortgage & Escrow Company, appeals from a judgment in favor of plaintiff-respondent, Warington Lumber Company, for $26,756.27 in a breach of contract action brought by plaintiff-respondent, a building materials dealer who sold lumber and other building materials to Hintz Development Corporation. Hintz became delinquent in its account with plaintiff, owing about $1...
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Appellant was charged with a violation of Penal Code section 12021 (ownership and possession of a coneealable firearm by a felon) and convicted by a jury. The record reveals these facts: On November 8, 1961, at *714 about 3:45 a.m., Officers Pipkin and Hale were on patrol on the coast highway between Half Moon Bay and Santa Cruz. They had observed no vehicles on the highway for several hours,...
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This is an appeal from a judgment entered after a trial by the court sitting without a jury wherein it was adjudged that appellant “has no right, title or interest in the sum of $6,125.82, now held by Bank of America National Trust and Savings Association in a purported joint tenancy bank account standing in the names of L. E. Scott or Evelyn T. Scott at its branch at Van Nuys, California. “That p...
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This is an appeal by the plaintiff from a judgment which decreed among other things that he should not be entitled to damages or specific performance of a contract with reference to the purchase of certain real property. A résumé of some of the facts is as follows: Plaintiff, a licensed real estate broker, maintained an office in the Lancaster area where he conducted his business. He ...
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This is an appeal by plaintiff from a judgment entered after the trial court granted defendant’s motion for summary judgment in an action for personal injuries. Plaintiff, a 15-year old minor, sustained the injury when he attempted to hitch a ride on defendant’s train, lost his hold and fell underneath a moving freight ear. The chronology of significant events is as follows: On March 29, 1962...
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Defendant was convicted by a jury of offering to sell marijuana. He appeals from the judgment. The People’s case consists of the testimony of two police officers. On June 4, 1962, around 2 p.m. Officer Wiggs, working undercover for the narcotics detail, was driving around with one Armstrong and Smiley “just looking for anybody *735 that you might get to sell you narcotics. ’ ’...
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This is an appeal from a judgment of conviction of the crime of robbery. By information filed in Los Angeles County on July 13, 1962, defendant was charged with armed robbery (Pen. Code, § 211). He also was charged with having suffered four prior felony convictions. Defendant pleaded not guilty to the charge of robbery as contained in the information and admitted two of the charged prior convic...
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This is an appeal from a judgment of conviction of possessing marijuana. In an information filed in Los Angeles County on June 11, 1962, defendant was charged with possessing marijuana on May 21, 1962. A plea of not guilty was entered and a jury trial was waived and defendant found guilty as charged. Proceedings were suspended and probation was granted for three years, a part of the terms of pr...
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In a non jury trial the defendant was adjudged guilty of burglary of the second degree. An allegation that he had been convicted in 1958 of forgery, a felony, was found to be true. He appeals from the judgment and the order denying his motion for a new trial. A burglary was committed at the home of Mrs. Delgado, at 120 West Avenue 28 in Los Angeles, on December 15, 1962, between 4 p.m. and 7 p.m. ...
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Defendant Cuellar and one Harold Lumar were accused of attempted burglary. Cuellar admitted an allegation of the information that he had been convicted previously of burglary, a felony. In a nonjury trial Cuellar was adjudged guilty of attempted burglary of the second degree, and Lumar was adjudged not guilty. Cuellar appeals from the judgment and the order denying his motion for a new trial. On J...
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Defendant was charged in a secret grand jury indictment with two counts of selling and furnishing a narcotic (marijuana) in violation of Health and Safety Code section 11531. Following a plea of not guilty, defendant waived a jury trial and was adjudged guilty on both counts by the trial court. Defendant filed a notice of appeal in propria persona, and thereafter counsel was appointed to represent...
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The defendant appeals from a burglary conviction. With one Luis Miramontes, he was arrested by a police officer of the City of Merced in the early morning of October 24, 1962, inside the Club Morelos; the building had been entered through a torn screen and a broken window; the cash register had been opened and the cigarette vending machine had been pried apart and the money contents appropriated....
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Petitioner authority seeks mandamus to compel respondent city and its council to perform acts required by a cooperation agreement. The authority is a state *772agency organized under the Housing Authorities Law (Health & Saf. Code, §§ 34200 et seq.). That law, the Housing Cooperation Law (Health & Saf. Code, §§ 34500 et seq.) and the Federal Low Rent Housing Act of 1937 (42 U.S.C.A. § 1401 et seq....
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Defendant was charged "with possession of marijuana (No. 259191), sale of heroin and marijuana (counts III and IV, No. 258838) and two prior felony convictions (Dyer Act and burglary and larceny). On arraignment and plea he was represented by two separate deputy public defenders. He appeared for trial on July 17, 1962, with a third deputy, K. Watanabe, and denied the priors; he joined his codefen...
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The contention raised by the defendants on this appeal from the judgments of conviction of the crime of possession of marijuana (Health & Saf. Code, § 11530) is that the evidence was obtained as the result of an illegal search and seizure. Each defendant waived a trial by jury. Joe Lesnick, a deputy sheriff of the County of Los Angeles assigned to the narcotic detail, testified that on January 24,...
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Defendants, Augustine and Mercy Avila, are ranchers in El Dorado County. Plaintiff, Joseph Ortiz, came to live with them in January 1956, remaining until July 1961. The status of moneys delivered by plaintiff to defendants during this period is the subject of the controversy. The theory of the complaint was that plaintiff, who was a person of subnormal intelligence, had delivered his paychecks to...
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Manuel J. Gomes, a Merced County farmer and dairyman, and his wife, Mary, borrowed money from the plaintiff, Merced Production Credit Association, for the purchase of hay, and executed a migratory chattel and crop mortgage on April 16, 1959, to secure the repayment of the loan. Included in the mortgaged property were 38 cows, described according to age, brand, and breed, “together with all incr...
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On May 3, 1963, the defendant-appellant, Tom James Blevins, and defendant Morrow, in *803propria persona, filed a motion to set aside and vacate judgment and petition for writ of error coram nobis in forma pauperis. The motion and petition were denied, from which order both defendants, again in propria persona, appealed. At the request of defendants filed with their opening brief, this court appoi...
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There are two appeals: one, from a judgment for proponents in a will contest tried to a jury; and the *811other, from a judgment determining interests in the estate under the will. Decedent, Louise Goulart, was born in the Azores in 1878. In the early part of the present century, she came to California to make her home with Jose P. and Louise Amaral. This couple, being childless, wished to adopt h...
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Defendant appeals from a bigamy conviction; his attempted appeal from “all other orders” and order denying probation is dismissed. (People v. Walters, 148 Cal.App.2d 426 [306 P.2d 606].) Defendant married Martha in 1960 and left her in November 1961; the marriage was never annulled or dissolved by divorce. Prior to the separation, Martha told defendant she wanted a divorce but was financially unab...
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This is an appeal from the judgment of the superior court granting respondent a peremptory writ of mandate commanding appellant California Horse Racing Board to set aside its decision and order of March 19, 1962, *834 by which it determined that respondent should not be granted permission to engage in parimutuel wagering and should not be permitted access to racing enclosures withi...
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This is an appeal by Biltmore Garages, Inc. (hereinafter referred to as defendant) from an adverse judgment, wherein Florence Mackoff (hereinafter referred to as plaintiff) was awarded the sum of $50,000 and costs for alleged personal injuries suffered by her as a result of a “slip and fall” on defendant’s public parking garage premises. A synopsis of the material facts, stated in the ligh...
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This is an appeal from a judgment of the Superior Court of Sacramento County denying appellant’s petition for a writ of mandate and affirming the action of the State Personnel Board in discharging appellant from her employment at the DeWitt State Hospital, where, she held the position of psychiatric technician, Department of Mental Hygiene. She was first employed in October 1947 and had served 11 ...
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222 Cal. App. 2d 863 (1963) PALMER REMME, Plaintiff and Respondent, v. HARRY H. HERZOG et al., Defendants and Appellants. Civ. No. 10710. California Court of Appeals. Third Dist. Dec. 4, 1963. Richard A. Case for Defendants and Appellants. Allan B. O'Connor for Plaintiff and Respondent. VAN DYKE, J. [fn. *] Herzog Builders Supply Company, Inc., a corporation, Harry H. Herzog and Zella B. ...
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222 Cal. App. 2d 869 (1963) MAUDE J. SMITH, as Administratrix, etc., Plaintiff and Respondent, v. GREENFIELD STATE BANK, Defendant and Appellant. Civ. No. 260. California Court of Appeals. Fifth Dist. Dec. 4, 1963. Mack, Bianco, King, Eyherabide, Means & Cooney and Henry C. Mack, Jr., for Defendant and Appellant. Edwin W. Wilson for Plaintiff and Respondent. BROWN, (R.M.), J. Appellant...
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This appeal originated in an action brought by the plaintiff-respondent, County of Kern (hereinafter County), against defendants-appellants, Edgemont Development Corporation (hereinafter Edgemont) and Globe Indemnity Company (hereinafter Globe), for breach of contract for the improvement of streets and installation of a water system in a subdivision located in the County of Kern and on the bond...
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At the time of the injury for which he sues plaintiff Charles Raymond was 7 years old. He was a pupil at the Paradise Elementary School operated by defendant school district. He lived near the Paradise Junior-Senior High School operated by the same district. The district provided bus transportation for pupils. Defendant Alvin C. Marshall was one of its bus drivers. Marshall’s bus route at the t...
Views: 33
218 Cal.App.2d 12 (1963) AMELIA C. CAMPBELL et al., Plaintiffs and Appellants, v. CITY OF PALM SPRINGS, Defendant and Appellant; AUBREY CLARK et al., Defendants and Respondents. Civ. No. 7089. California Court of Appeals. Fourth Dist. July 3, 1963. Alvan H. Fisher and David M. McGahey for Plaintiffs and Appellants. Thompson & Colegate and Robert E. Dauber for Defendant and Appellant. He...
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This appeal is from an order denying appellants ’ motion to enjoin Nathan G- Gray and Richard F, *26 Swisher from representing respondents as their attorneys. The action is a stockholders’ derivative suit, and its primary purpose is to set aside a transfer of substantial assets of the corporation alleged to have been' made for an inadequate consideration. From the record it appears that appel...
Views: 8
This is an appeal from a judgment in favor of plaintiff with reference to a claim for money under a written contract. The cause went to trial upon the claim of Blackburn that he, as the owner of a patent for a long stroke oil pumping unit, had entered into a written license agreement with Allen wherein, among other things, Blackburn had granted to Allen the exclusive right to make and sell...
Views: 4
This is an appeal from a judgment which among other things granted defendants’ motions for declaratory judgment on the pleadings and declared the validity and constitutionality of an approval of a conditional use by city authorities to the individual respondents herein. The complaint filed herein on November 6, 1961, was in seven counts and alleged generally that Bentley, Watts and Hunter, some...
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This is an appeal from a judgment wherein appellant was found guilty of burglary and grand theft. *55 In an information filed in Los Angeles County on April 9, 1962, defendant was charged in Count 1 with burglarizing a building or store of David Goldin on or about September 2, 1961; in Count 3 he was charged with taking on or about September 2, 1961, certain restaurant equipment of David Go...
Views: 17
The petitioner is the defendant in criminal action No. 16718, pending in the County of San Bernardino, entitled “The People of the State of California, Plaintiff v. James William Mardis, Defendant.” On March 6, 1963, a preliminary hearing was held in the Justice Court of the Bar-stow Judicial District, and the defendant was held to answer to the superior court. The transcript of the testimony on ...
Views: 18
In a declaratory relief action plaintiff appeals from a judgment declaring invalid an election increasing the maximum tax rate of the district. Question Presented Was the election invalid because of failure to publish notice of the election % Record 1 Plaintiff district is an elementary school district in San Mateo County. For five years the district has oper...
Views: 1
This is an appeal by a defendant who was convicted of possession of heroin in violation of Health and Safety Code, section 11500. Appellant Williams and Clarence Lace-field were jointly charged and tried before a jury. Each was represented by separate counsel. Both were found guilty. Williams alone has appealed. In passing upon appellant’s contentions that the evidence was insufficient to suppo...
Views: 15
Automobiles being operated respectively by plaintiff Dalzell and plaintiff Harrison were involved in a collision on April 9, 1958. Dalzell brought an action against Harrison and in November 1958 recovered a default judgment for $10,000, which defendant Northwestern Mutual Insurance Company, Harrison’s liability insurance carrier, refused to pay, claiming that it had no knowledge until May 19, 1...
Views: 2
A default and default judgment were taken against defendant. Within the six-month period it pe *110 titioned for and was granted relief by the trial court under Code of Civil Procedure section 473 upon the grounds default had been taken through its “mistake, inadvertence, surprise or excusable neglect.” A copy of the proposed answer and cross-complaint was filed with the application. We hold th...
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Application for alternative writ of prohibition forbidding trial of the case of People v. Richard Joseph Haddad and John Louis Forti, No. 273608 in the Los Angeles Superior Court, and arresting any other or further proceedings therein. The charge is conspiracy to violate Penal Code section 311.2, which provides: “Every person who knowingly: sends or causes to be sent, or brings or causes to be bro...
Views: 0
Two defendants, one of whom is appellant Scott, were charged, tried and found guilty by a jury of violation of Penal Code section 459, in entering a building, to wit: a telephone booth, with intent to commit theft. Upon appellant’s request we appointed counsel to represent him on this appeal. This attorney, after examining the record, has advised the court he can find no meritorious grounds for ap...
Views: 5
Appellant E. A. Taliaferro has taken two appeals on separate records from orders made in an unlawful detainer action. In Civil No. 20554, he has appealed from an order vacating an entry of default. In Civil No. 20660, he has appealed from an order granting a motion to strike a cross-complaint. Following are the pertinent procedural events: On January 31, 1961, respondent Dorothy Davis file...
Views: 4
In this action brought by a third-party creditor beneficiary to recover for goods sold and labor and materials furnished, defendants Jess M. Ritchie (hereafter called -Ritchie) and Pioneers, Inc. (hereafter called Pioneers) appeal from a judgment entered on a jury verdict against said defendants and in favor of plaintiff R. J. Cardinal Company (hereafter called Cardinal). Plaintiff’s secon...
Views: 18
Defendant appeals from conviction of two violations of section 11501, Health and Safety Code (sale of heroin). Questions Presented 1. Insufficiency of the evidence. 2. Admissibility of testimony of officer whose memory was refreshed by recording, unintelligible in part. 1. Evidence. On November 6, 1961, State Narcotics Agent Henry Lopez and Richmond police officers met Rudy Lopez at the...
Views: 15
Defendant appeals from a judgment of conviction of violating section 288a of the Penal Code rendered by the court sitting without a jury. 1 The sole ques *158 tion presented here is whether the defendant property waived a trial by jury. We have concluded that he did not. The record shows that when the case was called for trial on June 26, 1962, the prospective members of the jury were prese...
Views: 2
Defendants appeal from an order granting plaintiff’s motion for a new trial. Plaintiff Lily Gensburger brought this action to obtain damages for personal injuries sustained when she was scalded by hot water. Plaintiff was a tenant in an apartment house owned by defendants Glafara and Efim Shapiro, who employed defendant A. J. Lay to maintain and control the hot water supply. Plaintiff’s complaint ...
Views: 0
Defendant appeals. from, a. judgment rendered on a jury verdict finding him guilty of. robbery in the second degree (Pen. Code, § 211). . The. contentions on appeal are that: (1) the evidence is insufficient .to .support the judgment; (2) the trial court'erroneously admitted testimony-of an incompetent witness; and (3) the prosecution was guilty of prejudicial misconduct. The robbery occurred a...
Views: 11
Defendant, Billy Gene McKinney, appeals from a judgment rendered on a jury verdict finding him guilty of one count of conspiracy (Pen. Code, § 182), and three counts of forgery (Pen. Code, § 470). On this appeal from the judgment of conviction, he contends that the conspiracy conviction is erroneous as a matter of law because there was no corroboration of the testimony of his accomplice, and that...
Views: 4
Respondent City of North Sacramento (hereinafter the “city”) instituted condemnation proceedings, under the Public Utilities Code (§ 1401 et seq.) to acquire the water system supplying its, citizens. This system was owned by appellant, Citizens Utilities Company of California (hereinafter sometimes the “utility”).' The proceedings ultimately reached a “final” 1 order of condemnation ...
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Plaintiffs as executors of the estate of Ruth E. Cook commenced two separate actions against The Penn Mutual Life Insurance Company to compel payment of certain sums they claimed were owing to them under the terms of two life insurance policies. The actions were consolidated for trial and the trial court found in favor of plaintiffs in each case and entered judgments from which defendant appeal...
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Approximately two weeks after a burglary had been committed defendant was accosted by two detectives on a downtown Sacramento street. The time was approximately 11 p.m. One of the officers said: “Mr. Freeland, come with us.’’ They searched his car, then took him to police headquarters and interrogated him. They had neither arrest warrant nor search warrant. The officers questioned defendant inter...
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Plaintiff has appealed from a judgment of dismissal entered after demurrers were sustained to the first amended supplemental complaint without leave to amend. The first amended supplemental complaint (hereinafter called complaint) seeks to establish a cause of action in inverse condemnation against defendant County of Riverside, with the proceeds of such action belonging to plaintiff and ...
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After a nonjury trial, defendant was convicted of possession of marijuana, with a prior felony conviction for possession of narcotics, in violation of section 11530 of the Health and Safety Code of the State of Cali *216 fornia. The conviction resulted upon the testimony of Police Officer Charles Wettstein, who testified substantially as follows: 1 That during the month of August 1961 the N...
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Respondents, Joseph and Lena Sozzi, individually and as guardians ad litem, filed this action for personal injuries sustained by their minor daughter, Angelina, and for the wrongful death of another daughter, Mary. The girls were riding as guests in an automobile owned and operated by Angelina’s fiancé, Donald T. McGinity. The McGinity Mercury was involved in a collision with a 1946 *233Ford owned...
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This is an appeal from a summary judgment in favor of the respondent, Providence Wash *240 ington Indemnity Company. Appellants, James and Jessie Somerville, filed their complaint for personal injuries sustained by them and their minor children on July 13, 1957, when the Somervilles were involved in an accident with a 1951 Ford sedan driven by one Victor Williams. The complaint all...
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Defendant Wilson Scott appeals from a conviction of assault with intent to commit rape in violation of Penal Code, section 220, and from the order denying his motion for a new trial. The latter order is no longer appealable (Pen. Code, § 1237). The evidence may be summarized as follows: In March 1961, the prosecutrix, Mary Waller, was employed as a waitress at the Bella Napoli restaurant in Oak...
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Appellant, the widow of decedent and executrix of his estate, appeals from an order granting family allowance to his two minor children by a prior marriage, and purports to appeal from the order denying rehearing. 1 Question Presented Where a divorce decree provides for child support payments, is a creditor’s claim in the father’s estate the exclusive method of obtaining support for said ch...
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After a trial by jury, appellant was convicted. of burglary in the first degree. (Pen. Code, §§ 459, 460.) He appeals from the judgment. On March 28, 1962, at approximately 5 p.m., the victim Johnny R. Rin left his room in the Sherman Hotel in Oakland to go to work. He locked his door. When he returned from work the next morning at about 5 a.m. he noticed that there were little pieces of wood c...
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This is a wrongful death action brought by the surviving heirs of Leland Anderson and Larry Lentz, two members of the Ferndale Volunteer Fire Department who were killed while attempting to extinguish a fire on Coppini Lane near Ferndale, California. Plaintiffs alleged that the defendant, Pacific Gas and Electric Company, had installed along the east side of Coppini Lane certain uninsulated elec...
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This is an appeal from a judgment wherein among other things the defendant Ida Burkhart (by and through her guardian Sehiff) was ordered to perform specifically an agreement to sell certain real property upon being paid the consideration agreed upon. A résumé of some of the facts is as follows: Ida Burkhart was the owner of certain described real property located in Santa Monica and she de...
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This is an appeal from a judgment of conviction on two counts of illegal abortion. In an indictment returned by the grand jury of Los Angeles County on April 11, 1961, the appellant was charged with the crime of violation of section 274, Penal Code, in seven counts. ' Count I charged in effect that defendant did on February 11, 1961, “provide, supply, use and employ an instrument and other me...
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In a jury trial defendant Costa was convicted of first degree robbery. He appeals from the judgment, and from the order denying his motion for a new trial. Such an order is not appealable. Appellant contends that the court erred in failing to give certain instructions regarding circumstantial evidence, included lesser offense, self-defense, and a dangerous weapon. Mr. Johnson (the victim) was...
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Defendant was convicted of the charge of possession of marijuana (Health & Saf. Code, § 11530). He has appealed from the judgment (order granting probation) and sentence. On March 2, 1962, at approximately 10:10 p.m., Officer A. L. Allen of the North Hollywood division of the Los Angeles Police Department, observed defendant going towards the rear of a laundromat at Magnolia and Cartwright...
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Defendant, who is now in the state prison, has taken this appeal from an order of the superior court denying his "motion to vacate a void judgment. ’ ’ The record shows that defendant was orginally charged by an information containing two counts. The first charged *323 grand theft of an automobile in violation of Penal Code, section 487, subdivision 3, and the second count charged that he did...
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This is a petition for writ of mandate after the order of respondent court denying petitioner's motion for change of venue. Petitioner is the defendant and cross-complainant in a di *328 vorce action brought by her husband, the real party in interest, in the Tuba County Superior Court. In his complaint he alleged his residence to be in Tuba County. Petitioner in her cross-complaint alleged he...
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In Count One of the information defendant was charged with assault with a deadly weapon upon one Rodriguez; in Count Two, with assault with a deadly weapon upon one Delgado. Convicted on both counts after a nonjury trial, defendant appeals. His court-appointed counsel has found no error in the record and we have examined it independently to satisfy ourselves of the propriety of the proceedings. Pr...
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This is an appeal from a judgment denying appellants (hereinafter called the licensees) a peremptory writ of mandate in a proceeding for judicial review of an administrative decision of the Department of Alcoholic Beverage Control (hereinafter called the Department) ordering the suspension of an off-sale retail liquor license issued by the Department. . On March 13, 1959, the Department fi...
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Plaintiff appeals from judgment in favor of defendants after order sustaining demurrer without leave to amend. Question Presented Is the action one to try title to public office which can only be done by quo warranto ? Record Plaintiff brought a taxpayer’s suit against Thomas J. Mellon, a member of the Police Commission of the City and .County of San Francisco, and his suret...
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Albert Gurrola was convicted by a jury of driving a vehicle upon a public highway while under the influence of narcotics (Veh. Code, § 23105) and of transportation of a narcotic (heroin) (Health & Saf. Code, §11501). He has appealed from the judgment, the sentence, and from the order of the court denying his motion for a new trial. The sentence and the order being nonappealable the purported ap...
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The defendant Nelson and Virginia Marie Thomas were accused of the crime of violation of section 11530.5 of the Health and Safety Code. 1 It was further alleged that the defendant Nelson had suffered a prior conviction of the crime of violation of section 11500 of the Health and Safety Code, a felony, and had served a term of imprisonment therefor in the state prison. When the matter came on fo...
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Defendants Rust and Clayton were charged with robbery from O. H. Deeper while they were armed with a deadly weapon. A jury found them guilty of robbery in the second degree, that is, of taking property from the person or immediate presence of the possessor by means of force or fear but without being armed with a dangerous or deadly weapon. 1 Defendants appeal. *366 Viewed most favorably to ...
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The plaintiff, as a taxpayer and property owner within the boundaries of the proposed district, brought suit against the County of San Bernardino and the members of its board of supervisors to restrain them from calling an election or acting further in response to a petition for the organization of the “Big Bear Municipal Water District.’’ In his complaint the plaintiff alleges that the Municip...
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This is a companion ease to 4 Criminal 1768, “People of the State of California v. Jean Donetta Bost,” post, p. 394 [33 Cal.Rptr. 10]. By stipulation the preliminary examinations of the two charges were held contemporaneously on the same evidence. In the superior court, by agreement of the parties, the testimony taken at the preliminary examination was received as the only evidence against bo...
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This is a case closely allied on the facts and the law to “The People of the State of California v. Lloyd Thomas Hunter, Jr.,” 4 Crim. 1771, ante, p: 385 [33 Cal.Rptr. 15], decided on this date. The preliminary examinations in both cases were held contemporaneously by stipulation of the parties, and in the superior court the entire evidence consisted of the reporter’s transcript of the test...
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Plaintiffs appeal from an order of the superior court denying their request for a peremptory writ of mandate. This matter arises out of a proceeding that had its commencement on December 24, 1959, when an accusation was filed with the Department of Alcoholic Beverage Control charging Anderson and Howard Coleman, owners of the Club Manhattan and a general on-sale liquor license, with three viola...
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This is an appeal by the plaintiff from a judgment rendered in an action brought by him for a declaration of the rights and obligations of the parties under a written agreement and for other relief. The defendant is Vernbro Corporation. The defendant corporation erected a medical office building. The plaintiff, Dr. Forde, was one of the original stockholders of the corporation and became a tena...
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Plaintiff Mamie and defendant Francis were married in California in 1929. They separated in 1961 and Mamie thereupon filed this action for divorce, charging extreme cruelty. Francis filed an answer denying the allegations of cruelty and a cross-complaint seeking like relief. The case came to trial in due course and was tried without a court reporter. At the close of the evidence, counsel submit...
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A jury found defendant guilty of a violation of Penal Code section 245 (assault with a deadly weapon). Defendant appealed from the judgment entered. After our study of the record, our conclusion accords with that of the attorney appointed by us to represent defendant on this appeal—that the appeal has no merit. Appellant has neither filed a brief on his own behalf nor indicated his grounds of appe...
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On a charge of robbery, the court found defendant guilty of second degree robbery. Defendant appealed. Upon defendant’s request an attorney was appointed to represent him on the appeal. This attorney has advised the court that after reviewing the record, he is of the opinion there are no valid grounds for an appeal. After an independent review of the record, we reach the same conclusion. On S...
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Defendant was arrested September 7, 1962, and then examined by Dr. R. L. Williams, San Diego Police Physician. The same day Dr. Williams executed an affidavit of examining physician, in which he declared his conclusion that defendant was addicted to the use of narcotics and unless confined would likely injure himself or others or become a menace to the public. On September 11, the district attorne...
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Appellant, Dolores P. Conaway, appeals from an order of the superior court denying her motion to appoint a receiver (in aid of execution under Code Civ. Proc., § 564, subd. 4) to receive all retirements checks paid to respondent, Frank Conaway, her former husband, and to apply them to a judgment for accrued alimony. In 1950, appellant wife obtained an Iowa divorce from respondent. Its decree or...
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We granted a rehearing in this ease for the following reason: The opinion deals with the correctness of respondent trial court’s ruling in a malpractice action denying discovery to plaintiff by interrogatories of the transactions at a certain meeting of doctors with defendant and his attorney. V- The original opinion not only disposed of specific questions of discoverability now raised. It...
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During the year 1956 the plaintiffs purchased a vacant piece of real property in Riverside County; before the escrow closed July 15, 1957, plaintiffs purchased a title insurance policy from defendant, which policy described the property insured in the same manner as it was legally described in the deed, except that the policy stated the land was in the “Beaumont Irrigation District, City of Bea...
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Plaintiff, cross-defendant and appellant, B. B. Jackson (hereinafter called Jackson), sued to quiet title to certain unpatented mining claims designated as Iron Pot one through thirty-five. Defendant, cross-complainant and respondent, Happy Scurr (hereinafter called Scurr), answered and cross-complained to obtain ownership of an undivided one-half interest in said mining claims, subject only to Ja...
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On October 19, 1960, the Department of Alcoholic Beverage Control filed an accusation in two counts against United Liquors, Inc., the possessor of a general off-sale liquor license. Count I charged violations of Business and Professions Code, section 24755, and rule 99(f) of the department’s rules (Cal. Admin. Code, tit. 4), in that said licensee had, on October 5, 1960, sold two brands of alcoho...
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Plaintiff appeals from an order (1) denying her motion for an order compelling defendant to answer certain questions which were asked during the taking of his deposition, and (2) requiring her attorney to pay $100 to defendant as attorney’s fees incurred in opposing the motion. In 1949 plaintiff (wife) was awarded custody of the minor daughter of the parties in a final judgment of divorce. In J...
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This is a proceeding to review by writ of mandate an order of respondent court denying petitioner’s motion to require answers to interrogatories. In the action pending in respondent court, petitioner, as plaintiff therein, seeks to recover under a personal disability policy issued by defendant, real party in interest herein, 1 alleging that he was totally disabled from injuries arising out of...
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Petitioner, M. F. Turner, seeks a writ of mandate to compel the Superior Court of Los Angeles County to enter its order quashing service of summons on the ground that the court did not acquire in personam jurisdiction as the result of service of process on him in the State of Washington. Lillian Kassuba, real party in interest herein, filed an action on June 14, 1962, in which she seeks damag...
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This is a motion on behalf of appellant Jesus Soloman Serrano in the nature of a petition for a writ of error cor am nobis (Pen. Code, § 1265) to vacate the judgment convicting him of violating section 11500, Health and Safety Code. His conviction was affirmed in April 1960 by this court in 180 Cal.App.2d 243 [4 Cal.Rptr. 470]. The motion is on the theory that his conviction was based on the ...
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Defendant was charged with three counts of burglary. He pleaded guilty to the first two counts and the third was dismissed. He also admitted two prior felony convictions which were alleged in the information. The offense was thereupon fixed as first degree with the approval of his counsel;1 defendant was adjudged an habitual criminal and sentenced to imprisonment in state prison for the term presc...
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Following a plea of “not guilty” and trial by jury,, the defendant, Duffy R. Hambleton, was convicted of grand theft in that, on August 16, 1961, he obtained a 1961 Chevrolet automobile by false pretense. His motion for new trial was denied and he was granted four years ’ probation with the first two months in the county jail. On May 31, 1962, defendant appealed from the judgment of conviction and...
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The People have appealed from an order of the superior court granting the defendant’s motion to set aside an information. The information contained three counts, the offenses charged being respectively burglary (Pen. Code, § 459), receiving stolen property (Pen. Code, § 496), and grand theft (Pen. Code, §§ 484, 487). The defendant’s motion was made under the provision of section 995 of the Penal ...
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Coast Oyster Company, a corporation, appeals from a judgment rejecting its claim for a refund of unemployment insurance taxes. The essential facts were stipulated to by the parties. Briefly they are: Appellant was and is a Washington corporation engaged in the business of raising and selling oysters and oyster products. During the period involved herein, January 1, 1956, through December 3...
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Plaintiffs, cross-defendants and respondents Quan Shew Yung and wife brought this action against defendants, cross-complainants and appellants Mack *508 J. Woods and Ethel Mae Woods (erroneously sued as Mary Woods), husband and wife, for specific performance of a contract to sell two contiguous lots on which were located an old hotel, consisting of sleeping rooms on the second floo...
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Plaintiff appeals from judgment of non-suit. Questions Presented 1. Was plaintiff required to file a claim ? 2. Was there evidence of defendant’s negligence? 3. Was there evidence of nuisance? Record Plaintiff sued defendant district for damages for injuries received by him when, on July 10, 1958, in water skiing at Calero Reservoir, he lost his balance, fell into ...
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Plaintiff appeals from an adverse judgment in this action brought by her to rescind an irrevocable inter vivos trust. Additionally, plaintiff appeals from an order denying her motion to tax costs. We have concluded that the evidence is sufficient to support the findings and that the judgment should be affirmed. However, as we shall hereafter explain, we are of the view that the denia...
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The main issue here is whether a certain roadway running through a tract of land in San Mateo County was dedicated to public use. Plaintiffs brought this action to enjoin defendants, who own homes in the tract, from obstructing such public use. Plaintiffs were denied a preliminary injunction after a full hearing. The judgment was affirmed on appeal. (Flavio v. McKenzie ...
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Charged in seven counts with violation of section 288a, violation of section 286 (sodomy), and an attempted violation of section 286 of the Penal Code, the defendant, George Theodore Munton, was found guilty in a jury trial on counts I, II and VII. Count I charged a violation of section 288a and count II charged a violation of section 286. The victim in both counts was William Wallace, a boy appro...
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Defendant was convicted by the court of forcible rape (count one), sex perversion (count four), and assault by means likely to produce great bodily injury (count five). A motion for new trial was denied on November 5, 1962, and defendant was committed to the Atascadero State Hospital for observation before final judgment. The appeal from the order denying a new trial is therefore allowable. (Pen....
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Plaintiff appeals from an adverse judgment entered on a jury verdict in an action for damages for personal injuries. On June 3, 1960, plaintiff Frank Nigro, 77 years of age, went to defendant’s place of business to buy compost for his garden. He had been there on several previous occasions. This was his second trip on the above date. The compost ivas spread out over a portion of the defend...
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This is an action.against the State Board of Equalization for recovery of money paid, under protest, as taxes on the use of fuel in operating trucks upon the highways. A cross-complaint was filed by the People of the State of California on behalf of the Board of Equalization and Controller for recovery of money which allegedly had been refunded erroneously to plaintiff after plaintiff had paid mot...
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Defendant California Franchise Tax Board appeals from the judgment entered in favor of two savings and loan associations following a non jury trial of their action for refund of certain of their franchise taxes paid during the income years 1953, 1954 and 1955. Each plaintiff made timely payment of its franchise taxes and filed a claim for refund for each year involved. These claims were denied ...
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This appeal is brought by Ivan Neighbors, one of four defendants jointly charged with violating section 182, Penal Code, by combining, confederating and agreeing together to sell a dangerous drug, i.e., amphetamine, contrary to the provisions of section 4227, Business and Professions *595Code. Appellant was convicted following a jury trial; his three alleged eoeonspirators previously entered pleas...
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After a judgment for money had been entered against appellant, an undertaking executed by two sureties was given for the purpose of staying execution of the judgment under Code of Civil Procedure, section 942. The sureties failed to qualify. This appellate court has discretion to issue a writ of supersedeas on condition that a proper undertaking be furnished. (Isaak v. Evidon, 197 Cal.App.2d 453 [...
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In the first count of an information the defendant was accused of the crime of violation of section 93 of the Penal Code. 1 In the second count he was accused of the crime of violation of section 96 of the Penal Code. 2 He was found guilty with respect to each charge in a trial by jury. His motion for a new trial was denied. The proceedings were suspended without the imposition of sentence an...
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Plaintiff sued for a refund of ad valorem taxes levied against its property for the years 1954 to 1957, on the ground that the property was exempt from taxation under the so-called “welfare exemption.” Recovery was denied by the trial court on the ground that, although plaintiff had taken all necessary procedural steps to claim the exemption prior to paying the taxes, it had not filed its refund c...
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Plaintiff Elizabeth B. Johnson appeals from a summary judgment entered against her in favor of defendant Olive C. Drew. The action, brought by the assignee of the landlord’s interest in leases of certain aircraft, sought recovery of unpaid rents and other charges accruing under the lease. Lessee was Seven Seas Airlines, Inc. Among the defendants are Urban L. Drew, Earl J. Drew, and their mother...
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National Automobile and Casualty Insurance Company appeals from the judgment entered against it following a non jury trial of an action brought by respondents upon an undertaking on attachment filed pursuant to section 539 of the Code of Civil Procedure. In the prior action in which appellant’s undertaking was filed, respondents’ real property was attached and their motion to quash the att...
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Defendant was found' guilty' of first degree robbery as charged in two counts. , Motion for. new. trial denied. He appeals from the judgment. The cause having regularly .come before us upon the merits the judgment was affirmed in People v. Miller, 190. Cal.App.2d 361 [11 Cal.Rptr. 920], The Supreme Court denied á hearing on May 16, 1961,. and the remittitur issued. in due course. Thereafter, upon ...
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Defendant Eobert H. Lund, an attorney, appeals from a judgment entered on a verdict in plaintiff’s favor in the latter’s action for slander. Plaintiff is a medical doctor who specializes in pediatrics. He is actively engaged in practice in Bellflower, California, and draws his patients almost entirely from Bellflower and the surrounding communities. Until June of 1956 plaintiff was the per...
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The facts involved are not in dispute, substantially all being stipulated and uncontroverted. On December 29, 1953, the Wayne Manufacturing Company (hereafter referred to as either “Company” or “employer”) promulgated and created a profit sharing trust (hereafter referred to as “Trust”) for the benefit of its then and future ■eligible employees. The trust instrument delegated to an administrative...
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The sole issue on this appeal is whether the trial court abused its discretion in denying a motion to modify a child custody order. The controlling rule in such a. situation is stated in Foster v. Foster, 8 Cal.2d 719, 730 [68 P.2d 719] as follows: “An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court, and its discretion will not be...
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All of the parties to this litigation have appealed from the judgment in an action brought to foreclose a mechanic’s lien. In essence, there: are three ■ appeals * by plaintiff; by defendants Charles W.'Hall and Dorothea Fabian (hereinafter referred to as Hall); and by defendants Carl L. Dozier and Winifred Dozier (hereinafter referred to as Dozier). Statement of the Case. Plainti...
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Plaintiff wife appeals from an order denying her application for modification of the provisions of the interlocutory and final judgments of divorce relating to the payments required of defendant for the support of the minor son of the parties, who was born on September 13,1945. Appellant also complains of that portion of the order which, although it denies the husband’s request for a change in th...
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This is an appeal from an order inr structing personal representatives with respect to distribution of the estate. The trial judge held that the appellants, Long Beach Day Nursery, Adelaide Tiehenor Home for Crippled *692Children, and First Congregational Church of Long Beach, hereinafter referred to as the Three Charities, were residuary legatees and the respondents, Robert L. Taft and Stella E. ...
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This is an application for a writ of prohibition to restrain the superior court from trying, without a jury, the issues raised by a petition for the appointment of a conservator and written objections thereto. The applicant herein is the subject of the conservatorship proceedings thus initiated; filed the written objections in question; denied that he is incompetent or that a conservator should b...
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In a non jury trial defendant was convicted of assault with a deadly weapon, a felony. He appeals from the judgment. Appellant asserts that the evidence is insufficient to support the judgment. On April 28, 1962, about 7 p.m., while James Hill was in a café, the defendant came to him and said that he wanted some money, and that he would give it back. Hill gave him $2.00. Then defendant took a roll...
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This action for declaratory relief involves the interpretation of a comprehensive liability insurance policy issued by appellant, Zurich Insurance Company, to the respondent, Michael T. Harabedian. In the declarations of the policy the limits of liability are expressed as $100,000 for bodily injury to one person and $300,000 for each accident. David T. Harabedian, respondent’s son, was at all m...
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Defendant was convicted of manslaughter (Pen. Code, § 192, subd. 3 (a)) in that on February 17, 1962, he did wilfully and unlawfully, but without malice, kill Nan Bonner Malloy while engaged in driving a vehicle in the commission of an unlawful act not amounting to a felony; to wit, driving to the left of double lines, in violation of section 21460, subdivision (a), Vehicle Code, with gross neglig...
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This is an appeal from a summary judgment granted Dashew Business Machines, Inc., one of eight named defendants in the action. The cause of action as to five of the defendants was dismissed by plaintiff, leaving as named defendants, Stanley A. Dashew, former husband of plaintiff, and president and principal stockholder of Dashew Business Machines, Inc., and George R. Beidner, director and busin...
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The defendant was charged with the crime of burglary. (Pen. Code, § 459.) It was alleged that he entered the residence of Mr. and Mrs. James Hughes with the intent to commit rape. The defendant waived his right to trial by jury. It was stipulated that the cause could be submitted on the transcript of the testimony taken at the preliminary examination, together with such further evidence as either...
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Defendant was convicted, after a jury trial, of selling heroin in violation of Health and Safety Code, section 11501. Defendant admitted a prior felony conviction of unlawful possession of a narcotic by one having a previous narcotic conviction. He appealed from his conviction and asked this court to appoint an attorney to represent him on his appeal. Don R. Work, who was appointed by this court t...
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In two indictments defendant was charged with three violations of section 11531, Health and Safety Code. Pound guilty by a jury, he appeals from the judgment of conviction, order denying motion for new trial and order denying motion to arrest judgment. Inasmuch as the two orders are not appealable (Pen. Code, § 1237, subd. 2), the purported appeals therefrom are dismissed. On October 6, 1961, P...
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Appellant appeals from a judgment based on an order sustaining a demurrer to her complaint without leave to amend. While her complaint is not clear, she apparently attempted to plead that by fraud and misrepresentations the County Bureau of Adoptions induced her to sign a relinquishment of her child; that the father also signed; that she attempted to rescind and filed an action (prior to this one...
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Charles' Siller appeals from a judgment in favor of Stanley A. Sills and Leslie W. Sills in the amount of $17,570.99; and Preston Hatch, guardian of *738 the estate of Cora Leach, an incompetent person, appeals from a declaratory judgment in her favor in the amount of $6,237.66. This case arose out of a timber transaction involving a 40-acre tract of land in Tuba County which ...
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In 1959 petitioner was convicted in Sacramento County of selling narcotics in violation of then section 11500 of the Health and Safety Code. (See People v. Beccera, 175 Cal.App.2d 53 [345 P.2d 269].) He is now confined in the state prison as the result of that conviction. The Sacramento County charge included an allegation that in 1954 he had been convicted in Los Angeles County of a violatio...
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The sole issue on this appeal is whether certain instructions in an eminent domain proceeding were prejudicially erroneous. After the jury initially had retired to deliberate, it returned to the court on two different occasions; on the first presented three questions by which it elicited instructions upon the law; and on the second occasion presented an additional four questions by which it elicit...
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Plaintiffs Russell sued Palos Verdes Properties (hereinafter referred to as “Properties”) and Rolling Hills Community Association of Rancho Palos Verdes (referred to herein as “Association”) for declaratory relief and to quiet title to Parcel 1 (approximately 8.6 acres of unimproved land), Parcels, 2 and 3 (easements for'“road purposes”) and Parcel 4 (.019 acre, not here involved), seeking reli...
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Action for rescission, damages, injunction and declaratory relief. Plaintiffs are relatives by blood or marriage of Samuel Ray Calabrese, 1 who directly or through corporations controlled by him 2 had purchased, between April 1, 1959, and May 9, 1960, four operating drug stores from Owl Drug Co. (a subsidiary of Rexall Drug & Chemical Company, later merged into it) and had...
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This is an action for a balance alleged to be due under a written contract relating to the termination of a joint venture. Defendant has appealed from the judgment after a court trial. We have concluded that the judgment must be reversed because the trial court erroneously concluded that this agreement was unambiguous and refused to allow defendant to introduce evidence to aid in its interpretatio...
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In an action in which the plaintiff sought to recover the sum of $5,200.93 from the defendant, judgment was entered for the defendant. The plaintiff has appealed from the judgment. The findings of fact are in part as follows: 1. On October 4, 1957, the plaintiff did not deposit or cause to be deposited in a savings and loan association in Pasadena in the name of the defendant the sum of $5...
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The matters raised in the complaint and answer thereto were settled by stipulation of the parties, and the case proceeded to trial on the issues developed by the cross-complaint and answer, to determine what sums of money, if any, were owing cross-complainant and whether a .deed of trust was security for any amount due. From a judgment favoring the cross-complainant, this appeal was taken on two g...
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Charged with burglary in entering a home with intent to commit rape (Pen. Code, §,459), and with assault with intent to commit murder (Pen. Code, § 217), defendant was found guilty by a jury of first degree, burglary and assault with a deadly weapon (Pen. Code, § 245). He was sentenced to consecutive terms. Represented at trial by the public defender, he filed notice of appeal in propria person...
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Plaintiff’s action sought to cancel a deed of trust to certain designated property in the City of Los Angeles, to quiet title thereto and for a decree that defendants hold as constructive trustees thereof. She appeals from a judgment denying any relief; she has also attempted to appeal from the nonappealable order denying a new trial. Defendant Thompson, who was never served with process (and m...
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Defendant appeals from an "order dated April 29, 1963, revoking probation and remanding defendant to the sheriff to serve a six-month sentence theretofore imposed. Although the sequence of events began with the imposition *810of a 60-day sentence upon appellant for being drunk in a public place and the total of days served in jail to date under sentences (or as a condition to probation) by defenda...
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By Count One in an information, the defendants Charles, and a third person named Mary Swann, were charged with an attempt to commit the crime of pandering, i.e., an attempted violation of section 266i of the Penal Code; by Count Two therein, were charged with conspiracy to commit the crime of pandering, i.e., a violation of section 182 of that code; and by separate allegations therein, the defend...
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Plaintiff appeals from a defense judgment entered pursuant to a jury verdict denying damages for personal injuries’ as a result of a collision between his motor *825 cycle and an automobile owned by defendant Grady Garner and operated by his son, defendant Charles Grady Garner. Plaintiff was riding his motorcycle in an easterly direction on Yosemite Highway No. 41, in mountainous territory. P...
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This is an appeal from an order admitting to probate the last will and testament of Jessie Sauls. The contestants, Violet Keith, a niece of decedent, and Henry Cadwell, who was beneficiary under a preceding holographic will, appeal. The decision of this case requires the application of the well-established rule that if a trial court has substantial evidence to support its findings and order, the a...
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The appellants were indicted by a grand jury and charged with numerous counts of felony. A single count charged appellants with a violation of Penal Code section 182 (conspiracy to violate Pen. Code, § 337a); other counts of the indictment charged appellants with numerous violations of Penal Code section 337a, subdivisions 1, 3, 4, 5 and 6. After trial before the court without a jury, appellants w...
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This is an appeal from a judgment of the probate court in a proceeding to determine heir-ship pursuant to section 1080 of the Probate Code. Motion to dismiss appeal on ground that decree was nonappealable, denied. George C. Brissel died testate on December 13, 1961, leaving a will dated April 7, 1961, which was duly admitted to probate on January 15,1962. By the terms of paragraph Sixth of deceden...
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Defendant-appellant Lee Durbin was charged with a criminal offense on May 19, 1961, in the Superior Court of San Diego County and bail was set at $5,250. It was posted by the execution of two bonds by National Automobile and Casualty Insurance Company, by their agent Homer Rushing. On August 16, 1961, the date set for trial, defendant did not appear and the bail was *847 ordered forfeited. On S...
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Plaintiff Lorna Crane sued defendant Sears Roebuck & Co., Inc., (hereinafter called Sears) and defendant Universal Paint Corporation, (hereinafter called Universal) to recover damages for personal injuries sustained by her when she was burned by fire. Plaintiff complained in two causes of action against each defendant, one based upon negligence and the other upon breach of warranty of suit...
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The defendant Beverly Hills Federal Savings and Loan Association (hereinafter referred to as Beverly Hills Federal) and the defendants Mr. and Mrs. Webb, husband and wife (referred to as the Webbs), demurred to the first amended complaint. The demurrers were sustained without leave to amend, and a judgment of dismissal was entered. Plaintiffs appeal from the judgment. The first purported c...
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Defendant appeals from a final judgment decreeing reformation of a fire insurance policy issued to plaintiff, and further decreeing that plaintiff recover from defendant certain sums representing the loss sustained by the subject fire plus interest from July 26, 1957 (the date on which defendant formally denied liability under the policy). The amount of loss was determined by the trial court at...
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This is an appeal from a judgment wherein petitioners’ application for a writ of mandate was denied. A résumé of some of the facts as established by the proceedings is as follows: Mt. San Antonio College, hereinafter sometimes referred to as “Mt. San Antonio,” is a junior college of this state with its administration vested in the respondent board of trustees, hereinafter sometimes referred to ...
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This is an appeal from a judgment of conviction on three counts of forgery. In an information filed October 23, 1962, in Los Angeles County the defendant was charged in Count I with forgery in that she did on or about September 5, 1962, forge a check *890for the payment of $60 and did then utter the same knowing of the falsity of such check with intent to cheat Madeline Cernelli, Edward Suciu (her...
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Appellant sued respondent insurance company for the value of her diamond-studded lady’s wrist watch which disappeared during a shopping tour. Respondent had issued her a broad form theft policy covering her personal property. After judgment against her in the trial court she brings this appeal on a settled statement of facts, which may be substantially summarized as follows: On May 27, 1961 appell...
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Appellant Cecelia Wilders Price, defendant and cross-complainant below, and respondent Earl Marvin Price, plaintiff and cross-defendant below, were granted interlocutory decrees of divorce each against the other on the ground of extreme cruelty. The trial court determined the character of various items of property, awarded defendant alimony, directed plaintiff to pay $1,000 attorneys’ fees and ...
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This is an appeal by the People from an order setting aside an information against respondent on the ground that respondent had been committed without reasonable and probable cause. Question Presented Was the evidence adduced before the committing magistrate sufficient to hold respondent to answer for the offenses charged in the three counts of the information, or any of them? *15 Stat...
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This is an appeal from an order admitting, on offer of respondents, a one-page document to probate as a codicil to a three-page document which was offered by appellant and which, too, was admitted to probate. Appellant, John Moy, was the husband of Henrietta Vasche Moy, who died on September 28, 1960. She was 52 years old when she died, and had been married about eight years to John Moy. Althou...
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Appellant, Wilson Freeman, filed a complaint against respondents to quiet title to a parcel of real property on the ground of adverse possession; respondents answered and filed cross-complaints to quiet their respective titles to fractional interests claimed by each of them in the same property. After trial the court denied appellants any relief and quieted the title of the various respondents ...
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This is an appeal from a judgment against defendant-appellant, Webb, (1) in the amount of $9,009.45, plus $953.93 interest for commissions owed to respondent, Miller, for his services in connection with certain sales of real estate; (2) for repossession of certain personal property. The complaint here alleged that defendant and plaintiff, both licensed California real estate brokers, enter...
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An information was filed charging the appellant with three counts of furnishing heroin without a prescription in violation of Health and Safety Code section 11501—Count One alleging the offense was committed on February 1, 1961; Count Two on April 6, 1961; and Count Three on April 12, 1961; together with three prior convictions for violations of section 11500 of the Health and Safety Code, which ...
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Pietro Canale, half-brother of Bernardo Ventura, 1 deceased, has appealed from a judgment admitting to probate a will of decedent dated April 26, 1961, and denying probate of a prior purported will, and from an order granting a motion for a directed verdict made by the Attorney General. On March 23, 1962, one Mario Marion filed a petition for probate of will in the Superior Cour...
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Respondent secured a judgment against appellant in small claims court. Appellant duly appealed that judgment to the superior court. (Code Civ. Proe., § 117j.) There being no appearance at the time set for hearing in the superior court, that court entered judgment for respondent. A motion by appellant to vacate that judg-' ment, on the ground of failure to give statutory notice of hearing, was den...
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Appellant and respondent, mother and father, respectively, of the minor here involved, lived on a 640-acre ranch in the mountains near North Fork prior to their divorce, October 10, 1961. Their son, aged 13 at the time of the interlocutory decree, had grown up in the mountains; he liked ranch life and ranch work and owned several horses, a colt, and a dog. The mother was awarded custody of the ...
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Plaintiff appeals from judgment, after jury verdict, in favor of defendants. Questions Presented 1. Justification for instruction on waiver of right of way. 2. Sufficiency of evidence. Evidence About 10:30 a.m. of a clear, sunny day, plaintiff, 74 years of age, arrived at the.northwest corner of Van Ness Avenue and Sutter Street, San Francisco, intending to cross Van Ness Avenue. The in...
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Defendant appeals from judgment quieting title in plaintiff in certain real property. Question Presented May defendant on appeal for the first time question the description in the tax deed ? Record Plaintiff’s complaint alleged ownership in certain described *75 real property in Monterey County. 1 He alleged title by reason of a tax deed. Defendant fi...
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The sole question for our determination on this appeal is whether the instant action brought on a claim against the state for work done and materials furnished for a highway project is barred by the provisions of section 644 of the Government Code. The court below concluded that it was. Plaintiff appeals from an order sustaining a demurrer to its second amended complaint without leave to amend ...
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On June 20, 1960 the trial court entered judgment in favor of respondents. The record before us does not disclose any motion for a new trial. On August 17, 1961, appellant filed a motion to vacate the judgment, and this motion was denied by minute order on August 28, 1961. The appeal now before us is from the minute order by which the trial court refused to vacate its judgment. It is apparent f...
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Two appeals, which have been consolidated pursuant to stipulation, are before this court. In one case (Civ. No. 26412) the principal question presented is whether proper provision was made in the decree of final distribution in the estate of Henrietta Doescher, deceased, with respect to the amount of money which the appellant Minnie Jacoby Murray was entitled to receive under the will. 1 ...
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This appeal has been taken on behalf of a charitable corporation whose bequest was reduced under Probate Code, section 41,1 because the charitable bequests collectively exceeded one-third of the estate. Although the appeal is from the entire decree of distribution and order settling the executrix’ account, no questions are argued in the briefs except as to the application of section 41. The will o...
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Defendant was convicted after a court' trial of felony drunk driving. (Veh. Code, § 23101.) Defendant was found not guilty of “hit and run” driving. (Veh. Code, §§ 20001-20003.) He appeals from the order suspending judgment on the offense of which he was found guilty and granting probation, also from the order denying his motion for a new trial. The latter order being nonappealable, the appeal th...
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Respondent administrator (hereafter referred to as respondent) has moved to dismiss the appeal on the ground that it is frivolous. In Toohey v. Toohey (1950) 97 Cal.App.2d 84, 85 [217 P.2d 108], we said: “The appellate courts are reluctant to dismiss an appeal on the ground of frivolity. Normally, the determination that an appeal is frivolous requires a full considera...
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This is the second appeal in this divorce action. On the original trial, the court, on September 5, 1958: granted a decree of divorce to plaintiff wife; granted plaintiff 12 specified items of community property and “$737.62 from community bank account”; granted defendant husband 11 specified items of community property and “$150.00 from the community bank account”; and then continued: “3....
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Plaintiff instituted a taxpayer’s suit for declaratory relief seeking to nullify, as unconstitutional, City of Los Angeles Ordinance No. 118900 relating to rubbish collection, and to set aside a contract awarded for the sale of metals collected. Plaintiff has made six separate but futile attempts to state a cause of action by filing various amendments and supplements to his original compla...
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Plaintiff sought to recover $3,200 from defendants, alleging three counts: (1) an account stated, (2) an open book account, (3) the reasonable value of services rendered. Plaintiff recovered judgment on the third cause of action. The court found the reasonable value of the services rendered was $1,750, and judgment was entered against defendant Rae Hawkins individually, and two corporations, in...
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John S. Nielsen died intestate at Denver, Colorado, on September 13, 1960, leaving surviving him his widow (appellant herein), one brother and two sisters (who are the respondents on this appeal). The widow petitioned for letters of administration, alleging that, at- the time of his death, decedent was a resident of Los Angeles County, California. On December 5, 1960, by an order reciting deceden...
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This is an appeal from a judgment based upon a foreign judgment of the State of Arizona entered on January 21,1957. A summary of the facts is as follows: Appellant was personally served with a writ of garnishment in Phoenix, Arizona, on April 15, 1955. Subsequent to the service of the writ, appellant made a motion in the Arizona proceeding to quash service alleging, among other things, lac...
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Plaintiff seeks a disability pension from the City of Los Angeles (City) and Board of Pension Commissioners (Board). He was a duly appointed police officer of the City from April 11, 1941, to March 16, 1954, when he resigned for personal reasons. He filed his application for such pension on September 2, 1953, under the provisions of article XYII of the City Charter of Los Angeles, section 182, fo...
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By information defendant was charged with murder and two counts of abortion. Count II of the information charged defendant with the murder of Sylvia Rayner. Counts I and III charged the commission of abortions upon the persons of two women whom we designate by their given names, Brigitte and Katherine. Defendant pleaded not guilty to all counts. After jury trial defendant was found guilty as char...
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This is an appeal by the remainderman from an order of the probate court directing the trustee of a testamentary trust to invade the corpus to reimburse the life tenant for certain medical expenses. *169 The facts are not in dispute. The respondent, Phoebe M, W. Patten, was the sole life beneficiary of a testamentary trust created by the will of her deceased husband, Elmer E. Patt...
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Plaintiffs Paul Andrew Donnachie, Joan M. Donnachie and Robert P. Donnachie, appeal from separate judgments entered in favor of defendants East Bay Regional Park District, City of Oakland, City of Berkeley, and City of Piedmont. Plaintiff Paul Donnachie, a minor, brought this action through his guardian ad litem, Joan Donnachie, to recover damages for personal injuries sustained when he was k...
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Appellant, J. L. Dyer, was charged by information with robbery, kidnaping, rape, and three prior convictions which were admitted. After proper waiver of a jury trial, he was found guilty of kidnaping (Pen. Code, § 207), rape (Pen. Code, § 261) and robbery (Pen. Code, § 211). On this appeal from the judgment and the order denying his motion for a new trial, he contends that the evidence is insuffi...
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Motion by Attorney General to dismiss petitioner ’s appeal from an order denying his petition for quo warranto. Question Presented May a quo warranto proceeding be brought by a private person ? No. Record Petitioner, in propria persona, filed in the Superior Court of Marin County a petition for writ of quo warranto in a proceeding which he entitled “The People of the State of California ...
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This is an action brought by Scott Fortner, a minor, and his father and guardian ad litem, Troy Fortner,, for damages for personal injuries sustained by the minor in a collision between the motorcycle on which he was riding with his uncle, and a truck owned and operated by the respondent, N. F. Bruhn. The case was tried before a jury which returned a verdict in favor of the responden...
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Defendants appeal from a judgment quieting title to a house and lot in plaintiff and awarding damages to plaintiff for the withholding of possession thereof by defendants. Plaintiff’s Case. On November 27, 1957, Frederick M. Horrigan executed a grant deed of the property to plaintiff and delivered it to his attorney, David H. Gill, with the following signed instructions: “You are instructed t...
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Defendant appeals from a judgment entered in favor of plaintiff in an action on a promissory note. The note is typewritten and is in the following words and figures: “$1,500.00 January 16, 1960 “For Value Received, I promise to pay to Joe Kirkwood, or order, at Fort Bragg, California, the sum of Fifteen Hundred and no/100 Dollars ($1,500.00), payable as follows: The sum of $.50 for each thous...
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Cross-complainant appeals from an order striking his cross-complaint as to respondent. Memorandum decision announced grant of the motion and directed respondent's counsel to prepare formal order. That order was dated and ified December 20, 1961. Appellant had 60 days within which to file his notice of appeal (Rules on Appeal, rule 2(a) * ) That time ran from ffling of the ...
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Plaintiff appeals from an order setting aside default and default judgment. 1 Question Presented Did the court abuse its discretion in setting aside the default? *218 Record Plaintiff filed a complaint against defendant Dorothy Taliaferro (now Dorothy Davis) to quiet title to certain property in Contra Costa County. Defendant defaulted but such default was set aside on July 26, 1954. ...
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Plaintiffs (lessors) appeal from an adverse judgment in an action to reform a written lease agreement and to recover damages from defendant (lessee) for the breach of such agreement, as reformed. The record is confined to the clerk’s transcript. The sole issue on appeal is whether there were irregularities in the proceedings of the trial court by which plaintiffs were prevented from having a fa...
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This is an appeal by plaintiff Lawrence Wesley Smith, a minor, through his guardian ad Utem, Miga L. Smith, his mother, from a judgment rendered against him in his suit brought to recover for his personal injuries suffered when struck by a truck driven by defendant David Wemmer, during the course of his employment by defendant Garold Wemmer, doing business as Wemmer Ready Mix Company. The fac...
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In this rear end automobile collision case plaintiff is appealing from a judgment based upon a jury verdict for $1,500, which plaintiff considers inadequate. Defendants are the owner and driver of the vehicle which struck plaintiff’s automobile. The collision occurred at 3:50 p.m. on Thursday, February 20, 1958. On the following Monday *242 plaintiff returned to Ms employment as an air-conditio...
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J.—A jury found the defendant guilty of murder of the first degree and determined that the penalty should be imprisonment for life. The trial court denied the defendant’s motion for a new trial and sentenced him in accordance with the determination of the jury. The appeal is from the judgment and from the order denying the motion for a new trial. 1 The victim was Vivian Marie Musgrave. She li...
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In separate counts of the information defendant was charged with violation of Penal Code, section 337a, subdivisions 1 (bookmaking), 2 (occupying an enclosure for recording bets), 4 (recording a bet), and 6 (making or accepting a bet). A jury found defendant not guilty of violating subdivision 1 and guilty of the other three counts. The trial court suspended proceedings and placed defendant on *...
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In this action by plaintiff-respondent Lee Jackson for damages for malicious prosecution against defendants-appellants Euel Beckham, Buel Beckham and Beckham Bros., a copartnership, it is alleged that plaintiff was an employee of defendants and desired to take time off to move some of his furniture from Beaumont to Cottonwood, about 640 miles from Beaumont, where his wife was opening a small bu...
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Defendant-appellant was charged in two counts with a felony, in violation of Penal Code, section 217 (assault with a deadly weapon with intent to commit murder) on June 23, 1961; in count one as against Charles Scott and in count two as against Joe Holland. He entered a plea of not guilty to both counts. Defendant’s motion to dismiss and to enter a directed verdict of not guilty on the ground tha...
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In this action by parents for the wrongful death of their son while working on a construction job, the sole question before us is whether the trial court’s determination that the decedent was an independent contractor rather than an employee of the defendant is properly supported by the law and the evidence. We have concluded that it is and that the judgment in favor of the plaintiffs and again...
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Defendant appeals from judgment after jury verdicts, finding him guilty of 10 counts of abortion. 1 Questions Peesented. 1. Was poll of jury improperly conducted ? 2. Was evidence of undenied accusations admissible? 3. Was evidence of defendant’s relationship with one prosecutrix unduly limited ? 4. Were the abortees corroborated? 5. Was instruction that defendant was lawfully entit...
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This is an appeal from a decree of the trial court, directing specific performance of an oral option to purchase real property. Appellant rested his defense on *302 tiie statute of frauds (Code Civ. Proc. § 1973, sulid. 4; Civil Code § 1624, subd. 4). Mrs. Georgia Cordry was the owner of approximately 640 acres of land near Livermore. Respondent, Jack Pulse, and Mrs. Cordry li...
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This is an appeal by plaintiff from a summary judgment entered in favor of defendants. The action is for damages for personal injuries suffered by plaintiff who was injured when struck by the mantelpiece and bricks from a fireplace in a dwelling owned by defendants. The house was then occupied by William Metcalf as the tenant of the premises and at the time of her injury plaintiff was present upo...
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Robert Michael Collins was accused by information of burglary and by amendment of the information was also accused of receiving stolen property. In a jury trial he was convicted of burglary of the second degree and acquitted of having received stolen property. He was sentenced to state prison. He appeals from the judgment, and notices an appeal from an order denying his motion for new trial. The ...
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Hall’s Air Conditioning and Plumbing, as subcontractor, plaintiff-appellant, creditor and garnishor, brought an action against M. Z. Collins, individually and doing business as M. Z. Collins Construction Company, a general contractor, and defendant herein in the lower court, for *316 $6,016.34 upon a written contract between them whereby plaintiff, as subcontractor, furnished plumbing and air c...
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Defendant-appellant was charged with violation of Penal Code, section 475a (possession of a forged check with intent to defraud), i.e., he had in his possession a completed check of Arthur W. Gilmore, dated August 17, 1962, in the sum of $150, with intent to utter and pass the same, and with intent to defraud another person. He pleaded not guilty, waived a jury trial and was found guilty by the...
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Petitioner, Subsequent Injuries Fund, seeks annulment of the commission’s opinion and decision, after reconsideration, insofar as it denies to petitioner credit for social security disability payments being made to the applicant. Question Presented. . - ■ Does section 4753, Labor Code, entitle Subsequent Injuries Fund to credit for social security disability benefits received by an injured wo...
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Peremptory writ of mandate directed appellants, the members of the San Francisco Civil Service Commission, to reinstate respondent employee to a rank from which he had been reduced. This appeal, followed. Respondent Woods, a city employee, was named in a list of eligibles for promotion to the next higher classification (F410e Engineer [Electrical]). A vacancy occurred, the man next above W...
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A general demurrer to plaintiff’s second amended complaint was sustained without leave to amend. He has appealed from the ensuing judgment of dismissal. Plaintiff’s grievance grows out of the termination of his employment by the Roeketdyne Division of North American Aviation. Appearing in propria persona he seeks to recover damages for defamation, interference with contract rights, mental angui...
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Plaintiff is appealing from a judgment of non-suit in his action for damages for personal injuries sustained while driving his automobile on the Hollywood Freeway. Defendants are members of a joint venture who were operating a large truck on the same freeway. It is necessary here to review the evidence in the light of the familiar rule that a nonsuit may be affirmed on appeal only when the...
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This is an appeal from a judgment entered pursuant to a jury verdict for defendants, in a malpractice action. Plaintiffs-appellants are husband and wife, their interests are identical insofar as this appeal is concerned, and for convenience Bessie Gerhardt, the patient, is hereinafter referred to as “plaintiff.” The thirteen defendants-respondents are doctors and members of the Fresno Medical Gro...
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Defendant was charged in an information with, and after a trial by jury convicted of, the sale of marijuana in violation of section 11531 of the Health and Safety Code. He appeals from the judgment. On the morning of February 9, 1962, Inspectors Martin and Lawler of the narcotics detail of the San Francisco Police Department met by prearrangement one John Gonzales, an informant, at the corner o...
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Plaintiffs Ed Campidonica and Permanente Cement Company appeal from a judgment of dismissal entered upon the sustaining of a demurrer to their complaint without leave to amend. *405 The essential allegations of the complaint are as follows: On December 29, 1955, Bridge, a truck driver employed by Miles & Sons Trucking Service, took his employer’s truck, which was insured by defend...
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In six counts of an information, the defendant ivas accused of attempting to receive stolen property in that on six specified dates he did unlaAvfully attempt to buy and receive certain property, to vrit, advance telephone directory supplement, believing that said property had been stolen, and did conceal and Avithhold said property from the owner, Pacific Telephone and Telegraph (Company), belie...
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This is an appeal from a judgment of guilty of robbery (Pen. Code, § 211) and from an order denying a motion for new trial. In an information filed in Los Angeles County on November 15, 1961, appellant with his codefendant Mosley was charged with robbing ITenry L. Turner of his wallet and money on September 13, 1961. Appellant pleaded not guilty. He was represented by separate counsel and a jur...
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This is an appeal from the “judgment and sentence” wherein appellant was convicted of possessing heroin. In an information filed in Los Angeles County on October 10, 1961, defendant was charged with possessing heroin on July 20, 1961. She was represented by private counsel at all stages of the proceedings. A motion under section 995, Penal Code, was denied and she pleaded not guilty. A jury tri...
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Plaintiff, appellant, who was employed by Guy F. Atkinson Company, was injured when steel bars being hoisted by defendant Gilmore-Skoubye Company fell and struck him. An adjuster for Gilmore-Skoubye Company’s insurance carrier called on plaintiff and arranged a settlement of $140, which was paid. A release was signed by appellant, which contains the words, written by the adjuster, “This release d...
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Charged with possession of morphine and codeine, defendant pleaded guilty, was sentenced to prison, and, acting in propria persona, filed notice of appeal. We appointed counsel for him. The Attorney General moved to dismiss the appeal on the ground it is frivolous. An appeal from judgment entered upon a guilty plea does not raise issues on the merits, but calls for consideration only of er...
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Defendants appeal from judgment, after jury trial, of first degree murder and second degree robbery, and purport to appeal from denial of motion for new trial. Questions Presented 1. Were the statements to the police free and voluntary? 2. Were the statements to the probation officer free and voluntary ? 3. Instructions given and refused. 4. Should the court have reduce...
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City of San Bruno and certain of its officers appeal from a judgment which (1) declares Ordinance No. 822, passed in pursuance of a master plan which zones all of the land within the city, to be invalid, void and of no effect insofar as it applies to the westerly 77 acres of plaintiffs’ property; (2) declares that earlier zoning ordinances are in full force and effect; (3) enjoins the city and ...
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The defendants Cavanaugh and Plastic Process Company have appealed from a judgment 1 in an action arising out of the failure of a radiant heating system which was installed in the plaintiff’s church, to function properly. Cavanaugh was the contractor who made the installation. *497 The plastic tubing or pipe which proved to be inefficient for the particular use was manuf...
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In this proceeding the petitioner seeks a writ of certiorari so that a review may be had of the action taken by the superior court with respect to a criminal prosecution. Petitioner also seeks the issuance of a peremptory writ of mandate for the purpose of ordering the superior court to proceed with the trial of the defendant in the case of People v. Roy Robert Lauman. On August 21, 1962, t...
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The defendant appeals from a decree of specific performance of an alleged agreement to encumber real property. The appellant represents herself and has filed a voluminous brief which urges numerous erroneous contentions and raises inconsequential issues. She argues at length that the trial court should have accepted her evidence with regard to the existence of the indebtedness rather than that...
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The plaintiff obtained a decree for the foreclosure of a mechanic’s lien on certain real property in San Bernardino County because of the furnishing by him of concrete slabs, floors and concrete foundations for residences being erected on the premises described, of a total reasonable value of $15,600, of which the sum of $8,705 was coneededly paid, leaving a balance due of $6,895. The defendant...
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In this matter plaintiff has appealed from an order of the superior court awarding the custody of the minor daughter of the parties, born September 4, 1955, to plaintiff’s ex-husband, the defendant, and the physical care and control of the child to the paternal grandparents. There was no finding that the plaintiff was unfit. At the time plaintiff obtained an interlocutory judgment of divorce from...
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The litigants are father and son. Frederick H. Miller, Jr., sued Frederick H. Miller, alleging that the defendant was trustee of an express trust made up of property which had been accumulated by the trustee over a period of some 19 years. The plaintiff was awarded judgment against his father in the sum of $5,319.66, besides $3,512.08 interest and costs of $113.61. Plaintiff’s mother testi...
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Appellant and his codefendant were each charged with and convicted by the court sitting without a jury of the crime of possession of marijuana, in violation of Health and Safety Code, section 11530. Appellant admitted a similar prior offense in 1954. Defendant Lyon was committed to state prison and he appealed. The only question raised on this appeal is the claim of unreasonable search and seiz...
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The defendant was convicted of the crime of possession of marijuana (Health & Saf. Code, § 11530) and was sentenced to imprisonment in state’s prison. He does not claim that the evidence, if properly admitted, is insufficient to warrant the verdict; his contentions on appeal are that he was illegally arrested, that marijuana found in his clothing as a result of the illegal arrest should not hav...
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Plaintiff, as trustee of the estate of William Poole, a bankrupt, brought this action to set aside Poole’s conveyance to defendant, then his wife, of his interest in a duplex house. It was stipulated that if plaintiff prevailed his recovery should be a lien limited to the amount by which the value of the property exceeded the exemption under a prior declaration of homestead. After trial without j...
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The appellant was charged with four violations of Penal Code section 211 (robbery) and also with a prior felony conviction (robbery). His defense was an alibi. He was convicted on all charges, but on appeal the judgment was reversed. (See People v. Renchie, 201 Cal.App. 2d 1 [19 Cal.Rptr. 734].) On retrial appellant was again found guilty and now presents this appeal from his second convictio...
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There are three appeals herein by defendant Andrew J. Crevolin. Mrs. Jane Ánne Crevolin commenced a divorce action and obtained a preliminary order that defendant Mr. Crevolin pay $10,000 on account of attorneys’ fees, and $10,000 for costs and expenses. The interlocutory decree of divorce, obtained by her, reserved jurisdiction to determine the additional amounts of attorneys’ fees, costs, and...
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Appeal by plaintiff from an order recalling a writ of execution, vacating the order authorizing its issuance, and restraining the levy of further writs. • In June 1950, plaintiff (wife) and defendant (husband) made a property settlement agreement which stated, among other things, that they would convey certain real property (duplex apartment house and lot) to plaintiff and their two children; o...
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Calvin Otis Townsend, claiming to be an assignee of heirs of Alice P. Simmons, deceased, brought a petition for distribution of a portion of the estate of decedent, vis., a one-half undivided interest in a parcel of real property-in the City of Downey, California.* Petitioner alleged that the parcel was not included in the inventory and appraisement filed in the original probate proceedings, in wh...
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Defendant appeals from a judgment holding him liable for the payment of a real estate broker’s commission. He makes no specific assignment of error, but states that the issues are: (1) whether or not there was a sale or exchange of the property during the life of the listing agreement, and (2) if so, whether or not the broker was the procuring cause of the sale. Since the trial court made expre...
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Defendant appeals from the judgment of conviction which was entered following a nonjury trial upon an information charging him with violating section 20001 of the Vehicle Code, commonly referred to as “hit and run.” In essence, appellant challenges the sufficiency of the evidence to establish the requisite knowledge on his part that an accident had occurred resulting in injury to another. (Cf. ...
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Defendants Charles Davis and Anna Lee Edwards were found guilty, after a jury trial, of conspiracy (Pen. Code, § 182) to sell marijuana (Health & Saf. Code, § 11531) and defendant Davis was separately found guilty of the sale of marijuana. Davis has appealed from the judgment following said verdicts. Anna Edwards has not appealed. A contention that the judgment is unsupported by substantia...
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The only issue presented to us on appeal concerns claimed error of the trial court in the content of an instruction given to the jury on the guest versus passenger relationship, and in refusing an instruction submitted by the appellant upon this subject. Quicksall was injured in a one-car accident while riding in a car owned and driven by Rueben Levy. The two men were returning from a dove hunt...
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Defendant appeals from a conviction of violating Penal Code section 281 (bigamy) after a jury trial. On July 21, 1959, defendant married Precious Perritt. The parties separated in March 1960, and shortly thereafter they discussed the possibility of a Nevada divorce, which Precious agreed to obtain at some indefinite future date. Instead, Precious obtained an interlocutory decree of divorce in C...
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By an amended information the defendant Sanders and Jack O’Neal Haekett were charged with the crime of robbery. (Pen. Code, § 211.) It was alleged that money was taken from Henry F. Zander, who was “a person who was then and there performing his duties as operator of a motor vehicle used for the transportation of persons for hire.” 1 It was further alleged that at the time of the com *608 mis...
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The Sacramento and San Joaquin Drainage District was the plaintiff-eondemner in a condemnation action in which Thomas H. Reed and others were the defendants. The condemner appealed to this court from the judgment which fixed the amount of damages to be awarded. We reversed that portion of the judgment fixing severance damages and remanded the cause for a new trial on that issue. (215 Cal.App.2d...
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Appellants were dismissed from their positions as officers of the California State Police, and they seek reinstatement by writ of mandate. They make two points: (1) that the State Personnel Board did not evaluate the ease in compliance with law, and (2) that orders of appellants] *616 superior officers directing appellants to take polygraph, that is, lie-detector, tests were not lawful orders. ...
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In this equity suit plaintiff seeks to establish that certain real property constituting the home of herself and her deceased husband, Mort D. Goldberg, was joint tenancy property which passed automatically to her upon his death; that certain other real and personal property (the major portion of the estate) was community property in which she owned a one-half interest regardless of the last wi...
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This appeal is taken from a judgment discharging an alternative writ of prohibition and denying appellants’ petition for a peremptory writ. Appellants and others were named as defendants in an action brought by the Attorney General in the Los Angeles Municipal Court. Appellants demurred to the complaint and moved for its dismissal on the ground of lack of jurisdiction. These demurrers' wer...
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Defendant Raymond Durazo and his co-defendant Constantine Mirosnik were convicted of violation of section 11500, Health and Safety Code, in that they did on October 19, 1961, “willfully, unlawfully and feloniously have possession of a narcotic, to wit, amidone.” Defendant appeals, claiming (1) that the evidence is insufficient to sustain the verdict, and (2) prejudicial misconduct of the prosec...
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Plaintiff appeals from a judgment by the Yolo County Superior Court holding that the appellant had no claim against the respondents for costs appellant incurred for disinterment of Jeanette Bush in Washington and reburial in California and that the respondents were not liable to appellant for the value of the Jeanette Bush estate. On the date of the oral argument before this court appellant fil...
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In this appeal from a conviction by a jury for perjury, the contentions are: (1) a defective information failing to state a public offense, (2) insufficiency of the evidence to support the verdict, and (3) that inadmissible evidence admitted, although later stricken by the court, was so prejudicial its effect upon the jury could not be cured. The information alleged inter alia that defendant ...
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The plaintiff, William E. Daywalt, who is owner of a parcel of land on the Kern River near Kern-ville, sued the defendants to establish a right of way across their neighboring parcels, to enjoin interference with his alleged easement, and for damages; he appeals from a judgment for the defendants. In his complaint he advanced three different theories: he alleged that he had an easement by impli...
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This is an appeal by plaintiff from a judgment awarding costs and attorneys’ fees after the abandonment of an action in eminent domain. 1 Questions Presented Several questions have been presented by this appeal. One of the questions presented is whether the trial judge was disqualified from sitting or acting in the proceeding for the determination of costs, disbursements, ...
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Tostado and codefendant Casey were convicted by a jury of selling marijuana to an undercover police officer on April 5, 1962; (Health & Saf. Code, § 11531); Tostado appeals from the judgment and order denying his motion for new trial. The appeal from the order is dismissed. (Pen. Code, § 1237; People v. Eppers, 205 Cal.App.2d 727 [23 Cal.Rptr. 222].) Gary W...
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Plaintiff, Waverly Productions, Inc., appeals from an adverse judgment in favor of defendant RKO General, Inc., rendered in an action for declaratory relief which grew out of a motion picture distribution agreement between the two companies dated October 14, 1957. 1 Plaintiff *725 agreed to produce two pictures having release titles “En- . chanted Island” and “From the Earth to the Moon,” and...
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Plaintiff Harold C. Kavalaris sued appellant Anthony Bros., Inc., for negligent breach of contract to construct for him a swimming pool in his residence property. A few months after its completion the pool settled and cracked and leaked and had to be repaired and reconstructed to such an extent that the court awarded plaintiff damages in the sum of $7,847.33. Defendant appeals. Its main co...
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Convicted of two counts of abortion (Pen. Code, § 274) committed March 10, 1961, upon Marilyn Carrico and Judy Breazeale, respectively, defendant appeals from the judgment and attempts to appeal from certain orders hereinafter mentioned. His codefendant Lynne Holzman pleaded guilty and testified for the prosecution. Viewing the evidence most favorably to respondents, as we must (Peop...
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We treat this appeal as one from an order granting a preliminary injunction. We have determined that that order must be reversed. The plaintiff brought an action to quiet his title to an easement in a roadway over the land of the defendant Santa Margarita Land and Cattle Company and to restrain that defendant and others from interfering with the plaintiff’s use thereof. A temporary restrai...
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This is an appeal by the plaintiff from" á judgment entered after the general demurrer of the defendant as administratrix to the complaint had been sustained without leave to amend on the ground that there was no allegation that a claim against the estate of Joe Leonard McMurry, deceased, had been filed or presented. 1 In the complaint, which was filed on June 30, 1961, it was alle...
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East Del Paso Heights, a corporation, appeals from a summary judgment in favor of Union Paving Company in a quiet title action. The facts disclose that Union Paving Company filed this action on August 9, 1960, to quiet title to a parcel of real property in Sacramento County. Defendants James Weldon Beaty and his wife, Lois Beaty, filed an answer in which they denied that Union was the owne...
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A jury found defendant guilty of kidnapping for purposes of robbery, in which the victim suffered bodily harm (Pen. Code, § 209), robbery (§ 211), rape (§ 261), two counts of sex perversion (§ 288a), assault with a deadly weapon (§ 245), and assault with a deadly weapon upon a police officer (§ 245, subd. (b)), and fixed life imprisonment without possibility of parole as the kidnapping penalty. D...
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Plaintiff sued Los Angeles Biltmore Hotel Corporation for personal injuries resulting from a fall in the Biltmore Hotel. Judgment in favor of defendant was entered on a jury verdict; her motion for a new trial was denied. Plaintiff appeals from the judgment. It is undisputed that plaintiff, a resident of Oroville, was staying at the hotel and was an invitee on defendant’s premises. She was...
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In August 1956 plaintiff, who was engaged in the business of packaging and selling fertilizer, entered into a contract with defendants for the purchase of their peat moss business. This agreement provided, inter alia: “Sellers [defendants] agree that they will not engage in the business of selling peat, nor sell to any other person or enterprise any peat, during the term of this agre...
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This is the second appeal in this case. The first resulted in a reversal of the judgment upon the ground that the contract in suit did not contravene the public policy of this state and was, therefore, enforceable in this jurisdiction. (Nevcal Enterprises, Inc. v. Cal-Neva Lodge, Inc., 194 Cal.App.2d 177 [14 Cal.Rptr. 805].) Following the issuance of the remittitur, and by...
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Robert and Mary Clark were the parents of the four minor daughters whose guardianship is here in dispute. Living with them was Jacqueline Forester, a child of Mrs. Clark by a former marriage. Jacqueline’s guardianship is not in issue. Mr. and Mrs. Clark resided in San Jose, then moved to Santa Paula. Their marriage was not a happy one. There is some evidence of drinking habits on the part of bo...
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This appeal originated in an unlawful detainer action brought by members of two partnerships, Sands Management Company and Sands Associates, plaintiffs-appellants, against members of a partnership, Metzdorf Associates, defendants-respondents, to recover possession of premises consisting of a hotel-motel facility, including cocktail lounge and restaurant, known as The Sands Caravan Inn, hereinaf...
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Appellant, appearing in propria persona, as he did in the trial court, having revoked his own request for counsel, appeals from a judgment after a jury verdict convicting him of the crime of violating section 476a of the Penal Code (issuing a cheek without sufficient funds with intent to defraud) and from the order denying his motion for a new trial. (An order denying a new trial in a criminal ca...
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Defendant and cross-complainant J. C. Penney Company appeals from judgment dismissing its cross-complaint against cross-defendant Westinghouse Electric Corporation entered upon order sustaining demurrer to cross-complaint. *836 Question Presented Did the cross-complaint state a cause of action? Record Plaintiff Juanita F. Ellison filed a complaint against defendant ...
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This is an appeal by plaintiffs from a judgment in favor of defendant and cross-complainant adjudging that plaintiffs take nothing by their complaint seeking rescission, or, in the alternative, damages. The Facts On August 13, 1959, appellant 1 and respondent entered into a written agreement wherein the former agreed to buy and the latter agreed to sell 25 shares of the...
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Plaintiff, while employed by defendant Southern Pacific, sustained injuries on property owned by defendant General Motors and serviced by Southern Pacific. Damages were demanded from Southern Pacific under the provisions of the Federal Employers Liability Act, and from General Motors for negligent maintenance of its premises. The instant appeal is presented on a settled statement (Cal. Rules of...
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In this action plaintiff, a tenant, sought a recovery of damages from defendants, his landlords, for damages allegedly sustained by him as the result of the malfunctioning of a gas wall heater which had been installed in the leased premises. Plaintiff appeals from the judgment entered in favor of defendants following a jury trial. We shall summarize the undisputed facts disclosed by our ex...
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The plaintiff corporation is engaged in - the wholesale lumber business. Plaintiff brought this action to foreclose mechanics’- liens upon residence properties constructed by the defendant corporation as a part of a tract development. Liens were asserted against each of the residence properties and a judgment was rendered in favor of plaintiff *881 for the foreclosure of such liens...
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Jules J. Pedesclaux and a codefendant were found to be guilty by a jury of the crime of robbery. Pedesclaux has appealed from the judgment entered. The facts as shown by the record are as follows: The victim, Hing Kung, lived in Locke, California. On April 29, 1962, he went to Stockton, California, from Sacramento, California, and took a room at the MacArthur Hotel on Lafayette Street. He...
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The People appeal from an order setting aside an information which charged the defendants with violation of Penal Code section 243, battery against a police officer, and violation of Penal Code section 148, resisting arrest. The case came before the superior court, just as it is before us, on the reporter’s transcript of the preliminary examination held in the Dos Palos Judicial District Court ...
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Defendant Eldon 0. Haldane appeals in propria persona from an order of July 19, 1962, denying Ms motion for summary judgment of restitution against attorneys Leonard S. Sands and Colton, Thompson and Thompson, who represent respondent wife; also “from interim adverse orders of July 5, 1962 denying his motion to disqualify and discipline the said attorneys on stated grounds.” The motion itself i...
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This is an appeal by proponent and appellant, Ruth P. Gonynor, of the will of John Rutledge Larendon, deceased, from a judgment denying probate thereof. The case was tried without a jury; judgment was entered following findings of fact that Larendon lacked testamentary *16 capacity and was unduly influenced by one Robert Dalton at the time he executed the will. Appellant contends the findings...
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The p1aintiff, Frank James Thompson, on April 18, 1960, filed a complaint for damages, alleging that as a proximate result of the negligence of the defendants in the operation of an automobile it collided with a ear driven by him, causing him general damages for personal injuries in the sum of $90,000 besides medical and incidental expenses, loss of earnings, loss of use of his automobile, expe...
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Appellant appeals from a judgment of conviction of possessing heroin (Health & Saf. Code, § 11500) entered after a plea of guilty. Appellant and his wife, Jean Gannaro, were indicted on November 9, 1961, for an alleged violation of Health and Safety Code section 11500.5 (possession of heroin for sale). Their motion to dismiss the indictment made pursuant to Penal Code section 995 was denie...
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Plaintiff wife appeals from an interlocutory decree of divorce, in her favor. While the notice of appeal is directed to the entire decree, both parties have treated the appeal as relating only to the property division incorporated therein. The trial covered three days, almost all of which was devoted to the matter of the ownership of a piece of real property, referred to in the record as the 11 Or...
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By information (SC 245144), the defendants and Virginia Aguilar were charged in Count I with conspiracy to commit abortions in violation of section 274 of the Penal Code and in Count II with attempted abortion in violation of section 664 of the Penal Code. Several overt acts were alleged in the conspiracy count. The information charged defendant MacEwing with a prior conviction of conspiracy and ...
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Benjamin A. Dare, defendant below, appeals from an order denying his motion, made pursuant to section 675b of the Code of Civil Procedure and upon the grounds of his subsequent bankruptcy, to discharge the judgment rendered herein against Dare and in favor of respondent Yellow Creek Logging Corporation, hereafter for brevity referred to as Yellow Creek. Respondent purchased from appellant ...
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Plaintiffs seek damages arising out of their purchase from defendants of corporate shares for which no permit had been issued at time of sale. The ease was tried to the court, without jury. Judgment was for defendants on the ground the statute of limitations had run. Plaintiffs appeal. Four plaintiffs purchased stock in April 1952, and one bought additional shares in January 1953. Permit of the Co...
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Plaintiff Victor R. Miller brought an action for money and an accounting against defendant-appellant Jack L. Ran (individually and as trustee of Aviation Export Company, Ltd., Inc.) as well as against other defendants who are not involved in the instant appeal. While there is no real disagreement between the parties as to the facts involved, it is the proper legal significance of these facts wh...
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Defendant has appealed from the judgment rendered against it in this action which was brought on the theory that defendant, acting as an escrow agent for one Patricia Kennedy, had cooperated with her in fraudulently representing to the plaintiff that he would receive over $4,000 out of the escrow. The trial court did not find the allegations of fraud to be true, but based its judgment on the clos...
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The plaintiffs, claiming that the defendant had a continuing obligation to account to them for a percentage of the value of the oil, and other hydrocarbon substances, that it obtained by slant drilling from under their land, brought this action for a declaratory judgment. The defendant not only confirmed the existence of differing views, by answer, but also filed a cross-complaint in interpleader,...
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The sum of $10,000, one-half of that paid to the defendant under an insurance policy on the life of his one-time partner, is the main stake in this *93 action. For several years preceding his death, Frank L. Esswein and the defendant were partners operating under the name of E & R Machine and Mfg. Co. The plaintiff, the widow and executrix of the will of Frank L. Esswein, claiming ...
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Defendant was convicted by a jury of violation of section 211 of the Penal Code on four counts of robbery. A motion for a new trial and probation were denied. Sentence for the statutory period was pronounced. Defendant appeals from the judgment, sentence, and order denying a new trial. The contentions of defendant are: 1. There "was insufficient evidence for conviction. 2. The court erred in impro...
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Appellants, City of La Habra, a municipal corporation and La Habra Civic Center Authority, a nonprofit corporation, petitioned in the superior court for a writ of mandate requiring the respondent as Mayor of the City of La Habra, to sign a lease in behalf of the city with the petitioner, La Habra Civic Center Authority. The matter is before us on a stipulated set of facts. In substance, the cit...
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An information was filed charging the defendants with the violation of section 211a of the Penal Code by the armed robbery of Mrs. Sally Temple, a similar violation of armed robbery involving Mr. Temple, a count charging the kidnaping of Mrs. Temple, a similar violation as to Mr. Temple, a count charging violation of Penal Code section 459 for burglary and entering the dwelling house of Mr. and...
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In this action on a building contract, plaintiffs and cross-defendants (hereinafter called appellants) appeal from a judgment, after a nonjury trial, which with one minor exception denies them recovery on their complaint and' awards defendants • and cross-complainants (hereinafter called respondents) the sum of $1,750 on their cross-complaint together with costs of suit and other relief. Appell...
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This is an appeal by defendant property owners from a preliminary judgment in condemnation in favor of plaintiff city for the fee title absolute to certain property located in unincorporated territory of the County of Santa Barbara. The city council, by resolution, resolved that public interest and necessity required the acquisition of the property for airport clear zone purposes. It was stated...
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In 1955, plaintiff purchased a new Ford automobile from Culver Motors, a dealer in Ford automobiles. In 1956, while driving in Colorado, plaintiff was involved in an auto accident whereby his car was badly wrecked and in which he received personal injuries. In 1957, plaintiff instituted suit against the Ford Motor Company (hereinafter referred to as Ford), and Goodyear Tire & Rubber Company (he...
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In an information filed by the District Attorney of Los Angeles County, Juanita Josephine Shead and Charles Lee Cooke were charged with abortion in violation of section 274 of the Penal Code. Pursuant to jury waiver and stipulation of defendants and all counsel, *141the cause was submitted to the court on the testimony contained in the transcript of the proceedings had at the preliminary hearing. ...
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This is an appeal by the plaintiff, Francisca Godinez, the administratrix of the estate of G. Godinez, as trustee on behalf of his heirs, from a judgment entered on a jury verdict in favor of all the respondents, in her action for wrongful death. Appellant’s husband died as a result of injuries received while a guest in an automobile owned and operated by the respondent, J. G. Beruman, which co...
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Plaintiff has filed two separate notices of appeal. The first notice of appeal (filed October 9, 1961) discloses that plaintiff appeals “from the Judgment made and entered in said action, and from the Order denying plaintiffs [sic] Motion for New Trial in said action, and from the Order striking from the files the Declaration of plaintiff of bias and prejudice held by judge [sic] Benjamin Landi...
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This is an action for damages for personal injuries resulting from a collision of plaintiff’s automobile and defendant’s truck at an intersection of streets in Los Angeles. Defendant filed a cross-complaint. Judgment, upon verdicts, was in favor of defendant upon the complaint, and *165in favor of cross-defendant (plaintiff) upon the cross-complaint. Plaintiff appeals from the judgment. Appellant ...
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Plaintiff appeals from the order “granting Defendants’ Motions for an Order to Quash and Recall a Writ of Execution and for [sic] an Order Cancelling Judgment. ...” A brief résumé of the facts is as follows: On March 2, 1953, defendants executed a declaration of homestead (joint declaration of husband and wife). 1 It was recorded on March 3,1953. On October 1,1951, defendants and Hugo a...
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This is an appeal from a judgment adjudging that plaintiff is not entitled to a refund of use taxes paid to the state in the amount of $181,385.61. The taxes involved are for a five-year period from July 1, 1952, to June 30, 1957, and were assessed by respondent under the California Sales and Use Tax' Law and paid under protest by appellant. *183 The facts were stipulated in ...
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The People appeal from an order granting defendant’s motion to dismiss the information under section 995 of the Penal Code. He was accused of unlawfully possessing marijuana. The record on appeal does not include a recital of the contents of the motion. Said section 995 provides, in part, that an information must be set aside, upon motion of the defendant, if the defendant has not been legally ...
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Plaintiff, the registered owner of a certain automobile, sued the City of Pomona and two of its police officers for conversion of the vehicle. The court rendered judgment for the defendants. Plaintiff has appealed. Plaintiff claimed that the two officers, as a personal favor to his former wife, required a party in rightful possession of the vehicle to give it up and deliver it to her. The defen...
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By this petition, National Automobile & Casualty Insurance Company seeks the annulment of a workmen’s compensation award made to Charles R. Gardner by the Industrial Accident Commission. In our opinion the award was proper under the governing law. On August 17, 1957, Gardner was employed as a truck driver and swamper by the Ogier Hay and Grain Company. He sustained an injury to his back wh...
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Petitioner is the plaintiff in a civil action which he began in the superior court to enforce a written contract of employment against his employers, National General Corporation (formerly named National Theatres and Television, Inc.) and its subsidiary, Fox West Coast Theatres Corporation, who will be referred to collectively as “National.” The latter made a motion in the superior court for an...
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Accused by information of three offenses of grand theft, defendant was convicted in a jury trial of two offenses; no agreement having been reached as to a third count it was dismissed and defendant was granted probation conditioned upon his spending 90 days in jail and paying a fine of $200. He appealed from the order granting probation as from a judgment. The offenses consisted of defendant’s ...
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We set forth the history of the relations between the parties, and their contentions in this court, so far as we can ascertain them from the quite sketchy briefs on file and from our own examination of the record: Defendant, Grace Baptist Church of Oxnard, desired to erect a new church. It located a plot of land suitable for that purpose, but which in area greatly exceeded the needs of the...
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These are appeals from separate orders of the superior court sitting in probate in the estate of Harry Auslender, deceased. The cases were consolidated for decision in this court. The appeal in number 10592 is concerned with the following paragraphs of an order entered April 3,1962: “4. The Report and Second Account of Morris Auslen as Administrator, is hereby settled, allowed and approved in all ...
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Appellant Forrest H. Seter is one of six defendants indicted and tried for conspiracy to commit theft. Three of said defendants, J. L. Levitt, Wallace Lund and Forrest H. Seter, were convicted. All three appealed but only Seter has filed a brief. Appellants Lund and Levitt were each duly notified by this court, pursuant to California Rules of Court, rule 17 (a) * that unless a brief was filed w...
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Louis L. Moody was convicted by a jury of four violations of section 288 of the Penal Code. (Lewd and lascivious conduct with a child' under the age of 14 years “with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, . . .”) Moody was found to be a sexual psychopath and committed to a state hospital for observation. A motio...
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The front end of defendant’s freight train collided with the right side of plaintiff’s truck and trailer, which were stopped on the railroad track. This occurred on a clear, dry weekday in August, about 4:30 p.m., at the Davis Street crossing, in the City of San Leandro. Plaintiff sued for damages to the truck and defendant cross-complained for damages to the train. Trial by jury resulted in a ver...
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This is an appeal by plaintiff Lewis J. Dwan, as administrator of the estate of Gerald Joseph Loftus, and as guardian ad litem, for Scott and Bard Loftus, from a judgment of dismissal entered upon the sustaining without leave to amend of the defendants Dixons’ general demurrer to his amended complaint for wrongful death and personal injuries. The action is grounded on an automobile accident t...
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Bank of America appea's from an order sustaining certain objections to a guardianship account and directing that “a complete and proper accounting’’ be made. In effect, the order is a determination, on the merits, that the account filed is not complete or proper. This determination was made without the taking of any evidence on the issues raised by the objections. The facts follow. Egidio Tanferan...
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Plaintiffs, husband and wife, failed to pay their real property taxes levied on property at Malibu for a period of several years, longer than the period required for the County of Los Angeles (defendant) and the State of California (state) to acquire title thereto by tax sale and tax deeds. The action here is to quiet title and for declaratory relief, plaintiffs claiming ownership of the property...
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Jose Gabriel Ballejos has appealed from a judgment of the superior court which was entered after a jury found him to be guilty of the crime of selling marijuana. (Health & Saf. Code, § 11531.) Rogiero Ballejos and Jack Wallace Gilbert, who have also appealed, were found to be guilty of the crime of possession of marijuana. (Health & Saf. Code, § 11530.) It appears from the record that Calv...
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Plaintiff, Mary G. Romero, had her hair bleached at Emma’s Beauty Salon, owned and operated by the defendant, Maree And’ra. The complaint alleged that plaintiff’s injuries were caused by the effects of chemicals negligently applied by the defendant’s employee, Jean Fowler. Before trial, the complaint was amended to include a count for breach of warranty. On this appeal from the judgment in favor ...
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Plaintiff appeals from a judgment of $1,000, entered upon a jury verdict in his favor in an action for damages for personal injuries and loss of use of his automobile. The action arose out of an intersection collision between the automobiles of the parties. Liability was admitted by defendant at the commencement of the trial. The main issue on appeal is the adequacy of the award. To put the mat...
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This is an appeal by the husband from an order denying him suit money in his wife’s action for divorce. The appeal is on a settled statement. The respondent-wife filed her complaint for divorce in November 1961, alleging extreme mental cruelty and seeking custody of the four minor children, alimony and child support. Appellant answered and asked that a divorce be denied on grounds oE condonation a...
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216 Cal.App.2d 317 (1963) 30 Cal. Rptr. 654 AMERICAN CONTINENTAL IMPORT AGENCY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; PASADENA INVESTMENT COMPANY, Real Party in Interest. Docket No. 26993. Court of Appeals of California, Second District, Division Three. May 17, 1963. *318 Paul, Hastings, Janofsky & Walker, Lee G. Paul, Frank D. Boren and Hiram W. Kwan for Petiti...
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Defendants Franzo and Mary Borghi, husband and wife, appeal from a declaratory judgment granting plaintiffs Clyde L. and Marie W. Reese, husband and wife, a right-of-way of necessity over a parcel of land previously conveyed to defendants by plaintiffs. Defendants also appeal from an order denying their motion to strike plaintiffs’ cost bill. Although represented by counsel below, plaintiffs ap...
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Plaintiffs Nola Anderson and Stanley Orme brought this action to recover damages for the wrongful death of their father, Fred Orme. The complaint alleged that defendant William Katz, a minor 19 years of age, had driven an automobile so negligently as to cause it to strike and kill plaintiffs’ deceased. It was further alleged that defendants Sam and Tillie Katz, the parents of the minor defendant, ...
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In eight causes of action plaintiff, invoking the welfare exemption of the Constitution, 1 and the Revenue and Taxation Code, 2 sought return of real property taxes paid to defendant county for the tax years 1955-56 to 1961-62, inclusive. Demurrer to its amended complaint was sustained with leave to amend but plaintiff declined to *346 amend, judgment was ente...
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Plaintiffs, who had been given a money judgment against defendant following trial of a declaratory relief action, caused property to be seized by the Sheriff of Los Angeles County under a writ of execution to satisfy that judgment. Pursuant to sections 519, 549 and 689 of the Code of Civil Procedure, defendant’s wife filed claims of ownership by third person with respect to a certain portion of...
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This is an appeal from a judgment denying a writ of mandate. The licenses of appellants to practice chiropractic were ordered suspended by the respondent, the Board of Chiropractic Examiners of the State of California (Board), and appellants sought mandate to require respondent to vacate its order of suspension. The cause was submitted to the superior court on the transcript of the proceedings be...
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Defendant was in court on February 2, 1962, on a criminal charge of commission of a felony. The trial was continued to March 7, 1962, and defendant was instructed to appear at that time. He failed to appear on March 7 and the court ordered his bail forfeited and a bench warrant to issue. The order was entered in the permanent minutes on March 12, 1962. Notice of the forfeiture was sent to petitio...
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This is an appeal by the defendant, Morris Cooley, from a judgment in favor of the plaintiff, Reynold Linder. The action is based on a written contract dated October 12, 1960, between plaintiff and his then partner, one William J. Cairns, producers of charcoal by the kiln method, and the defendant, a producer and wholesaler of charcoal. The agreement, in material part, provided that Linder...
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These are appeals from judgments in two separate actions involving the same parties and identical issues. They are particularly concerned with the cross-complaint filed in each of said actions by appellant, Eugene A. Taliaferro, against his former wife, respondent, Dorothy Davis, also known as Dorothy Taliaferro. This is another of a long list of appeals arising from the 1944 divorce of the par...
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By the instant action, plaintiff Nancy E. Scott, as special administratrix of the estate of Harold Hill Scott, deceased, sought a declaratory judgment and other equitable relief upon the basis of plaintiff’s interpretation of the provisions of a property settlement agreement between said decedent and his former wife, the defendant Florence W. Scott. Said agreement was dated and purportedly was eff...
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General Casualty Company of America appeals from a judgment rendered against it following a non-jury trial. Judgment was entered against the Colonial Escrow Corporation and Jack D. Bowman also, but no appeal has been taken by these defendants. As grounds for reversal, appellant urges that the evidence is insufficient to support the judgment and that the court abused its discretion in denying appel...
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Maude Weatherby Whetmath executed a holographic will July 16, 1959; she passed away October 26, 1959. The will was admitted to probate, Paragraph 3 of the will reads: “Thirdly, I hereby will, give and bequeath to my uncle, Harry W. Ward, of 2122 First Street, Wyandotte, Michigan, all of my personal property, if he is living at the time of my death, but if he should not be living at the time of my ...
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Plaintiff, Ralph C. Sutro Company, brought suit in interpleader. The interpleaded fund of $10,910.39 represents the balance of moneys held by plaintiff pursuant to a construction loan agreement between plaintiff and Hindry Properties, Inc. Western Investment and Title Company (Witco), claims the interpleaded fund under contractual rights and is opposed by the remainder of the defendants, respon...
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The petitioner seeks a writ of prohibition to restrain the superior court from proceeding in accordance with an order whereby the action of Joseph W. Fairfield v. Jesse A. Hamilton et al., “and each, every and all proceedings pending between any of the parties" was transferred by the presiding judge to the Honorable Alfred Gitelson “for all further proceedings under rule 4...
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By indictment James Thiele, a Long Beach police officer, was accused in count I of having accepted a bribe of $3,000 in 1957. In counts III, VI, VII, VIII and IX, both Thiele and Harry Finch, who was also a police officer of Long Beach, were accused of soliciting one Henry, also a police officer, to accept and join in the acceptance of a bribe and join in the commission of extortion; in counts IV...
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Defendants Bandy and Holman were charged jointly with uttering two checks in violation of Penal Code, section 476a. In other counts of the same information defendants Bandy and Callahan were charged jointly with uttering two other checks in violation of the same statute. The information charged defendant Bandy with two prior convictions for violations of the same statute, and defendant Callahan...
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The applicant, a newsboy, filed a claim for workman’s compensation against the Herald and Mirror publishers, their insurance carriers, and the individual distributors of each paper. Applicant was injured on April 28, 1961, when he fell off his bicycle while in the process of delivering both the Herald and Mirror newspapers along one route. At that time applicant was 14 years old. On Februa...
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Pursuant to a “stipulation” executed by counsel for plaintiff, the default hearing on the complaint of real party in interest for a divorce was held by Commissioner John Leslie Goddard, purportedly sitting as a judge pro tempore of respondent court. The only issue before the court is the validity of Commissioner Goddard's designation as such judge pro tempore. If he was validly designated, the de...
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Mandate to compel the Chairman of the Sacramento County Board of Supervisors to sign a contract with the Redevelopment Agency of the City of Sacramento and the city itself, as directed by a resolution of the board of supervisors. The proceeding entails interpretation of certain language in article XIII, section 19, of the state Constitution. The *482 constitutional provision w...
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Defendant appeals from the judgment entered upon a jury verdict finding him guilty of rape and from the order denying his motion for new trial. Upon defendant’s request, counsel was appointed to represent him on this appeal. This attorney has advised the court that after reviewing the record, he is of the opinion there are no meritorious grounds of appeal. Subsequently, defendant filed a brief,...
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Appellant was convicted of robbery in the first degree for his part in a liquor store holdup, actually perpetrated by another. This appeal is based on alleged misconduct of the district attorney in alluding to appellant’s six prior felonies in cross-examination and argument, and in further assailing the credibility of appellant in argument. Appellant contends that the district attorney was guilty ...
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J. C. Wattenbarger & Sons is a corporation engaged in the sale of building materials and supplies. It sued the defendants, Lester W. Sanders, Anna L. Sanders, Charles W. Hauser, Sherlene Hauser and the respondent herein, Roy L. Sanders, individually and doing business as C & L Construction Co., Ltd., a copartnership. All of the defendants except respondent Roy L. Sanders defaulted, and a judgme...
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These consolidated actions seek damages for fraud in the sale of stock of Uni-Insurance Service Corporation. Trial opened before a jury, but on the sixth day jury was waived and the cases continued to judgment before the court alone. Defendant Pickrell was president of the corporation, defendant Emerson E. Wiser was vice-president and general manager, and both were directors, as were defendants...
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Plaintiff wife appeals from the interlocutory judgment of divorce entered herein. Her attack upon the judgment is based upon her assertion that the record fails to disclose that she understood or consented to the stipulations which (1) declared that the residence property owned by the parties was joint tenancy and not community property; and (2) required her to make the payments on this residence...
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The appeal is from an order of thé Superior Court denying a motion to vacate the judgment entered in 1926, sentencing Fitzgerald to life imprisonment following a plea of guilty to murder. The People moved to dismiss the appeal upon the ground that it is frivolous; counsel was appointed to represent the defendant in opposition to the motion; the motion was calendared, was duly heard and submitted. ...
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This is an appeal by plaintiff from a summary judgment in favor of defendants. Plaintiff’s complaint alleged that defendants, two police officers in the employ of the City of Los Angeles, entered and searched plaintiff’s apartment without a search warrant or other legal authority, arrested plaintiff, seized certain goods belonging to him and accused him of having stolen them. In the course...
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Petitioner is the assignee for collection of a firm of attorneys. These attorneys (hereinafter collectively referred to as “Beilensons”) were retained by the real party in interest to represent her in a divorce action. During the pendency of that action, respondent court made and entered its order directing the husband to pay directly to them the sum of $7,500 on account of attorney fees and $4...
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In the second amendment to the complaint, plaintiff-appellant Clarence L. Holmes alleged that defendants Maceo Corporation, a corporation (hereinafter referred to as Maceo), National Award Homes of California, a corporation (hereinafter referred to as National), and Bank of America National Trust and Savings Association, a national trust and savings association (hereinafter referred to as Bank) w...
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This is a second petition for review in this same case. This court’s review of the first petition (Messner v. Industrial Acc. Com., 4 Civil No. 7119, filed July 6, 1962) was concerned entirely with the issue of whether or not a noise-induced hearing loss was an “occupational disease” (Lab. Code, § 5412), or whether it was caused by a continuing trauma (Lab. Code, § 5411), and which statute of...
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Defendant-respondent was charged in the Municipal Court of Oceanside Judicial District with the crime of violating section 2191 of the Oceanside Ordinance Code, in that on January 9, 1962, defendant was then and there a person who did willfully and unlawfully solicit, and peddle on private property, to wit: 428D Garfield Street in the City of Oceanside, not having been requested to do so by the...
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This is an appeal by defendants Mark S. Fields and Growers Insurance Agency from a judgment in favor of plaintiff Xum Speegle, Inc., in an action for unfair competition and breach of fiduciary duty. In this suit, defendant Fields was charged with wrongfully breaching his fiduciary duty as a director and officer of plaintiff corporation by establishing defendant Growers Insurance Agency, a ...
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Appellant Emma P. Weaver, beneficiary under a deed of trust, brought this action for declaratory judgment, for deficiency judgment, and for damages for waste allegedly impairing the security. The action is against the trustors, George and Myrtle Bay, against Goldie Selfridge, who expressly became an obligor on the note, and against strangers to the title, Calvin, Maureen, Elzy and Marie Jordan....
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The appellant is an income beneficiary of a trust established by the will of Edward B. Gross, and appeals from an order denying her petition to require the trustees to sell certain trust property claimed by appellant to be unproductive of income. By his will, Edward B. Gross devised the residue of his estate to trustees who are respondents here. After providing for the payment of $200 per month to...
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This is an action for personal injuries received when plaintiff’s car, standing at an intersection in obedience to a traffic light, was struck in the rear by defendant’s car driven by defendant’s agent. Plaintiff claims to have suffered a whiplash injury in the accident, which occurred on December 9, 1959, and that the whiplash had developed at the time of trial (April 26, 1962) into a herniate...
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Upon arraignment defendant, represented by court appointed counsel, entered a plea of guilty to the information charging him with a violation of Health and Safety Code section 11530 (possession of marijuana). *577His application for probation was denied. Judgment was rendered; his sentence to run consecutively with an ineompleted sentence imposed July 8, 1959, for the violation of Health and Safet...
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Bricklayers and Masons Union No. 1 of California and Bricklayers, Masons and Plasterers International Union of America and their officers and members seek a writ of prohibition to prevent further proceedings in a damage suit against them now pending in the Superior Court of Kings County; the application is based on the contention that that court lacks jurisdiction because the acts complained of...
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In an action for support by a parent against an adult child, under sections 206 and 243 of the Civil Code, which resulted in a judgment in favor of the parent, may the trial court make an order for support and expenses pending the appeal from such judgment? This is the basic issue presented in this proceeding by the adult child seeking a writ of prohibition commanding respondent court to desist...
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Plaintiff-appellant, Donald L. Currier, brought this action against defendants-respondents, County of San Diego, A. E. Gallagher individually and as Coroner, James T. Weston individually and as Chief Pathologist of the Coroner’s Office, Benjamin T. Williams individually and as Autopsy Surgeon of the Coroner’s Office of San Diego County. Three causes of action are alleged. The first alleges general...
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Plaintiffs appeal from a judgment entered after an order for summary judgment was granted by the trial court against each of the plaintiffs-appellants herein and in favor of the defendant-respondent El Encino Company, a corporation doing business as The Four Winds Restaurant. Basically, the respondent’s motion was in the na *600 .ture of a demurrer, but because there were allegatio...
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The defendants obtained money under the Aid to Needy Children program through false representations ; on account thereof were charged and convicted of grand theft and conspirary to commit grand theft, i.e., violations of sections 484, 487.1 and 182 of the Penal Code; were granted probation; and appeal from the order granting such probation and from the judgment. While the defendants althou...
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One Eldridge Rhodes and defendant-appellant Thomas S. Earl were charged with sex perversion, under Penal Code, section 288a. The jury trial was waived and both defendants were found guilty. The matter was referred to another department for sexual psychopathy proceedings. A motion for new trial was denied. Appellant was certified for examination as a sexual psychopath. A hearing was had and he was...
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On November 27, 1951, E. S. Heward filed a complaint for money against Fred Cromwell and three other defendants. On July 8, 1954, default judgment was entered in Howard’s favor against all four defendants in the amount of $9,024.32. On July 1, 1955, Heward demanded that defendant Cromwell pay him the amount of the default judgment. Cromwell, who had previously been unaware of the judgment again...
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Defendant, a licensed physician, was indicted and convicted on 22 counts, each charging a narcotic offense. He was sentenced on counts 1, 4, 5, 8, 9, 12, 13, 16, 17, 18, 20 and 22, the sentences to run concurrently. The other 10 counts were dismissed by the court on its own motion, in compliance with the preclusion of double punishment for the same act. (Pen. Code, § 654.) Defendant has ap...
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In this action to quiet title and for an accounting, the court rendered judgment for defendant solely upon the ground that the true party plaintiff, Charles N. Douglas, an attorney at law, had bought the chose in action which is the basis of the lawsuit, with intent to bring suit thereon, and that under the provisions of section 6129 of the Business and Professions Code, plaintiff is barred from ...
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Plaintiff brought this action to recover damages for alleged dental malpractice. She claims that in the course of defendant's dental work, he severed the nerve serving the left portion of her lower lip, causing numbness thereof. The court directed a verdict for defendant. Plaintiff has appealed from the ensuing judgment. Viewing the evidence in the light most favorable to the plaintiff since ...
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The defendant Salem Development Co., Inc., has appealed from that portion of a judgment in an eminent domain proceeding which fails to allow interest on an award, and from an order of the court refusing to charge the jury with defendant’s proposed instruction respecting interest. The latter point is of no concern for the reason that if defendant is entitled to interest it is not a factual situati...
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This is an action for injunctive and declaratory relief by which the plaintiff, appellant herein, seeks to set aside the selection of a junior college site, made by the *658 board of trustees of a junior college district, which is one of the defendants and respondents herein, and to require that board to select his property for such a site. The trial court sustained a general demur...
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This is an appeal from a judgment for the defendants in an action which grew out of the assignment by defendants to the plaintiffs, Pasadena Petroleum Corporation and W. C. Handel, of a landowners’ overriding oil and gas royalty. The other plaintiffs were in turn assignees of a portion of this overriding royalty. The plaintiffs sued on the theory that the defendants had wronged them by the reco...
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Frank Carmichael has appealed from an interlocutory decree of divorce granted his wife, Doris Carmichael, for extreme cruelty. No attack is made on the sufficiency of the evidence to sustain the finding of extreme cruelty so it is unnecessary to set forth the evidence relating to that issue. The first major contention of appellant is that the trial court failed to give full faith and credit t...
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Petitioner seeks a writ of mandate to compel respondent State Treasurer to prepare and sell $20,-000,000 in bonds as directed by a resolution of the State School Building Finance Committee acting pursuant to the State School Building Aid Bond Law of 1952 (now Ed. Code, §§ 19701-19715). At its Second Extraordinary Session of 1952, the Legislature considered and acted upon a group of related...
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The defendant, appellant herein, by an indictment in three counts, respectively, was charged with a wilful failure to file a state income tax return for each of the years 1960, 1959, and 1958, with intent to evade the tax imposed, i.e., violations of section 19406 of the Revenue and Taxation Code; was found guilty on Count 1 as charged, and of a lesser included offense on Counts 2 and 3, i.e., a ...
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This is an action for personal injuries sustained by plaintiff logging driver when a log rolled off a truck during a loading operation. The jury verdict was in favor of plaintiff and against defendants, Hampton Plywood Company, 1 a corporation, the owner of timber rights on the tract of land on which the accident took place, Kenneth B. McGuire, 2 a logger engaged in the re...
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This is an action for damages for personal injuries resulting from an attack by a dog which was owned by a guard-patrolman, who was employed by defendant Dawn Patrol. In a jury trial, the verdict was for plaintiff for $15,000, and for the intervener (compensation insurance carrier for plaintiff's employer) for $7,986.27. Defendant’s motions for judgment notwithstanding the verdict and for a new...
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The plaintiffs brought suit for specific performance of an agreement for the sale of real property. After a trial, judgment was entered in their favor on September 16, 1960. Thereafter, on September 30, 1960, the defendant filed a notice of a motion to set aside the judgment “on the ground that there was a lack of jurisdiction in the Court to make and enter said judgment.” That motion was heard...
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Defendant was indicted in Count I with violation of section 187, Penal Code, murder, and in Count II with violation of section 211, Penal Code, robbery. Defendant pleaded not guilty. Defendant personally and all counsel waived trial by jury and the matter was tried by the court. The court found defendant guilty on Count I, of murder in the first degree and fixed the penalty at life imprisonment. ...
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After a nonjury trial defendant was convicted of transportation of heroin in violation of section 11501, Health and Safety Code. He admitted three prior *755 narcotics convictions. He now appeals from the judgment. His attempted appeal from an order denying a motion for new trial is dismissed. (Pen. Code, § 1237.) Basic issue on appeal is defendant’s contention that incriminating evidence was i...
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This is a proceeding in mandamus to compel the Board of Education of the City of San Diego to increase the amount of salary payable to a group of teachers *760 included within a previously designated salary classification • was instituted on behalf of the teachers in question; and resulted in a judgment in favor of the board, from which the petitioners have taken the appeal at hand. For sal...
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Plaintiffs, Colonel L. Bowen and his wife, sued defendant, Daniel J. Cowett, an attorney, for malpractice and breach of contract by reason of his failure to carry out his employment of August 18, 1959, to move to set aside a judgment entered against the plaintiffs on March 13, 1959, in another action. The plaintiffs have appealed from a judgment of dismissal following a summary judgment favoring ...
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Cross-complainant appeals from a judgment denying it recovery from cross-defendant upon warranties express and implied. The case originated by a complaint filed by Oberti brothers, operators of an olive processing and packing plant, to recover damages caused by contamination of olives from the use of a steam hose which gave them a phenolic taste. Plaintiffs joined both appellant, the distributo...
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This venue question arises in a personal injury action. The complaint alleges that plaintiff was a *779 passenger in a bus of defendant Western Greyhound Lines, real party in interest, when, near Tucson, Arizona, it lurched, throwing her from her seat to the floor. Commenced in Los Angeles County, the action was transferred to San Francisco on defendant’s motion (Code Civ. Proc., § 397, subd. 1...
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An ex-serviceman, Bernard Kopf, died from injuries suffered in an automobile accident. He held two policies of insurance for the benefits of which his widow, plaintiff-respondent (hereinafter Shirley) and his parents, defendants-appellants (hereinafter collectively “parents”) advanced conflicting claims. The question on this appeal is whether an agreement compromising these claims is bindi...
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On December 30, 1961, at about 1:45 a.m., a man wearing sunglasses entered the Wishing Well Bar in Castro Valley, seated himself at the bar, ordered a beer, and when the bartender brought it, announced that he had a gun, which the bartender and a waitress saw in his lap, and demanded “all your money.” The bartender grabbed the gun and punched the man, who fled. The bartender and waitress identi...
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Mrs. Sadie Jean Blackman has appealed from (1) an order denying her motion to vacate a final decree of divorce granted her, and (2) a subsequent order denying her motion for reconsideration of her previous motion. Appellant’s original motion to vacate was based upon the ground that the final decree of divorce previously granted her was procured by extrinsic fraud, assertedly practiced on her an...
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Between plaintiff’s front yard and Lake Ellis in the City of Marysville is a gravel driveway approxi*799mately 10 feet wide, running in a north-south direction. Plaintiff, Mrs. Hughes, regards the driveway as her private property. The city regards it as a public street, being a prolongation of D Street north of 14th Street. In front of another residence separated by a single lot from plaintiff’s p...
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The question on this appeal is whether a certain contract of guaranty covered indebtedness incurred after the date the contract bears (September 1, 1959) or only after the date it was actually signed (April 1, 1960). We hold that the earlier date applies. In August or September 1959, Jim Dowd, vice-president and one of the owners of the two plaintiff corporations (hereinafter collectively ...
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Raymond Carreras was convicted by a jury of the crime of burglary in the second degree. He has appealed from the judgment entered and from the order of the court denying his motion for a new trial. The latter is now a nonappealable order and the purported appeal therefrom must be dismissed. It appears from the record that the appellant, Raymond Carreras, was a casual acquaintance of Raymond Dal...
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Plaintiff has appealed from a judgment of the superior court denying a writ of prohibition sought to restrain respondent municipal court from trying him on three complaints involving parking tickets. After the superior court denied the writ, a trial was held in the municipal court at which time the complaint on one ticket was dismissed, on another plaintiff herein was found not guilty, and on the...
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This is an appeal from an order in a stockholders’ derivative action staying proceedings as to the first and second causes of action until 10 days after determination of a motion pursuant to Corporations Code section 834, subdivision (e), to require plaintiffs to furnish security as to the third cause of action. The issues presented by this appeal should never arise again since they represent...
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In 1959, the court found Rojas and Hidalgo guilty of receiving stolen property (Pen. Code, § 496). Hidalgo, who operated an electrical contracting business, purchased certain electrical equipment knowing it to be stolen; Rojas was arrested unloading it from the truck. The original probation reports reveal that Rojas “was somewhat a victim of circumstances,” but that Hidalgo, who was under suspici...
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The City of Redondo Beach filed an action in eminent domain involving property owned by defendant Guarino, appellant herein; while other answering defendants were represented by counsel, Guarino appeared in propria persona. On November 28, 1961, counsel for defendant Kumnick, the city attorney, and defendant Guarino demanded *833 a trial by jury (joint pretrial statement, p. 2[1] ...
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In the first count of an information the defendant Cantu and Noel Mathew Burns and Ronald Joseph Biffath were accused of the crime of conspiracy to violate section 288a of the Penal Code; it was alleged that the offense occurred on or about August 19, 1961. In the second count Cantu alone was accused of having violated section 288a of the Penal Code on or about August 11, 1961. It was further all...
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We granted a rehearing in this case because at the time of preparing our original opinion we were under a misapprehension concerning an important circumstance. The circumstance involved the actual date and the conditions under which a negotiable draft bearing date of November 30, 1960, was issued to Himovitz, the third party claimant. Both parties to this appeal agree as to the actual event. No...
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The instant action of interpleader was originally filed in the municipal court and, upon the filing of two cross-complaints seeking relief beyond the jurisdiction of said court, was transferred to the court below. We are concerned here only with the “cross-complaint to determine adverse claims” filed against the cross-defendant Davis, respondent herein, and others, 1 which set forth two separat...
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A jury found defendant guilty of sale of heroin (Health & Saf. Code, § 11501). He ivas sentenced to prison, and appeals from the judgment. Error is asserted only in claimed misconduct of the prosecutor. We find no merit in these claims. In his opening argument, the deputy district attorney twice said “we rely upon the testimony” of the officer who, as an undercover agent, purchased th...
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Appellant Wright and defendants Jackson and Malone were accused by information with kidnaping for the purpose of robbery (Pen. Code, § 209), robbery of one Bayliss (Pen. Code, § 211) and robbery of one Brody. A jury convicted Wright and Jackson of each offense charged; Malone was acquitted. As to Wright, the jury also found the robbery to be of the first degree and that he was armed as alleged in...
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Mary L. McCarthy appeals from orders of the trial court (1) refusing to hear her application for an increase in the alimony payments theretofore awarded her; and (2) denying her application for an allowance of costs and attorney’s fees on her appeal from the first mentioned order on the ground that said appeal is frivolous. The facts are not in dispute. Appellant was awarded alimony by the term...
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The appellant was arrested without a warrant between 1:15 and 1:30 a.m. (rep.tr. p. 46:20-22) for violation of Vehicle Code section 23102, driving under the influence of alcoholic liquor, a misdemeanor. At 2:35 a.m. she had been partially booked at Lincoln Heights jail but refused to be fingerprinted or photographed until she could talk to her attorney. He arrived at 2:45 a.m. but the police refus...
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Appellant Rufus Baker appeals from the judgment entered against him in an action in unlawful detainer. On August 21, 1961, plaintiff and respondent Martin T. Byrne filed his complaint in unlawful detainer against appellant Baker and two codefendants, Harold T. Corbett and his wife, Carol Corbett. According to the allegations of his complaint, respondent became the owner of certain real property, ...
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In an information filed by the district attorney appellant, Guadalupe J ose Herrera, was charged with possession of heroin in violation of section 11500 of the Health and Safety Code, and two prior felony convictions, one for breaking and entering in New Mexico and a prior narcotics conviction. He was found guilty by the court sitting without a jury. The narcotics prior was found to be true, the ...
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Claiming to be unlawfully restrained by the Chief of Police of the City of Los Angeles under a charge of violating section 52.51 of the Los Angeles Municipal Code, petitioner Martin seeks a release upon habeas corpus. The contention is that said section is void because the field has been preempted by state legislation. Sections 52.51 and 52.52 of said Municipal Code read as follows: Section 5...
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Plaintiff and defendant are corporations. Defendant, an advertising agency, placed plaintiff’s advertising in national magazines upon a commission basis. The relationship existed for a number of years until it was terminated by plaintiff in July 1961. It was customary for defendant to render monthly statements for plaintiff’s approval. After the employment of defendant was terminated plaintiff ...
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In a non jury trial the defendant was found guilty of violating subdivisions 1 and 3 of section 337a of the Penal Code. His motion for a new trial was denied. Probation was denied. On each count the punishment imposed was imprisonment in the county jail for a term of three months, the sentences to be served concurrently. The appeal is from the judgment. 1 The evidence which relates to the sol...
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Mildred Townsend died in 1961 and her will was admitted to probate. She bequeathed monies and personal property to several friends and relatives, disinheriting some relatives by noninclusion and by general reference. She provided for a trust for Don Q. Wade, son of her niece Violet Wade, with a contingent remainder to Violet should the son predecease his mother. In paragraph 14 of the will...
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221 Cal.App.2d 29 (1963) ANCHOR CASUALTY COMPANY, Plaintiff and Respondent, v. GORDON D. STRUBE, Defendant and Appellant. Civ. No. 27104. California Court of Appeals. Second Dist., Div. Four. Oct. 8, 1963. N.E. Youngblood for Defendant and Appellant. Anderson, McPharlin & Conners, Robert E. Jones and Kenneth E. Lewis for Plaintiff and Respondent. KINGSLEY, J. This is an appeal by defendant...
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Bartholomew Joseph Corbett died leaving surviving two daughters, Margaret Kordell and Theresa McCarren. He had executed a purported will and codicil on February 23, 1961, which Theresa offered for probate. Margaret objected to their admission, alleging undue influence on the part of Theresa and that the decedent at the time of the execution of the instruments was not of sound and disposing mind. T...
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Defendant appeals from a judgment of conviction of two counts of second degree burglary, He predicates his appeal upon the inadmissibility of an allegedly coerced confession, and asserts the duty of this court to determine independently the voluntary nature of such confession. Certain commercial establishments were burglarized and spark plugs, radios, money, mirrors and other personal property ...
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David Wayne Mistretta and Jerry Albert Mitzlaff were each indicted for kidnaping for the purpose of robbery (Pen. Code, § 209), robbery (Pen. Code, § 211), forcible rape (Pen. Code, § 261), and aiding and abetting in forcible rape. They each entered a plea of guilty to simple kidnaping (Pen. Code, § 207), forcible rape, and robbery in the second degree. The trial judge ordered the sentences on th...
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Defendant Dolores C. Carlson appeals from an order dismissing for want of jurisdiction her motion to modify the interlocutory decree of divorce which had been granted to her and entered nunc pro tunc as of March 10,1960. The motion was noticed for hearing on September 7, 1960, but its presentation was deferred until March 16, 1962, pending disposition of a mandate proceeding wherein she sough...
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Defendants Arthur Ransom, Jr., Rosetta Ransom (T/N Rosetta Davis) 1 and Calvin Hutchinson were charged with robbery, and that at the time of the commission of the offense they were armed with a .38-caliber revolver. Arthur Ransom and Hutchinson were each charged with a prior felony. Ransom admitted the prior. The jury found all three guilty of robbery and fixed the offense at first degree as to...
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This is an appeal by the plaintiff from a judgment based upon a jury’s verdict denying damages for personal injuries. Appellant sustained injuries while riding in a ear driven by Owen Nelson, who was killed in the accident. Appellant named as defendants the estate of the deceased driver, and the driver’s parents. In his complaint appellant alleged he *64 was a guest in the car...
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Petitioners Laura Ott 1 and Doris Peters appeal from the judgment entered against them following a proceeding to determine heirship under sections 1080 et seq. of the Probate Code. It was therein determined that appellants were not the granddaughters and pretermitted heirs of Belle Shepard, deceased. At the trial the evidence introduced by appellants was largely documentary, alt...
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Plaintiff appeals from the judgment entered upon a “nine to three” jury verdict in defendant’s favor. The only assignment of error is that the trial court erred in denying plaintiff’s motion for a new trial when it became known, following the receipt of the jury’s verdict, that one of the jurors had taken a copy of the Vehicle Code into the jury room and had read to the other members of the jury ...
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This is a petition for a writ of mandate to compel the lower court to hear petitioner’s motion for child *96 support and attorney’s fees during the pendency of an action brought by petitioner against her former husband, Paul Winchell, real party in interest. On March 8, 1963, the original complaint in the action was filed. It contained two counts based on an alleged written property settlemen...
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Defendant herein appeals from the judgment of conviction entered after a jury trial in which he was found guilty of selling marijuana in violation of section 11531 of the Health and Safety Code and of possessing marijuana in violation of section 11530 of said code. Appellant admitted a prior conviction of possession of marijuana. In conformity with the holding in Douglas v. California, 372 ...
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Plaintiff insurance company issued its policy of automobile liability insurance to one Gordon and such policy was in force on April 2, 1960, when the accident which underlies this litigation occurred. By its terms, the policy excluded coverage of 1 ‘ any automobile while used as a public or livery conveyance.” Gordon, an employee of defendant Normandie Club, regularly carried persons...
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By an indictment of Los Angeles County grand jury, defendant was charged with selling .narcotics, heroin, in violation of section 11501 of the Health and Safety Code. The indictment was subsequently amended to charge two prior felony convictions, (1) possession of narcotics, a felony, and (2) violation of the Dangerous Weapons Control Law, also a felony. Defendant pleaded not guilty. Trial was ...
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Plaintiff appeals from a summary judgment in favor of defendant Robert H. Delafield. The judgment was granted on the ground that plaintiff, though obliged by statute to file claim under both section 801 and section 803 of the Government Code, had not complied with either of said sections. 1 There is no dispute, for the present purpose, about the facts, which are set forth in the pl...
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221 Cal.App.2d 119 (1963) JAMES KEVIN McMAHON et al., Plaintiffs and Appellants, v. EARL L. MADDOX et al., Defendants and Respondents. Civ. No. 26781. California Court of Appeals. Second Dist., Div. Two. Oct. 11, 1963. Higgs, Fletcher & Mack and Marshall L. Foreman, Jr., for Plaintiffs and Appellants. Callaway, Kirtland & Packard and Judith O. Hollinger for Defendants and Respondents. *121 ...
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This court issued its alternative writ of prohibition upon petitioner’s allegations to the effect that respondent court was acting in excess of its jurisdiction in refusing to grant petitioner’s motions (1) to dismiss the pending divorce action following the death of his wife, the plaintiff therein; (2) to terminate the receivership existing in the action, and (3) to prohibit the substitution of ...
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Following trial by jury, Edward Maldonado was found guilty of count II of the information, issuing a check without sufficient funds, and count III, forgery of endorsement, in violation of Penal Code, sections 476a and 470, respectively. Defendant admitted the allegation of the information that he had suffered a prior conviction of grand theft and did not take the stand. He was found not guilty of...
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The appeal is from a judgment in favor of defendant owners of hotel property and against a mechanics’ lien claimant-plaintiff after a court trial. The question is the sufficiency of either or both of two posted and filed-for-reeord notices of nonresponsibility to block the claim of lien. Plaintiff contractor admittedly performed and supplied unpaid-for work and materials on a hotel remodeling j...
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Argonaut Insurance Company and M. J. Hermreek, Inc., were granted a writ of review directed toward the consideration of an award of $17,500 as a death benefit made by the Industrial Accident Commission to Lola Lee Cuddy, widow of decedent, James J. Cuddy. In the process, the original decision of the trial referee denying relief was set aside by the commission, and the present conclusion reached b...
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This case turns on construction of a policy of automobile liability insurance issued by defendant Norwich. The question is whether the policy requires Norwich to defend an action brought by its named insured against one asserted to be an additional insured by reason of his permitted use of the insured automobile. Defendant’s policy was issued to Marcelin Chlemens. By it, Norwich agreed to ...
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The County of Los Angeles and Bethlehem Star Parade Association, a corporation, hereinafter referred to, respectively, as the “County” and the “Association,” appeal from the judgment of dismissal which was entered after they had failed to amend their petition seeking a writ of mandate within the time allowed by the order sustaining respondent’s general demurrer. By their petition, appellants sough...
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Petitioner herein seeks a writ of mandate or prohibition to restrain respondent court from ordering the taking of petitioner's deposition for discovery purposes during the time an arbitration is pending between the parties. He also seeks to set aside an order of respondent court denying and striking his motion for the appointment of a receiver and for the issuance of a preliminary injunction. ...
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Petitioners seek by writ of mandate to annul an order granting a new trial, and by prohibition to restrain respondent court from proceeding with a retrial of an action entitled “John B. Theriot, Alma Theriot and Mont Boyal Memorial Hospital, a corporation, Plaintiffs, v. Amacorp Industrial Leasing Co., Inc., a California corporation, and George M. Anderson, Defendants,” Nu...
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After trial by jury, defendant was found guilty of rape as to one victim and not guilty of *188 assault with intent to commit rape as to another person. Thereafter, the court granted defendant a new trial on the rape charge. At the second trial before a jury defendant was again convicted. A motion for new trial was denied and probation granted conditioned on imprisonment for the first six month...
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Margaret F. Jilison filed an application with the Supervisors of the County of Sacramento sitting as a board of equalization for the reduction of the assessment on her property. The matter was heard and at the conclusion of the hearing the application for the reduction of the assessment was denied. Mrs. Jillson then sought a petition for a writ of mandate or a writ of review (certiorari) in the...
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Plaintiffs have appealed from a judgment entered after the court sustained general demurrers and special demurrers without leave to amend for uncertainty of defendants and respondents Home Federal Savings and Loan Association (hereinafter called Home Federal) and Land Title Insurance Company (hereinafter called Land Title) to plaintiffs’ second amended complaint. Home Federal is charged in...
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This is a dispute between adjoining landowners. For convenience J. K. Stickney, Jr., plaintiff, cross-defendant and appellant will be called plaintiff. His wife, Elizabeth Lee Stickney, cross-defendant, has not appealed. Defendants, cross-complainants and respondents, Joseph Nemir and Marjorie Nemir, will be referred to as defendants. The case involves a triangular piece of property at the northw...
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This is an appeal from a judgment in favor of the plaintiff, Verna Holt, in an action on the common counts. The grounds of appeal are that the findings are not supported by the evidence and that the complaint does not state a cause of action. Neither of these grounds of appeal is sustainable. The complaint alleged that on or about November 15, 1958, plaintiff transferred possession of a 1952 Ca...
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This is an appeal from an order dated August 3, 1962, revoking probation. Appellant contends that the order is void and that he must be released from custody because: 1) he has fully served his sentence and had not been granted probation; 2) the court had no power to grant him probation under section 11715.6 of the Health and Safety Code; and 3) he was denied his right to refuse probation. We hav...
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Defendant was convicted by the court, sitting without a jury, of a violation of section 12021 of the Penal Code (possession of revolver by ex-convict) and of a violation of section 11500 of the Health and Safety Code (possession of heroin). He admitted prior felony convictions of robbery and of possession of narcotics, as charged. Appellant raises only one point on appeal, the sufficiency of th...
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In the first cause of action (referred to therein as one for declaratory relief), plaintiff sought to recover commission as a real estate broker. In each of the three other causes of action, it was alleged that defendant became indebted to plaintiff in a specified amount of money (different amount in each cause of action) for services rendered as a real estate broker at the special instance and r...
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This is an action for damages for personal injuries caused when a chauffeur-driven automobile in which plaintiff was riding ran into the rear end of a stopped bus. The defendant (chauffeur) objected to the introduction of evidence on the ground that the amended complaint as further amended did not state facts sufficient to constitute a cause of action. It was amended by various interlineations,...
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Defendant was accused in count 1 of grand theft in that on October 15, 1961, he feloniously took an *242 automobile, then the property of Martin Leasing, Inc. In count 2 he was accused of violating section 10851 of the Vehicle Code in that on October 15, 1961, he feloniously drove an automobile, the property of Martin Leasing, Inc., without the consent of and with the intent to deprive the owne...
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This is an action to recover under the double indemnity provisions of a life insurance policy issued by the defendant insurance company, respondent herein, insuring a man named Wilson, since deceased, and designating the latter’s wife as beneficiary, who assigned her claim thereunder to the plaintiff appellant herein, Pertinent provisions of the policy declare: “If the death of the insured ......
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Plaintiff, City of Gilroy, appeals from a judgment in defendant’s favor in the sum of $1,155, entered after a nonjury trial, in an action in eminent domain brought to condemn an easement and right-of-way for the construction, maintenance, repair and replacement of an underground sanitary sewer. Defendant’s entire property is a 27-acre prune orchard operated by the defendant Angelina Filice...
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Defendant Harry Avington was convicted after trial by jury of violation of Penal Code, section 270. Defendant appeals from the judgment of conviction and from the order denying his motion for new trial. The latter order is no longer appealable. (Pen. Code, § 1237.) The record shows that Clara Avington, the wife, was the sole witness for the prosecution; that five children were born of the marri...
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This is an action by a trustee in bankruptcy to recover the value of property transferred by the bankrupt while insolvent, without consideration 1 and with *281 actual intent to defraud creditors. 2 After a trial without a jury the court gave judgment for plaintiff and against the transferee for the value of the property, less certain encumbrances, plus interest from the date of the transfe...
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Robert Volk was found guilty by a jury of the crime of robbery in the first degree. His motion for a new trial was denied and he has appealed from the judgment and from the order denying his motion for a new trial. The order being nonappealable the purported appeal therefrom is hereby dismissed. Appellant does not attack the sufficiency of the evidence to support the judgment so it is unne...
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Three brothers, Howard, Phillip and Thomas Crittenden were each left an undivided one-third interest as heirs of certain commercial property under a decree of distribution of their mother’s estate. Being unable to agree among themselves, Howard and Phillip brought a complaint in partition for sale of the premises. The defendant, Thomas, did not answer or make an appearance within the required tim...
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In a declaratory action to determine rights under a stock purchase agreement, defendants appeal from a judgment declaring the agreement binding. Defendants also move this court to take certain evidence and to make certain findings of fact and conclusions of law. QUESTIONS PRESENTED. A. Main Appeal. 1. Is the character of the stock divisions involved, and what is the effect of...
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This petition for writ of mandate to compel respondent to omit a proposed initiative ordinance from the ballot to be used at the special election to be held November 5, 1963, arose out of the following sequence of events: In 1874 Fresno County, by grant deed, acquired a 14-acre parcel of land in what is now the center of the City of Fresno. Although the deed contained the provision “to be used fo...
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Appellant was a holder of preferred shares of West End Chemical Company when that company was merged with defendant Stauffer Chemical Company by vote *330 of the shareholders on September 25, 1956, and appellant dissented from the merger. On January 28, 1957, appellant brought an action against West End Chemical Company to have the fair market value of his shares determined. The court set the v...
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Plaintiff appeals from judgment for defendant in this action for cancellation of instruments. In April 1958, plaintiff sought loans from defendant Swartfager and Frank Stevenson. He deeded to Swartfager property owned by plaintiff in Kansas, and thereafter received some $1,300 in loans. In July, an agreement was executed by which: Swartfager acknowledged that the deed to him was given as security ...
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221 Cal.App.2d 336 (1963) THE SARAH DIX HAMLIN SCHOOL, Plaintiff and Respondent, v. THE CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant. Civ. No. 21085. California Court of Appeals. First Dist., Div. Three. Oct. 18, 1963. Thomas M. O'Connor, City Attorney, Agnes O'Brien Smith and Orville I. Wright, Deputy City Attorneys, for Defendant and Appellant. Brobeck, Phleger & Harrison and ...
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Petitioner, being then imprisoned in the Federal Prison at McNeil Island, Washington, petitioned this court for a writ of mandamus to compel respondent District Attorney of Los Angeles County to cause petitioner to be brought to trial, or, in the alternative, to dismiss a criminal proceeding allegedly pending against him in the Munici *345 pal Court of the Los Angeles Judicial District, and fur...
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Testator died in 1961 and his will, executed in 1950, was admitted to probate the same year. He left $10,000 of his $372,814.01 estate to the brother and three sisters of his predeceased wife, the residue was devised and bequeathed in trust to Bank of America National Trust & Savings Association, providing a monthly income to his only child and after her death, monthly payments for the support of ...
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Thomas Mahoney died on January 13, 1956, as the result of injuries received on December 15, 1955, when an overhanging boulder dropped on him from the roof of a tunnel under construction. His widow and two daughters brought this action for damages for his death. Defendant is the manufacturer of both the dynamite and the blasting caps used in holing out the tunnel. These caps are designed to caus...
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Defendant insurance company issued a health and accident policy to plaintiff Walter M. Callison, effective February 5, 1958, which policy also covered his son, plaintiff Russell Callison, aged 6 years. It provided for payment of expenses incurred while “necessarily confined in a hospital... as the result of injury or sickness.” On March 21, 1960, the boy was severely burned in a fire and w...
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Following a collision between plaintiffs’ Cadillac and defendants’ truck, plaintiffs (husband and wife) recovered a judgment of $1,103.43 for damage to their Cadillac. The wife was driving and will be referred to hereafter as “respondent.” Defendants’ appeal raises but one issue, whether the evidence is sufficient to sustain the trial court’s finding that their truck driver was negligent. The...
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This is an appeal from an order fixing the inheritance tax in the estate of R. J. Patell. The parties have stipulated that R. J. Patell and Riyoko Patell were married August 3, 1927, in Japan. They established domicile in California in 1940, and R. J. Patell died testate June 2, 1960, domiciled in and a resident of Marin County, California, leaving as his surviving spouse Riyoko Patell, also a ...
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The record in this case is voluminous and there is substantial conflict as to many of the facts. However, as is our duty on an appeal, we limit our statement to the facts found by the trial court and sustained by the evidence, and to the version most favorable to respondent. 1 A company known as “Nips, Inc.,” located in New York, originated the concept of bottling and merchandising...
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221 Cal.App.2d 392 (1963) EDMOND BESHARA, Plaintiff and Respondent, v. WILLIAM GOLDBERG, Third Party Claimant and Appellant. Civ. No. 27021. California Court of Appeals. Second Dist., Div. Four. Oct. 21, 1963. Milton Zerin for Third Party Claimant and Appellant. John Hay for Plaintiff and Respondent. BURKE, P. J. [1a] The issue in this appeal is the validity of a purported levy of attachme...
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This appeal is from a conviction of murder in the second degree and of assault with a deadly weapon. There are many assignments of error, most of which we find unsubstantial; some need not be discussed. The contention most earnestly urged is that the district attorney who prosecuted the case was guilty of prejudicial misconduct and of bad faith throughout the trial and in his argument to the ju...
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Appellant was charged with forcible rape, tried to a jury and convicted. He appeals from the *409 judgment. The prosecutrix lived near where the appellant resided. About 1:30 a.m. on August 4, 1962, she was awakened by a young Negro man who, covering her mouth with one hand while he held a knife to her throat with the other, proceeded to rape her. The sole contention on appeal is that the ident...
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This is an appeal by plaintiff from a judgment after jury trial for defendant in an action for damages for personal injuries arising out of a collision between two automobiles under the following circumstances: Defendant was driving his automobile going north on United States Highway No. 101, in the County of Sonoma, on June 3, 1959, at about 5:35 p.m. The said highway in the area of the c...
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General demurrer, on the ground that no cause of action was stated, was sustained with leave to amend, but plaintiffs declined to amend. Judgment for defendant Marvin Bosefield was entered, and plaintiffs appeal. The complaint, by Kelly Bosefield, a minor, by her guardian ad litem and by Manon Bosefield, her mother, is directed against Marvin Bosefield, the child’s grandfather who is the mother’s...
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The record herein consists of an agreed statement on appeal. There is no clerk’s transcript or reporter’s transcript. The pleadings are not before this court. Plaintiff, a chiropractor, had obtained from the defendant insurance company a policy of liability insurance which would indemnify him for any judgments rendered against him for such an injury as that involved herein, unless such liabilit...
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The Appellate Department of the Superior Court of Los Angeles County certified this ease for transfer to this court. Defendants Ross, LaRue, and Pope were accused in a complaint filed by the City Attorney of Los Angeles with violating section 415 of the Penal Code, a misdemeanor (disturbing the peace). Defendants were arraigned and were released on bail—$105 each as to Ross and LaRue, and $525 ...
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In an information filed by the district attorney of Los Angeles County, defendant was charged with the crime of robbery, a violation of Penal Code section 211. The information alleged a prior felony conviction. Defendant pleaded not guilty and denied the prior conviction. During *450 the course of the trial, however, defendant out of the presence of the jury, admitted the prior conviction to he...
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Ernest A1 Boles was convicted by a jury of the crime of receiving stolen property. He has appealed from the judgment which was entered and from the order of the court denying his motion for a new trial. The latter is now a nonappealable order. (Pen. Code, § 1237.) The owner of a men’s wear store in Red Bluff discovered on the morning of February 4, 1963, that during the weekend some merchandise...
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Defendants Louis C. and Eduarda S. Moore appeal from a money judgment for plaintiff John B. Ehman in an action to recover on a promissory note. Appellants’ sole contention is that the trial court erred in terminating the trial and ordering judgment for respondent before appellants had had an opportunity to complete their defense. Under this general assignment of error, appellants specify that t...
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221 Cal.App.2d 464 (1963) ERWIN C. NIELSON, as Administrator with the Will Annexed, etc., Plaintiff and Appellant, v. WILLIAM H. RUEHL, et al., Defendants and Respondents. Civ. No. 20959. California Court of Appeals. First Dist., Div. Three. Oct. 23, 1963. Richard F. Backman for Plaintiff and Appellant. Clark L. Bradley for Defendants and Respondents. DRAPER, P. J. This is a father-son dis...
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There are two motions to dismiss appeal before this court. One motion is by the respondents Michael Wind, et al. The other motion is by the People of the State as intervener. The action is for an injunction enjoining defendant Hite, as registrar of voters, from submitting a certain proposition to the voters of Los Angeles County at the general election to be held on November 6, 1962. The proposit...
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This is an appeal by plaintiffs [i.e. purchasers] from a judgment of dismissal in an action wherein plaintiffs sought specific performance of and damages with reference to a sales agreement for the purchase of real property. The pertinent facts will be set forth under the various contentions. The first issue is whether the contract for the sale and purchase of the subject real property is...
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Plaintiff, who holds a degree of Doctor of Philosophy in Geophysics, is an expert in the art and science of reading and evaluating electric logs of oil and gas wells. After a period in which plaintiff had performed services for defendants as a consultant, in March 1955, plaintiff and defendant Calhoun 1 entered into an oral agreement whereby plaintiff was retained by defendant on a part-time ba...
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Plaintiff was a defendant in a divorce proceeding. Judgment was entered against him from which he appealed. The appeal was unsuccessful and a hearing was denied by the Supreme Court. (Haldane v. Haldane, 210 Cal.App.2d 587 [26 Cal.Rptr. 670].) Thereupon plaintiff brought an action in equity to set aside the judgment (the interlocutory decree of divorce) entered in the former action, alleging ...
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In this action to foreclose a mechanics’ lien, plaintiffs had judgment against Eichler Homes, Inc. (hereafter called Eichler), Freeman Paving Company (hereafter called Freeman), William Stecker, an individual doing business as W. H. Stecker Company, and United Pacific Insurance Company (hereafter called United). All of said defendants except Stecker appeal therefrom. We set forth the follo...
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The trial court found defendant. guilty of having amidone in her possession in violation of section 11500, Health and Safety Code, and that she suffered two prior felony convictions (narcotics and robbery). Appealing from the judgment she claims there was no probable cause for her arrest. Defendant did not take the stand; only two witnesses testified—a police chemist, who testified that exhibit 1...
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Plantiff, a licensed real estate broker, brought action against defendants PosalsMs, “buyers,” and defendant Gilmore, “seller,” for damages arising out of the failure of the parties to complete a sale of real property. Both buyers and seller demurred. Buyers’ demurrer was overruled and is not an issue on appeal. Seller’s general demurrer was sustained as to all counts. Plaintiff filed his amend...
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Plaintiffs are the widow and minor children of a workman who was killed when a machine, manufactured by respondent and sold by it to plaintiffs’ intestate’s employer, accidentally started. Claiming negligence and breach of warranty, plaintiffs sued four California corporations, a Connecticut corporation, and respondent, an Illinois corporation. All of the defendants except respondent have appea...
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When Mitzi Martinez, a minor, plaintiff-respondent here, was 3 years old she lost her right eye. Through her mother as guardian ad litem Mitzi brought this action to recover damages. She obtained a judgment for $150,000 against defendants-appellants, Benjamin Rex Moore and Vivian Moore, individually, and doing business as Rex Moore Company, a copartnership. The Moores appeal. Joseph French and Loi...
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Defendant was convicted of violation of Penal Code section 470 (forgery). He appeals contending principally that (1) there was no corroboration to the testimony of his accomplice and therefore insufficient evidence to support the conviction; and (2) that evidence of his own extra-judicial statement received in evidence as an admission was inadmissible hearsay. Both contentions are unsound. Defend...
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This is an appeal by the City of Alameda, the Pension Board of the City of Alameda, and the individual members of said pension board, from a judgment directing them to pay respondent Robert E. DeCelle, for the duration of his lifetime, a monthly pension in an amount *531 equal to 13/50ths of the monthly salary being paid to members of the City of Alameda Fire Department holding the rank of lieu...
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This is an appeal from a judgment and from an order denying a motion for a new trial. The judgment was in favor of Becky Jane Stevers and against Barney R. P. Saunders in an interpleader action brought by the Union Central Life Insurance Company to determine the beneficiaries entitled to the proceeds of two life insurance policies issued by the company on the life of Nancy Saunders. Since the ord...
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Defendant was convicted of soliciting Martin Bryman to commit bribery in violation of section 653f, Penal Code. He appeals from the judgment; his purported appeal from the order denying motion for new trial is dismissed. (Pen. Code, § 1237; People v. Eppers, 205 Cal.App.2d 727 [23 Cal.Rptr. 222].) Defendant neither testified nor offered evidence on his behalf ; thus, the facts are essential...
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James Byrd, accused of robbery and of having suffered three prior convictions of felony, admitted *552 the prior convictions, and was convicted of robbery of the second degree. He appealed from the judgment in propria persona and noticed an appeal from the nonappealable order denying his motion for a new trial. Upon his application we appointed counsel. A comprehensive review of the record has ...
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Petitioner, the compensation insurance carrier for Arabian American Oil Company seeks annulment of a permanent disability award to Francis G. Thomas, an A rameo employee. In March 1959, while seated in a chair in his living quarters in Saudi, Arabia, Thomas reached to pick up a boot. Acute back symptoms ensued, and surgery, including a spinal fusion, was performed in May. To be compensable, t...
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In this action plaintiffs sought a declaration that an automobile conditional sale contract, and a prom *567 issory note given in connection therewith, were void under the provisions of section 2982, subdivisions (a) and (c), of the Civil Code in that the plaintiffs did not make a cash down payment as stated in the contract; the “Time Price Differential” was not entered on the contract; and the...
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Plaintiff sued for damages for injuries allegedly resulting from unsterile injections causing abscesses. Plaintiff, a medical assistant and receptionist in defendant’s office, was treated by defendant for pneumonia and in the course of treatment received 47 injections in her buttocks. *570 About three to four months after the initial injections approximately 30 severely infected abscesses appea...
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Plaintiff George Cox commenced an action against defendant James Pithoud to recover the sum of $1,064 for loss of and injury to cattle which had been delivered to defendant for pasturing. The defendant filed an answer and cross-complaint denying any liability or neglect on his part and also praying for $45 balance due on pasturage. The court found in favor of plaintiff and judgment was ent...
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Appellant was charged with the crime of escape. (Pen. Code § 4531.) The evidence showed the following: He was convicted on March 15, 1957, in Santa Clara County of a violation of section 476a of the Penal Code. Pursuant to that commitment he was eventually transferred from Folsom State Prison and was received at the Iron Mine Camp, a division of the forestry camps under the supervision of the Dep...
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Harry Corson was charged by information with the crime of assault with a deadly weapon. He was found guilty as charged by a jury, probation was denied, and judgment was pronounced sentencing him to a term in the state prison. He has appealed from the judgment entered. The factual situation as shown by the record may be summarized as follows: Corson and his wife lived in a house on a ranch owned...
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The defendant killed a woman by stabbing her 51 times with an ice pick; was charged with murder; at all stages of the proceeding was represented by the public defender; upon advice of his counsel, waived a preliminary hearing and, in the superior court, entered pleas of not guilty and not guilty by reason of insanity; subsequently, was the subject of an examination by two court-appointed psychiat...
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Appellant was convicted of the charge of committing lewd and lascivious acts upon the body of a 4-year-old girl, after a jury trial on July 24, 1962. The proceedings were thereupon suspended and appellant was found by the court to be a sexual psychopath and was thereafter sent to Atascadero State Hospital for observation and diagnosis. On November 16, 1962, after observation, the appellant was re...
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Petitioner, Thomas Joseph Pi~zo, was convicted of a violation of section 11721 of the Health and Safety Code; was certified by the Municipal Court of the Stockton Judicial District, in the County of San Joaquin, to the superior court of that county, as a probable narcotic drug addict; was the subject of a proceeding purportedly pursuant to section 6450 et seq. of the Penal Code, i.e., proceeding ...
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Appellant, charged with the murder of his mother, pleaded not guilty, and not guilty by reason of insanity. Proceedings were instituted pursuant to Penal Code section 1368 to determine whether he was presently sane and able to stand trial. Psychiatrists reported appellant to be *601 sane, and the court found him sane and able to assist in his own defense. He thereafter withdrew his plea of not ...
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221 Cal.App.2d 611 (1963) KARL R. GROH et al., Plaintiffs and Respondents, v. KOVER'S BULL PEN, INC., et al., Defendants and Appellants. Civ. No. 27209. California Court of Appeals. Second Dist., Div. Four. Oct. 29, 1963. Milo V. Olson, Paul B. Noel and Frank D. Marco, Jr., for Defendants and Appellants. *613 John P. McGinley, Robert H. Dietrich and Bertram L. Linz for Plaintiffs and Respond...
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Defendant was charged with and convicted of second degree burglary, in violation of Penal Code, section 459. It was alleged and he admitted incurring two prior felony convictions. After filing his appeal, defendant requested this court to appoint counsel to represent him. The appointed counsel, Carl R. Yoder, reviewed the record in the case and advised the court that his review and research discl...
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The appellant was a codefendant of Finis Helium whose initial conviction was reversed in People v. Hellum, 205 Cal.App.2d 150 [22 Cal.Rptr. 724], After Helium’s conviction was reversed by this court because he had not been represented by counsel at the preliminary hearing, the conviction in appellant’s case was reversed for the same defect upon stipulation of the parties. (People v. Jones, ...
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is an appeal by defendant from a judgment in favor of plaintiffs, Paul H. Ong and Roger Hom, after a jury verdict in consolidated personal injury actions arising out of an automobile-pedestrian accident. Facts The facts connected with the happening of the accident are essentially as follows: 1 Plaintiffs were crossing Broadway at its intersection with Grant Avenue in Sa...
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This is an appeal from an order declaring a minor child free from the custody and control of both of his parents. The appeal is by the natural parents and by Mr. and Mrs. Jasaitis, one of two sets of prospective adoptive parents, all appellants being represented by the same attorney. The child was born on August 5, 1960. The parents were not then married, but they did marry on October 11, 1960, in...
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221 Cal.App.2d 668 (1963) JAMES R. BRISCOE, Plaintiff and Respondent, v. MARJORIE L. BRISCOE, Defendant and Appellant. Civ. No. 27191. California Court of Appeals. Second Dist., Div. Four. Oct. 30, 1963. Gilbert, Thompson & Kelly and Jean Wunderlich for Defendant and Appellant. Darling, Shattuck, Hall & Call and Thomas F. Call for Plaintiff and Respondent. JEFFERSON, J. In 1957 Marjorie Br...
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William Fryer (hereinafter William) was the beneficiary of a group contract of medical and hospital insurance issued by defendant Kaiser Foundation Health Plan, Inc. (hereinafter defendant.) 1 The complaint alleges *676 that: On August 13, 1957, William suffered a heart attack, requiring immediate hospitalization; his wife, Nell, called the telephone numbers announced by...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with possession for sale of a narcotic, heroin, in violation of section 11500.5 of the Health and Safety Code. Defendant entered a plea of not guilty. Trial was by the court, trial by jury having been duly waived by defendant and all counsel. Defendant’s motion to strike all evidence on the ground that...
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Appeal from conviction of second degree murder. Once more an appellate court is requested to weigh admissibility of a confession to an unwitnessed murder against claims of police coercion used in producing the confession. Evidentiary use of an involuntary confession is a denial of due process of law, violating both federal and state Constitutions and requiring reversal of the conviction, even ...
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This appeal comes to us on an agreed statement of facts relating that Floyd McNabb obtained a building loan of $18,000 from respondent savings and loan association, to build a home on his lot in Orange County. The loan was evidenced by a promissory note secured by a first deed of trust on the property. The loan was set up under Account No. 4217, and McNabb executed a “Building Loan Agreement an...
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The defendant Bailway Company appeals from a judgment, entered after verdict, awarding the plaintiff $20,000 for injuries sustained when she fell while walking across the railway company’s tracks at their intersection by a public street and sidewalk; claims that the trial court erred in the giving of instructions and also claims that the evidence is insufficient to sustain the amount of the awa...
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Appellant, Raymond Hilliard, was charged by information with possession of a deadly weapon by an ex-felon in violation of section 12021 of the Penal Code and three prior convictions. Appellant admitted the three prior felony convictions. On this appeal from the judgment rendered on the jury verdict finding him guilty as charged, he contends that the evidence on which the conviction is based was e...
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221 Cal.App.2d 725 (1963) 34 Cal. Rptr. 749 Estate of MAUDE FRIES, Deceased. WALTER FRIES, Petitioner and Appellant, v. GEORGE BEADLES et al., Objectors and Respondents. Docket No. 26939. Court of Appeals of California, Second District, Division Three. October 31, 1963. *726 Virgil V. Becker and Cecil L. Whitehead for Petitioner and Appellant. Benjamin P. Riskin for Objectors and Respondents. FOR...
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221 Cal.App.2d 732 (1963) THE PEOPLE, Plaintiff and Respondent, v. JAMES SHORTS, Defendant and Appellant. Crim. No. 8462. California Court of Appeals. Second Dist., Div. Three. Oct. 31, 1963. Albert C. Garber, under appointment by the District Court of Appeal, for Defendant and Appellant. *733 Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack E. Goertzen,...
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Access to the production lot of defendant studio is by means of a gate or turnstile. This turnstile resembles the ordinary revolving door, except that, instead of the usual glass panels, each panel or segment is composed of a series of metal bars. The gate is controlled by a button in the casting office, which button, when pushed, activates an electric current which releases a dog or catch. Whe...
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Defendant was indicted for a violation of section 11501 of the Health and Safety Code (sale of narcotics); two prior felony convictions were alleged in the indictment. After a mistrial was declared, defendant was again brought to trial before a jury, which returned a verdict of conviction. Defendant admitted one of the alleged priors and the allegation as to the second was stricken. A motion for ...
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221 Cal.App.2d 746 (1963) JEWELL C. POWERS, Plaintiff and Appellant, v. ROSE M. POWERS et al., Defendants and Respondents. Civ. No. 10621. California Court of Appeals. Third Dist. Oct. 31, 1963. Leander W. Pitman for Plaintiff and Appellant. Lopez & Haines and Willis E. Haines for Defendants and Respondents. FRIEDMAN, J. Plaintiff, Jewell C. Powers, is the former husband of defendant Rose ...
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Defendant, 19 years old, pleaded guilty to three counts of manslaughter by vehicle and one count of. violating Vehicle Code section 23101 (felony drunk driving), On appeal defendant urges that the court abused its discretion by sentencing him to state prison and refusing to refer him to the California Youth Authority for possible commitment to an institution of that agency. Following the plea o...
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This appeal originated in a proceeding brought by the City of Carlsbad, a city of the sixth class, appellant herein, to condemn approximately one acre of land located wholly outside its corporate limits and lying within the boundaries of the City of Oceanside for the purpose of relocating thereon a storm drainage canal. The defendants-respondents are James B. Wight and Cora I. Wight, record own...
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Appellants Wied and David M. and Mary Bess Rhea appeal from a judgment in favor of respondents Hake et al., after a nonjury trial in which the court awarded the respondents judgment against Rhea for foreclosure on certain laundry equipment under a chattel mortgage, the balance being due in the sum of $15,919.21; and a judgment against Wied for rental of certain equipment in the sum of $7,800. ...
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Petition for writ of prohibition, mandamus, certiorari, or other writ, seeking to prohibit the superior court from enforcing an order requiring answers to certain questions in the taking of depositions. QUESTIONS PRESENTED. 1. Is the petition proper? 2. Are petitioner’s witnesses subject to prosecution under the Alcoholic Beverage Control Act and therefore justified in *775refusing to answer on th...
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Appellants, the executor and attorney, appeal from the probate court’s order which denies them compensation for extraordinary services rendered during the administration of the estate of Eella Adair Walker. Two issues are presented, first, when services of the type listed in Probate Code section 902 are rendered, has the court discretion to deny extra compensation, and second, did the court here a...
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Appellant, Hohener, gave an assignable option to purchase land which was assigned to respondent, Gauss. The option required payment of $1,200 on or before each six-month period. On April 20, 1961 and October 20, 1961, payments were due. On April 8, 1961, a $1,200 check sent by Gauss was received by Hohener. He simply held the check. On October 3, 1961, a second $1,200 check was received. Both wer...
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Plaintiff seeks damages for alleged libel. Demurrer to his second amended complaint was sustained without leave to amend. Judgment of dismissal followed, and plaintiff appeals. Plaintiff alleges that: he was a councilman of the City of Albany, and a candidate for election to that office; before the election defendants distributed to the “citizens and electors” of Albany a circular which fa...
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JThis is an appeal from an order refusing to confirm the sale of real property by the executrix of the above entitled estate. Respondents entered into an agreement with the heirs of the estate, as evidenced by escrow instructions signed July 13, 1962, whereby respondents agreed to buy and the heirs agreed to sell certain real property in the estate for the sum of $8,000 cash, conveyance to be made...
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Decedent died leaving a surviving spouse but no issue. She was also survived by a nephew and three nieces, children of her deceased sister. Approximately three years prior to her death she executed a document which, on a prior appeal, was declared to be a will and entitled to probate. (Estate of Gutierrez, 189 Cal. App. 2d 165 [11 Cal. Rptr. 51].) The instrument read as follows: “For Mauric...
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Defendant was charged in the information with two counts of robbery and one of assault with a deadly weapon. At the trial, the district attorney dismissed the assault count. The jury found defendant guilty under the other two counts and fixed the degree of robbery as first degree. Defendant appeals from the judgment of conviction. He also purports to appeal from the order denying motion for new t...
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JDefendants appeal from a summary judgment granted to plaintiffs in this action on a promissory note- Defendants D’Orazi purchased an Oregon ranch from plaintiffs. As part of the purchase price they endorsed to plaintiffs, with recourse, unsecured installment note of defendant Dolgin. Upon default in installment payments, plaintiffs declared the entire amount due and brought this action. D...
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JThis is an appeal from a judgment dismissing appellant’s cross-complaint after the trial court sustained respondents’ demurrer without leave to amend. The *32 order sustaining the demurrer was made on the sole ground of res judicata. In order to understand respondents’ plea of res judicata and the reason for the trial court’s judgment it is necessary to notice some of the prior proceedings i...
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On May 2,1961, Annette Yde Lake sued her daughter, Ann Sterling, for support; later her order to *36 show cause for support pendente lite, attorney’s fees and court costs was ordered off calendar. Several days thereafter, on July 5, 1961, defendant having arranged for her support and maintenance, plaintiff, on that day, personally told her-counsel, John Guerin, to terminate all lit...
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JDefendants Liberty Mutual Insurance Company (hereinafter called Liberty) and Western Iron and Metal Company (hereinafter called Western) have appealed from a judgment in an action for declaratory relief brought by Jack Colby, Progressive Transportation Company (hereinafter called Progressive) and Transport Indemnity Company (hereinafter called Transport). The problem presented relates to the r...
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JIn an amended information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of possession of a narcotic, heroin, in violation of section 11500 of the Health and Safety Code. The amended information alleged three prior felony convictions, to wit, forgery on May 8, 1950, violation of section 11500 of the Health and Safety Code on December 30, 1953, and viol...
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JThe defendant, appellant herein, was charged with, tried by a jury for, and convicted of the offense of selling a narcotic, to wit, heroin, i.e., a violation of section 11501 of the Health & Safety Code; also was charged with two prior convictions, i.e., burglary in the second degree and robbery by assault, which he initially denied but thereafter admitted; moved for a new trial, which was den...
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Plaintiff Robert Gallina, a minor, brought this filiation proceeding through his guardian ad litem, Sara Rose Gallina, to have it adjudged that defendant Robert Antonelli was the father of plaintiff and under a duty to support him. The trial court, sitting without a jury, entered judgment for defendant. Plaintiff appeals therefrom. , Appellant’s first contention is that the evidence was insuf...
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Plaintiff, a passenger on a bus operated by the City of Santa Monica, was injured on October 19, 1961, when the driver closed the door on her head and knees. On August 15, 1962, she filed a petition for leave to file a claim against the city under section 716, Government Code; it was *70 denied by minute order of August 29, 1962. On October 15, 1962, plaintiff moved the court to re...
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220 Cal.App.2d 77 (1963) 33 Cal. Rptr. 621 DON WILSON BUILDERS et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 27491. Court of Appeals of California, Second District, Division One. September 11, 1963. *78 Thomas C. Webster and Clement H. Jacomini for Petitioners. No appearance for Respondent. Stanley Mosk, Attorney Gener...
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The People appeal from an order setting aside the forfeiture of defendant's bail. Such an order is appealable (People v. Wilcox (1960) 53 Cal.2d 651, 654-655 [2 CaI.Rptr. 754, 349 P.2d 522]). Defendant has not filed any brief and therefore we accept as true the statement of facts in the appellant’s opening brief. (Cal. Rules of Court, rule 17(b) * .) *106 Defendant had been charged wi...
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Defendant admitted three prior felony convictions, including narcotics violations in 1951 and 1955, and was found guilty of possession of heroin by the court sitting without a jury. He appeals from the judgment of conviction and order denying motion for new trial. The purported appeal from the order is dismissed. (Pen. Code, § 1237.) In the early morning of March 23, 1962, Officers Gibson and Fowl...
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Plaintiffs, two corporations having interrelated interests, purchased from defendant two contiguous parcels of desert land near Palm Springs. Consideration therefor was paid and title transferred. The agreement of the parties, formally set forth in separate escrow instructions covering the two parcels, indicates that defendant (seller) undertook to construct a road, which was to he a continuati...
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In a divorce action instituted by the wife, the husband cross-complained. A main issue at the trial was custody of the children. The husband contended the wife was an unfit person because of her excessive use of narcotic drugs. During the trial there was evidence (according to the allegations of respondent court’s answer in these proceedings) that the wife had obtained prescriptions from eight ...
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The plaintiff, Ora Jean McIvor, brought this action to recover damages for injuries sustained as a result of a collision between an automobile driven by the defendant Tollefsen, in which she was riding as a “passenger for a consideration” and an automobile driven by the defendant Savage. The plaintiff is the appellant herein, and the defendants are respondents. In her complaint, the plaintiff c...
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Appellant was convicted after trial by jury of three counts of robbery and a fourth count of kidnaping. He has appealed from the judgment of conviction as to all four counts. Two bandits carrying guns robbed a market in Riverside the night of January 19, 1962. Wearing paper sacks over their heads, the robbers forced employees and customers to lie behind the counter and then tied and robbed them...
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Appellant was charged by an information with the crime of conspiracy to pass worthless checks. One Charles L. Groover, a janitor, stole five checks from his employer in Oakland, California. He and appellant passed three of the checks in the Castro Valley area and one in Emeryville in Northern California. They then flew to Anaheim in Southern California, where they transferred a nonexistent bank a...
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Plaintiff received a judgment of $4,000 against defendants as and for the reasonable value of his services to them. Defendants appeal. The defendants, who are husband and wife, owned a parcel of real property near Hayward, California, situated within an area of condemnation undertaken by the Hayward Union High School District. The property was improved by three single family dwellings and one d...
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Plaintiff brought this action to recover money due for the care, support and maintenance of Albina Cerruti, a patient at Napa State Hospital (Welf. & Inst. Code, § 6658). The complaint covered the period from March 28, 1957, through March 27, 1961. This is the four-year period immediately preceding the death of Francesco Cerruti, the patient’s father, on March 28, 1961. Defendant bank...
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Appellant seeks a refund of unemployment insurance taxes for the years 1944 through 1950. The amount claimed is $54,546.49. The trial court found appellant entitled to a refund of $1,521.28 and ordered judgment for this amount, plus interest. This appeal followed. In order to understand the contentions of the parties it is necessary to note some of the statutory background of the controversy. ...
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Plaintiff Ted Mason was injured in the course of his employment as a mechanic with Westside Tractor Company. He filed this common-law negligence action against Jack Case, vice president of the firm, and Herbert Kattenhorn, the shop foreman. There was a jury verdict in favor of both defendants and Mason appeals. Effective in September 1959 section 3601 of the Labor Code was amended to ban n...
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Defendant-appellant was convicted of violation of Penal Code, section 261, subdivision 3, and section 209, in that he forcibly raped Mary Chutnicut and kidnapped her for the purpose of robbery and caused her bodily harm. He was also charged with and admitted a prior felony conviction for assault by means of force likely to produce great bodily injury. He was found guilty of both counts charged an...
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Plaintiff County of Humboldt (hereafter referred to as County) appeals from an adverse judgment entered on a jury verdict in an action for damages for the destruction of a bridge. The complaint is in two counts. The first count sets forth a cause of action against the driver and owners of a certain Peterbilt logging truck, alleging in substance that one Brown, the driver thereof, so neglig...
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Defendant appeals from judgment declaring a certain deed void and quieting title to real property in plaintiff. Question Presented Suffiency of the evidence to support the finding of nondelivery of the deed to take effect in the grantor’s lifetime. Record In June 1952, defendant’s sister Pauline Palm handed to him a gift deed of certain real property in San Francisco. Defendant placed the...
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Defendant was charged in an information with a violation of section 459 of the Penal Code (burglary). The information also charged two prior felony convictions (auto theft and burglary). Defendant pleaded not guilty and not guilty by reason of insanity, but withdrew the latter plea shortly before trial. He thereafter admitted each of the two prior convictions charged in the information. A jury fo...
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Plaintiff John Peter Covo appeals from a judgment of dismissal entered upon the sustaining without leave to amend of a demurrer to his first amended complaint. Plaintiff’s amended complaint purports to set forth two separate causes of action: Count I alleges that Shearer had leased from Berryessa 60 acres of pastureland in Santa Clara County, for raising some 60 head of cattle, and employe...
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This is an appeal by plaintiff Joseph Orlando from a judgment in favor of defendants Lucille and Walter Berkeley, entered upon the granting of defendants’ motion for summary judgment. The complaint alleges that on May 19, 1961, plaintiff entered into a written contract to purchase a home property from defendants for the agreed consideration of $15,500; that plaintiff made the purchase in relian...
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Plaintiffs sued Carobil Hospital, Dr. Novick, administrator, and Dr. Bankoff, chief surgeon, for negligence in the care and treatment of a minor for third-degree burns. Judgment for $35,000 in favor of Gilbert and $6,500 in favor of his father was entered on a jury verdict. Indulging in an extensive factual argument which has no place in a reviewing court (Overton v. Vita-...
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By information, petitioners were charged with possession of marijuana in violation of Health and Safety Code, section 11530. Their motion to set aside the information on the ground that the evidence against them was obtained by an illegal search and seizure was denied, and they now seek prohibition to prevent their trial. (See Castaneda v. Superior Court, 59 Cal.2d 439, 440 [30 Cal.Rptr. 1, 3...
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Appellant was originally charged with 11 counts of violation of Health and Safety Code section 11170, subdivision (1), in that he ‘did willfully, unlawfully and feloniously obtain and attempt to obtain a narcotic, to wit, morphine, by fraud, deceit, misrepresentation and subterfuge”; also charged with seven counts of violation of Health and Safety Code section 11170, subdivision (2), in that he “d...
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The plaintiff, by a third amended complaint, sought recovery of damages for breach of eon[1] *266 tract. One of the defendants moved for a summary judgment. Thereafter the motion was granted by an order entered in the minutes of the court under date of May 25, 1962. The minute order did not direct that a written order be prepared, signed and filed. Nevertheless, under date of May 2...
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Defendant appeals from a judgment of conviction of three violations of section 288 of the Penal Code (lewd and lascivious conduct). The first question is one of pleading. On June 22, 1962, an information was filed charging appellant with the commission of the act denounced by section 288a of the Penal Code (oral copulation) with a boy whose first same is Donald. On July 13, 1962, an amended i...
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The Department of Motor Vehicles, certain public officers, and the State of California itself appeal from a judgment directing a writ of mandate to compel refund to respondents of registration fees, license fees, and penalties which respondents had paid, under protest and threat of seizure, upon certain vehicles, and to compel payment of interest on the moneys ordered refunded. The questions ar...
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Patrick Farina and Albert Gloria were charged with burglary (Pen. Code, § 459) and conspiracy to tamper with a motor vehicle (Pen. Code, § 182). After trial by jury both defendants were found guilty on both counts. The appeal of defendant Gloria has been withdrawn, and only the appeal of defendant Farina is before us. Deputies of the San Mateo County Sheriff’s office had been detailed to observ...
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In a jury trial, defendants Otis Lee Drinkard and Terrell Conley, represented by counsel, were found guilty of burglary in first degree. The jury further found that both defendants were armed at the time of the commission of the offense. Conley had admitted five prior convictions. Probation was denied and defendants were sentenced to the state prison. Conley appealed from the judgment in propria ...
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This action for reformation of a deed, dated and executed July 9, 1936, was instituted on February 8, 1960, by E. D. Seymour and his wife Bessie A. Seymour, plaintiffs, cross-defendants and respondents, against Sarah Cariker as administratrix of the estate of J. D. Cariker, deceased. The property involved was an 80-acre parcel of land in Yucca Valley. The record comes to us only on the clerk’s ...
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Plaintiff, cross-defendant and respondent Merel W. Stromberg brought this action against his wife Tina Stromberg, defendant, cross-complainant and appellant, for separate maintenance (subsequently deleted) and also for divorce on the ground of extreme cruelty. The wife answered, denied the charges and filed a cross-complaint seeking a divorce on the grounds of adultery and extreme cruelty and ask...
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Defendant-appellant was charged with murdering his child, Cheryl Lawhon, in violation of Penal Code, section 187. He pleaded not guilty and not guilty by reason of insanity. Alienists were appointed and a hearing in reference to his present sanity was conducted. A trial was had on the not-guilty plea, resulting in a verdict of guilty of murder in the first degree. The same jury determined that de...
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The defendant was indicted for three sex offenses involving an 8-year-old boy, hereinafter referred to as the victim; was charged therewith in three counts, viz., with two violations of Penal Code section 288a, i.e., acts of sex perversion, and one violation of Penal Code section 288, i.e., lewd and lascivious conduct with a child; was tried before a jury and found guilty; on March 1...
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Petitioners Western Utilities Corporation and Pacific Indemnity Company seek by this writ of review to have the commission’s order in favor of applicant Catherine G. Halloway, awarding reimbursement for self-procured medical treatment and other benefits, annulled. Applicant sustained an industrial injury on April 23, 1957, while in the employ of petitioner Western Utilities Corporation, hereina...
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This is an appeal from an order denying a petition to confirm arbitration awards. *336 An employers’ association, whose members were engaged in the business of manufacturing garments, entered into a collective bargaining agreement with two unions which represented employees of garment manufacturing companies. A provision of the agreement was that each employer would pay weekly to ...
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Joseph Simoni and Leola Simoni were married in 1947. They adopted Ercole Bufalini Simoni, an adult. In November 1958, during the marriage, Joseph was injured in an industrial accident. On January 11, 1962, he received an Industrial Accident Commission award of $3,372.62, which he deposited in his name in the Santa Barbara Building and Loan Association on February 13, 1962. He died one month lat...
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The Cities of Los Angeles and Burbank appeal (a) from the judgment entered in a condemnation action brought by the State of California, acting by and through its Department of Public Works; and (b) from the subsequent order apportioning the award between them pursuant to the provisions of section 1246.1 of the Code of Civil Procedure. Although the State of California argues that the judgment sh...
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Defendant wife through her guardian ad litem, appeals from a judgment annulling her marriage to plaintiff Irving Goldstein upon the ground that defendant was married to another and the marriage had not been dissolved. Appellant’s attorney says: “The sole question presented by this appeal is whether or not the defendant, an incompetent person, has been denied procedural and substantive due proce...
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This action was brought by two residents and taxpayers of Los Angeles County who sought to recover for the benefit of the county the sum of $413,653.08, which had been appropriated and expended for the construction of three bridges and the paving of certain streets in that portion of the San Fernando Valley known as the Platt Ranch. The parties defendant include the county, the owners of the Pl...
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This is an appeal from a judgment entered in conformity with the confirmation of an arbitration award. 1 (Code Civ. Proc., § 1287.4.) The controversy was as to *387 whether the appellants Earl W. Rose, Mary B. Rawlings and George Newman were entitled to a portion of a commission of $9,750 resulting from the sale of real property in Hermosa Beach. The appellants and the respondent Gordon F. Pe...
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Defendant was charged with the crime of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245.) Trial by jury was duly waived and, after a trial, at which defendant was represented by the public defender of Los Angeles County, he was found guilty by the court. Probation was denied and defendant was sentenced to prison for the term prescribed by law, the court *392 r...
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Defendant-appellant, aged 19, was charged in a grand jury indictment, in count one, with unlawful possession of marijuana, in violation of Health and Safety Code, section 11530; in count two, with unlawful possession of heroin, in violation of Health and Safety Code, section 11500; in count three, with murder of Larry Cortez, aged 19, in violation of Penal Code, section 187; and in count four, wi...
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The plaintiff sued the defendant and its driver, Clyde Fenwick, for damages by fire to a double drum *400 portable drilling unit mounted upon a semitrailer which was being hauled from a point near Camarillo in Ventura County to a location near Delano in Kern County. By stipulation of the parties, the total amount of plaintiff’s damage by fire and the resultant loss of use was $16,7...
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Plaintiff employee, seeking commissions allegedly earned by him, had judgment for $4,314.99. Defendant employer appeals. Defendant, a hardware dealer, employed eight estimator-salesmen, including plaintiff. Each was to secure plans for building construction, perpare lists of the hardware required, and submit defendant’s bid therefor. If the bid were accepted, the estimator-salesman was to supervis...
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This is an appeal from a judgment based on a jury’s verdict in favor of respondents on respondents’ claim of fraudulent representations alleged to have been made by appellants in the sale of certain restaurant fixtures. Appellants also appeal from the trial court’s denial of their motions for judgment notwithstanding the verdict and for a new trial. Since the order denying appellants’ motion fo...
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This is an appeal by the building superintendent and the members of the Planning Commission of Culver City from a judgment in a mandamus proceeding: (1) ordering the superintendent to grant the application of petitioners for a building permit to construct apartment buildings on three lots in Culver City, and to issue the permit, and (2) ordering the members of the commission to desist from interf...
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In this, the last of three trials, Demes was convicted by a jury of murdering one Browse and of assault with a deadly weapon with intent to murder Adam Safian, a police officer. The first trial resulted in a jury disagreement. At the second trial Demes and his codefendant, Kerfoot, were convicted of both offenses charged in the information. Kerfoot abandoned his appeal. The judgment as to Demes, ...
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Defendants were convicted of the unlawful possession of heroin for sale in violation of section 11500.5, Health and Safety Code. The court found that Villanueva had suffered a prior felony conviction for robbery. He was sentenced to the state prison. Miss Cabral was granted probation for six years, the first year to be spent in the county jail. Villanueva has appealed from the judgment, sentence ...
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Defendant was tried by jury and found guilty of both counts of an indictment charging him with committing lewd and lascivious acts upon children, in violation of Penal Code, section 288. Proceedings were suspended and defendant was certified for examination as a sexual psychopath. This appeal is taken from an order denying a motion for new trial. (Pen. Code, § 1237, subd. 2.) Defendant’s conten...
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Defendant appeals from a judgment of conviction of possessing marijuana, in violation of the Health & Safety Code, section 11530. He admitted two prior felony convictions. Defendant contends that he involuntarily consented to the search of his bedroom by an officer in which the officer found marijuana. The officer called upon defendant at his home about noon, and was invited into the house...
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Defendant was charged with possession of heroin in violation of Health & Safety Code, section 11500, and with two prior convictions which were admitted. Defendant was tried and found guilty by the court, and sentenced to prison for the time prescribed by law. At approximately 6 :45 p.m. on October 11, 1962, San Diego Police Officer Myrann was in a parked police car and saw defendant approach the d...
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This is an appeal by plaintiffs from a summary judgment in favor of two of the six defendants in the action. Question Presented Was the trial court justified in granting the motion for a summary judgment ? Statement of the Case The action in the instant case is one for rescission on the ground of fraud. The action is brought against two sellers of real property, a re...
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On this appeal from a judgment after conviction by a jury for violation of section 11530 of the *486 Health and Safety Code (possession of marijuana), defendant raises a number of questions. In the discussion of each question we shall allude to the particular facts pertinent thereto. Preliminarily, however, we set out the following basic facts. On January 16, 1962, one Cliffor...
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Defendants appeal from the judgment in this eminent domain action fixing the amount of $48,200 as the compensation to be paid for the taking of their property. Defendants also appeal from the order denying their motion to set aside said judgment. William Steinberg and Abraham Berry were the attorneys of record for appellants and John J. Taheny, Jr., Deputy City Attorney, appeared for respo...
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Respondents, holders of a title insurance policy issued by appellant, having been sued by a third person on transactions connected with acquisition of the insured property, cross-complained against appellant on the policy and obtained judgment in amount $8,782.25. 1 This amount represents the sum paid to the third person in settlement of his lawsuit, plus attorney’s fees and costs. ...
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This case was on appeal in this court in April 1962 (People ex rel. City of Downey v. Downey County Water Dist., 202 Cal.App.2d 786 [21 Cal.Rptr. 370]). It is a quo warranto proceeding with respect to the existence of the Downey County Water District. The question on the former appeal was whether the district, by operation of law as a result of annexation proceedings, was merged with the ci...
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Action for declaratory relief in which plaintiff appeals from an adverse judgment. Plaintiff’s counsel made an opening statement at the trial pursuant to a stipulation “that said opening statement would be considered by the Court in the nature of an offer of proof upon which the Court could determine on the basis of the offer of proof whether he would direct a verdict against the plaintiff...
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On May 20, 1952, appellant was convicted of burglary, grand theft and two counts of assault with a deadly weapon; a further charge of prior conviction of robbery and serving of a term of imprisonment therefor was also found to be true. Upon appeal the judgment was affirmed on April 3, 1953, in People v. Collins, 117 Cal.App.2d 175 [255 P.2d 59]; the California Supreme...
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Appellant sought and. was denied a writ of prohibition in the superior court to prevent the Board of Trustees of the Auburn Union Elementary School District, by whom she was employed, from proceeding with a hearing on charges of misconduct brought against her. She filed the present appeal from the judgment denying the writ. Meanwhile the school trustees conducted a hearing on the charges and orde...
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This action arose out of an automobile accident in which defendant ran into the rear of plaintiff’s ear. At the trial, the jury found defendant liable, but awarded plaintiff only $2,000 damages. Plaintiff moved for a new trial and the court granted the motion. The principal conflict in the evidence at the trial concerned plaintiff’s injuries. It was established that shortly after the accident p...
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Petitioner, Eugene J. Lenci, is the subject of an order committing him to the Director of Corrections for treatment as a narcotic drug addict; was placed at the Corona Branch of the California Rehabilitation Center pursuant to such commitment; and petitions this court for a writ of habeas corpus to obtain his discharge therefrom upon the ground, among others, that he had not been given notice of ...
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This is an appeal by the cross-complainant, Nellie E. Daly, individually and as executrix of the estate of her husband, A. D. Daly, from a judgment denying recovery for trespass and the removal and conversion by the trespassers of 4,663 tons of gypsite from mining claims in the Mohave Desert. Originally, V. R. Smith, Helen Smith, H. E. Barnett, Leona Barnett, Pete Cassou, Freda Cassou, Alfred S...
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The defendant, respondent herein, is the Chief of Police of Westmorland; was indicted for the felonious false imprisonment of an 11-year-old boy, viz., false imprisonment effected by violence, menace, fraud or deceit in violation of sections 236 and 237 of the Penal Code; and moved to dismiss the indictment pursuant to section 995 of the Penal Code, upon the ground that it had been returned wit...
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This is an appeal from a judgment on the pleadings in an action for declaratory relief. Appellant insurance company issued each plaintiff-respondent identical automobile owner’s insurance policies. They contain the following provision by which the company agreed: “ (1) To pay all reasonable expenses incurred within one year from the date of accident for medical services. ’ ’ However, in conne...
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In 1953 plaintiff-appellant's father and mother executed a property settlement agreement in connection with their divorce proceeding. They agreed to convey a parcel of real property in Manhattan Beach to themselves as tenants in common and to each execute a will devising his one-half interest in the real property to plaintiff. They agreed not to revoke their wills unless plaintiff predeceased the...
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Defendants appeal from judgment in favor of plaintiff in the sum of $11,197.22 and providing for the foreclosure of a mechanic’s lien on certain property for said amount. QUESTION PRESENTED. As the court found that defendant was induced to enter into the building contract by plaintiff’s fraud, may plaintiff recover for services and materials provided in constructing the building ...
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Our original opinion in this case was filed on July 18, 1960, and for a statement of the factual background and the issues, reference is made thereto. (People v. Mullane, 182 Cal.App.2d 765 [6 Cal.Rptr. 341].) In accordance with procedure formerly followed, we made an examination of the record for the purpose of determining whether or not counsel should be appointed to represent appellant o...
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In an information filed by the District Attorney, defendants were charged in Count 1 with conspiracy to commit grand theft in that they agreed together and with unknown persons to commit grand theft, to cheat and defraud by criminal means, to obtain money and property by false pretenses and by false promises with intent not to perform such promises. In pursuance of said conspiracy, 25 overt acts ...
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By his complaint appellant sought judgment against the makers, the drawee banks, the collecting banks and intermediate endorsers of 167 payroll checks issued to him when he was under 18 years of age under a contract of employment as an actor. The complaint contained 19 counts 1 and plaintiff appeals from the judgment of the trial court which was adverse to him on all counts. App...
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This is an action to recover damages for personal injuries. Plaintiff appeals from a judgment adverse to her. Plaintiff was an employee of a copartnership. *682 Bespondent Bergere was one of the members of that copartnership. Appellant was injured in attempting to enter an automobile owned and driven by respondent. The trial court found, and its findings are sustained by substantial evidence, t...
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Appellant herein, George Cole Morrison, is the subject of the instant sexual psychopathy pro*686ceeding; on March 21, 1962, pleaded guilty to a violation of section 311.2 of the Penal Code, viz., possessing obscene pictures and exhibiting them to a 13-year-old girl; was certified to the Superior Court for consideration as a probable sexual psychopath; was found to be such and ordered placed in Ata...
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Plaintiffs appeal from an adverse judgment rendered after a nonjury trial in an action for damages for conversion. In September 1955 defendants Mr. and Mrs. Metzger sold to plaintiffs Mr. and Mrs. McAllister a 600-acre ranch located in Monterey County together with all buildings, appurtenances and equipment thereon, taking back from plaintiffs a purchase money deed of trust to secure payme...
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This is an appeal by plaintiffs from an order of the superior court quashing service of summons on defendant, National Aero Finance Co., Inc., 1 a Kansas corporation. The sole question on appeal is whether said defendant was doing business in this state so as to subject it to local process. The procedural background is as follows: Plaintiffs filed a complaint in the Superior Co...
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Convicted of commission of abortion (Pen. Code, § 274) upon Mrs. Dorothy Schwartz on September 1, 1961, defendant, a medical doctor specializing as an internist, appeals from the judgment. Counsel’s principal argument is insufficiency of the evidence, a position which the record plainly does not support. The “ ‘test on appeal is whether there is substantial evidence to support the conclusi...
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Convicted of second degree burglary, defendant Moore appeals from the judgment of conviction entered against him and a codefendant following a nonjury trial. In his brief filed herein, appellant states that he “does not contend that the evidence is insufficient to support the judgment,” but he assigns as prejudicial errors certain statements of counsel and rulings of the court made during the pro...
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Following a jury trial, defendants were convicted of the crime of kidnaping in violation of section 207 of the Penal Code and were committed to the Youth Authority. They have taken this appeal from the judgment of conviction and from the order denying their motions for new trial. Since said order is no longer an appealable order, the attempted appeal therefrom must be dismissed. (Pen. Code, §§ 123...
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Defendants appeal from an order vacating plaintiffs Sousas’ default and a default judgment thereon after plaintiffs failed to file a third amended complaint. QUESTIONS PRESENTED. 1. May a clerk enter default for plaintiffs’ failure to amend complaint ? 2. Is the method provided by section 581, subdivision 3, Code of Civil Procedure, for the dismissal of an action upon failure of ...
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Appellant brought this suit against respondents for the partition of personal property, and appeals from the trial court’s judgment denying him any relief. Since the dispute here is between appellant and Bess E. Meredith, we shall refer to the latter as respondent, and make specific reference to respondent Jill Shipstad by name where necessary. Throughout appellant’s brief there is a continuing...
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Three men were convicted of robbery (Pen. Code, § 211). Only Nooner appeals. At about 10:30 p.m., appellant and codefendant Rincon walked into a service station. They remained for some time, talking to each other and occasionally to the attendant. Appellant placed a phone call from a booth in the station area. The attendant serviced waiting cars and commenced closing the station. “Just shortly” be...
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This case has been certified to this court by the Appellate Department of the Superior Court of Los Angeles County. The defendant was charged in the municipal court with a violation of section 484 of the Penal Code (theft). After pleading not guilty she was tried by a jury and found guilty. A new trial was granted on the ground that certain evidence admitted during the trial had been illegally ob...
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Plaintiff, a young married woman, was injured in a fall from a ski lift operated by defendants. Her negligence suit went to trial before a jury, which returned a defense verdict. She appeals from the ensuing judgment. The ski lift consisted of moving overhead cables suspended from towers. Two-passenger chairs were suspended from these cables. The chairs faced forward as the cable transport...
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Defendant Arthur L. Trumbull appeals from a judgment taken against him and others after his default had been entered, Trumbull, Pankost, Blackburn and plaintiff Nemeth entered into a contract for the sale of land in which they had common interests and for a division of the profits by specified percentages. The land was sold. On December 30, 1960, Nemeth filed a complaint “for accounting, decla...
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Plaintiff appeals from an order striking as to Dorothy Davis the amended complaint. RECORD. Plaintiff has failed to bring before this court the original complaint. 1 Before us is a minute order of April 25, 1960, which discloses that the demurrer to the complaint of Bankline Oil Co., Ltd., was sustained and its motion to strike portions of the complaint was granted, plaintiff being allowed ...
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On October 1, 1962, defendants were charged by information with attempted robbery and assault by means of force likely to produce great bodily injury. After several continuances trial was set for November 26. On that day the district attorney moved to dismiss the information in order to charge defendants with robbery. The district attorney did not attempt to amend the information or to file an am...
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This is an appeal by the People pursuant to subdivision 1 of Penal Code section 1238 from an order dismissing the information charging defendant June Mennie Buese with bringing a drug into the Siskiyou County jail without having authority to do so by the rules of the jail (in violation of Pen. Code § 4573.5). The trial court ordered the dismissal, holding that said code section violated du...
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Defendant appeals from a judgment convicting him on two counts: (1) burning personal property with intent to defraud an insurer (Pen. Code, § 450a); and (2) presenting a false or fraudulent insurance claim (Ins. Code, § 556, subd. (a)). In the same trial defendant’s brother-in-law, Virgil Garrett, was convicted of violating Penal Code, section 450a and Insurance Code, section 556, subdivision (b) ...
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This is an appeal from a conviction of burglary. At about 4 o’clock in the morning of March 2, 1962, the janitor of a bar on the Napa-Vallejo Highway was forced by a masked man who was carrying a pistol to allow entry to the building and to point out the location of the cash register. He was struck over the head by something which felt like a bag with sand in it. He was forced to lie on the floor ...
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Petitioner Delbert Arthur Mulkey seeks prohibition commanding respondent superior court to desist and refrain from further proceedings upon counts II, III and IV of an information charging him with violations of section 470, Penal Code, in that he did “forge, utter or pass” four certain cheeks with intent to defraud. The prosecution was commenced through filing of a complaint in the Municipal C...
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Defendant was tried before a jury and convicted of possession of marijuana in violation of Health and Safety Code, section 11530. The trial judge suspended proceedings and granted probation on condition that defendant spend 60 days in the county jail. Defendant has appealed from the “judgment,” i.e., the order granting probation, and the order denying his motion for new trial. Early in the even...
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Defendant appeals from a judgment wherein he was convicted of pimping and pandering in violation of sections 266h and 266i of the Penal Code. Count I of the information charged that defendant, knowing Rose Mary Heulett to be a prostitute, derived support and maintenance from the earnings of her prostitution. In count II defendant was charged with having induced her by threats and violence to beco...
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This is an appeal by the Louisville and Nashville Railroad Company from an order setting aside a summary judgment. The action was brought by Albert V. Zancaner to recover damages for injuries suffered when a railroad freight car *838 door fell upon him while he was in the process of opening it. Zancaner sued the delivering carrier, Southern Pacific Company, and Louisville and ...
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On July 5, 1961, defendant was charged by information with grand theft for allegedly obtaining a loan of $800 from one Edna E. Joslyn by means of false representations. Defendant entered a plea of not guilty. Prohibition proceedings were subsequently instituted in the appellate courts by defendant and a continuance was granted pending the outcome. Thereafter the writ sought was denied by the st...
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Defendant was found guilty of committing an assault with a deadly weapon upon Bertha Lee Herd, in violation of section 245 of the California Penal Code. Probation was denied and he was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction. On the morning of June 23, 1962, defendant visited the home of his ex-wife, Bertha Lee Herd. That evening defe...
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This is an appeal from a judgment based upon an order declaring a nonsuit against plaintiff in an action, tried to a jury, for breach of an alleged oral contract. We state the facts conformably to the rule governing review of such a judgment. Defendant Campbell Soup Company is one of the great modern business corporations whose operations are both national and international in scope. Princ...
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Petitioner, James Dunn, appeals from an order denying his application for a writ of mandamus directing the municipal court to quash a search warrant on the ground that it was invalidly issued. 1 Question Presented Was the affidavit upon which the search warrant was based sufficient? We have concluded that this question must he answered in the negative. Statement of the Case The peti...
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George H. Allen appeals from a judgment denying his petition “for writ of mandate or writ of review” seeking to compel respondents Humboldt County Board of Supervisors and Humboldt County Planning Commission 1 to revoke and annul the granting to respondent A. G. Brisaek of a variance from the provisions of a county zoning ordinance. The basic facts are not in dispute. Appellant ...
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Plaintiff minor brought this action against the Stockton Golf and Country Club and Craig Moore, one of its members, to recover damages for personal injuries suffered when he was struck, while searching for golf balls on the club’s golf course, by a ball driven by defendant Moore. The jury returned a verdict in favor of the golfer against plaintiff and in favor of plaintiff against the club. Def...
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Defendant Zapata was charged with possessing heroin, in violation of Health and Safety Code section 11500. 1 Convicted after a nonjury trial, he appeals. Relying on Robinson v. California, 370 U.S. 660 [82 S.Ct. 141, 8 L.Ed 2d 758], he asserts that section 11500 is unconstitutionally applied here. The Robinson case, decided in June 1962, held th...
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Appellants-lessors leased a service station bordering Highway 99 to respondent-lessee several years *915 prior to the June 26, 1956, filing of a condemnation action by the State of California. The condemnation plan provided for a fence along the highway right-of-way line. On November 5, 1957, lessee exercised an option to extend the lease for a five-year term beginning January 1, 1...
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Appellant was convicted of receiving stolen property (Pen. Code, § 496). He was also charged with a prior felony conviction, and the jury found this charge to be true. He appeals from the judgment, contending first that certain evidence should have been excluded by the trial court because it was the product of illegal search and seizure, and second that the trial court is in error in finding th...
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Appellant was convicted of sodomy and lewd acts committed against a 12-year-old boy. The defense was general denial and alibi. No contention is made that the evidence is insufficient to sustain the judgment. The *924 single ground for appeal is the claim that there was misconduct on the part of the jurors and that it was an abuse of discretion for the trial court to deny appellant’s motion for ...
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This case comes to us from the Appellate Department of the Los Angeles Superior Court. It is in the identical procedural posture as People v. Randazzo, ante, p. 768 [34 Cal.Rptr. 65] filed this date, and involves the precise legal question decided in that case. Upon the grounds and for the reasons stated in Randazzo, the order and judgment from which the People have appealed are reversed. Ashburn,...
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The defendant was charged with a violation of Section 20002, subdivision (a), of the California Vehicle Code which provides as follows: “The driver of any vehicle involved in an accident resulting in damage to propperty shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of section 20005 and any person failing to stop or to comply with said requiremen...
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This is an appeal from a judgment which determined the ownership of certain certificates for shares of stock of Benedict Heights, Inc., and adjudged that the corporation was bound to transfer and reissue of record certain of such certificates in accordance with the determination of ownership. The appellants are designated in the notice of appeal as “Vid Rosner and Miriam Benjamin, President and...
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This is an action upon an accidental death policy,' plaintiff ■ being the beneficiary and defendant'the insurer. A jury returned its verdict for defendant, and plaintiff has appealed.. On June 16, 1958, the deceased, who was then 80 years of age, fell on some porch steps. He was taken to the county hospital where he remained for oné week. 5-rays did not indicate any broken bone. He was in ...
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Plaintiff obtained an interlocutory ~udgment of divorce against defendant by default. The terms of the judgment were based upon a property settlement agreement which had been signed by both parties. More than six months after the entry of default, defendant made a motion to set aside the judgment upon the ground that it had been obtained by extrinsic fraud. This motion was supported by an affidav...
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Pursuant to sections 11612 and 11613 of the Health and Safety Code, notice of seizure and intended forfeiture proceedings were filed by the People against the defendant vehicle, charging a violation of section 11610 of said code in that a narcotic was kept, deposited or concealed in the vehicle. Based on a finding that the automobile was seized and evidence taken therefrom in the course of an ill...
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219 Cal.App.2d 22 (1963) W. E. McCALL, Plaintiff and Appellant, v. OTIS ELEVATOR COMPANY et al., Defendants and Respondents. Civ. No. 180. California Court of Appeals. Fifth Dist. Aug. 5, 1963. Kane, Canelo & Mash, A. B. Canelo, Cyril Viadro and Guernsey Carson for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Colye & Best and William B. Boone for Defendants and Respondents....
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Plaintiffs sued the County of Kern for damages on a theory of inverse condemnation for the partial destruction, and in part for the cost of relocation, of water pipelines lying under Wofford Boulevard in Kern County. Originally, other defendants were also named as parties, but the cause was dismissed by consent as to all of them except the County of Kern. The record shows that Irven L. Wofford an...
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This appeal is from an adverse judgment on a complaint and a cross-complaint arising out of transactions concerning a lease of real property. Respondent, lessor, agreed to lease real property for restaurant purposes to appellants’ predecessors in interest, C. D. May and his wife. The lease, executed December 1, 1954, provided for a 10-year term with an option for an additional 10 years. Respond...
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Appellant was convicted of burglary (Pen. Code, § 459) and theft (Pen. Code, § 487) and brings this appeal, contending the evidence is insufficient to support his conviction. The record before us shows that in November 1961 appellant, a parolee and unemployed, was directed by his parole officer to find a job. He obtained work as a dishwasher at the Crystal Springs Golf Club, in San Mateo County...
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This is an appeal by plaintiffs from a judgment for defendants in an action brought in behalf of three minor plaintiffs for the wrongful death of their parents. A résumé of some of the facts as elicited from the reporter’s transcript is as follows: During the evening of April 23, 1960, Ralph Hop and Blanche Hop, the father and mother respectively of the three minor children, for whom this actio...
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This case involves appeals by both sides from a judgment of the superior court in a writ of mandate proceeding .to review an order of the Real Estate Commissioner revoking the real estate licenses of Irving S. Tushner and Louis Harry Ragins. *74 Since 1951, Tushner has been conducting a mortgage loan brokerage business under the name of Union Mortgage Company. From 1953 to 1959 Bagins was Tus...
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This is an action to recover damages resulting from the overturning of a truck-tractor and trailers allegedly caused by a defective hub and bearing in the left front tractor wheel. The plaintiffs, respondents herein, respectively, are the administratrix of the estate of the driver who was killed in the accident, and the owner of the equipment which was damaged. The defendant, appellant herein, ...
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On November 18, 1957, plaintiff filed a tort action against the defendant doctors and defendant hospital, all of whom answered by February 21, 1958. Various discovery proceedings were instituted by the respective parties; defendant hospital moved for summary judgment, which Avas denied January 18, 1960. Thereafter additional discovery proceedings were had; pretrial was finally held October 21, ...
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219 Cal.App.2d 100 (1963) JACK C. HOFFMAN, Plaintiff and Respondent, v. ALICE E. SLOCUM, as Executrix, etc., Defendant and Appellant. Civ. No. 26328. California Court of Appeals. Second Dist., Div. Three. Aug. 7, 1963. Gilbert, Thompson & Kelly, Ernest L. Kelly and Jean Wunderlich for Defendant and Appellant. *101 Clifton A. Hix and Elizabeth Hix for Plaintiff and Respondent. FILES, J. ...
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Plaintiff brought suit against General Dynamics Corporation Convair Division (hereinafter referred to as “Convair”) to recover the purchase price of certain aircraft parts allegedly sold by plaintiff to Convair. Convair answered and cross-complained, admitting liability in the amount claimed, but alleging that it was uncertain whether that liability lay to plaintiff or to cross-defendant bank. Pu...
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Plaintiff brought action in the court below for declaratory relief, seeking a determination by the court that defendant had no right to arbitration of a claim made by defendant for $17,265.59 allegedly due under a contract between the parties, and for an injunction enjoining defendant from proceeding with arbitration. Defendant appeals from a judgment in favor of plaintiff. Plaintiff, a pr...
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Plaintiff sued defendants for moneys due for services rendered and labor and material furnished in the modification of an airplane. Defendants complain that plaintiff should be .denied recovery because, as an employee, he did not disclose to defendants that during the performance of the work he formed an independent company under the name of “ Aerexco” to which he farmed out certain of the work...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of possession of marijuana in violation of section 11530 of the Health and Safety Code. A prior felony conviction of violation of section 11500, possession of marijuana, was alleged. Defendant entered a plea of guilty and submitted the determination of the prior to the court. Thereafter, a...
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In 1954, a jury found petitioner guilty of first degree murder, two counts of assault with a deadly weapon two counts of kidnapping, possession of a concealable firearm by a convicted felon, and possession of narcotics. The jury having recommended life imprisonment on the murder conviction, he was sentenced to state prison on all counts March 8, 1954. He took no appeal. On December 21, 1962, al...
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Plaintiffs instituted two suits against the Estate of Mae R. Sharff, and others. Suit number 723066 was for breach of a written contract to make a will, and suit number P-427590 was pursuant to section 850 of the Probate Code, for specific performance of a written contract to convey real and personal property. Due to the related nature of these two actions they were tried together by the court wit...
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Plaintiff, Re-Bar Contractors, Inc., as materialman, furnished steel bars for Massie, a subcontractor for Snyder, the general contractor performing a contract for the Board of Recreation and Park Commissioners of the City of Los Angeles for the construction of a swimming pool and bathhouse on municipal property. Snyder subcontracted with Massie for the placement of the steel reinforcement bars fo...
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219 Cal.App.2d 137 (1963) MICHAEL J. HADDAD, Plaintiff and Appellant, v. ELECTRONIC PRODUCTION & DEVELOPMENT, INC., Defendant and Respondent. Civ. No. 27099. California Court of Appeals. Second Dist., Div. Four. Aug. 8, 1963. V. Lane Knight for Plaintiff and Appellant. Howard W. Hart and Edmund R. Mietus for Defendant and Respondent. BURKE, P. J. Plaintiff was a director of defendant corpo...
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219 Cal.App.2d 142 (1963) THE PEOPLE, Plaintiff and Respondent, v. JERRY F. BANHAM, Defendant and Appellant. Crim. No. 8856. California Court of Appeals. Second Dist., Div. Four. Aug. 8, 1963. Paul Augustine, Jr., under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, and William E. James, Assistant Attorney General, for Plaintiff and ...
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This action arises out of an intersection accident between two automobiles; is based on a claim for damages by a guest in one of these automobiles, and by her husband, against the driver of the other; and, on appeal, concerns alleged errors in the admission of evidence and the refusal to give proposed instructions. Many of the issues raised by the pleadings were eliminated prior to trial. The o...
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Plaintiff minor and his father sought damages for injuries suffered by the son in the collision of his bicycle and defendant’s pickup truck. Verdict was for defendant. Plaintiffs’ motion for new trial was granted on the ground of newly discovered evidence (Code Civ. Proc., § 657, subd. 4). Defendant appeals. The accident occurred between 6:45 and 7 p.m., October 15, 1959, at an unlighted inters...
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Appellant brought this action seeking cancellation of a $25,000 note and trust deed given by him as consideration for services to be performed by respondent, an architect, in connection with the construction of a building upon appellant’s property. His basic contention in the court below was that the agreement entered into between respondent and himself was unenforceable and void because responde...
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Appellant, Serena Lester, ivas named as executrix of the will of Fred Wright, the decedent, which was dated August 3, 1959. The will was admitted to probate, and appellant duly qualified as executrix following the death of decedent on June 17, 1960. Frederic Finlay, a nephew and *166legatee of decedent, filed a contest to a codicil to decedent’s will, dated June 9, 1960, on, inter alia,1 the follo...
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219 Cal. App. 2d 173 (1963) JANISE BRADY KRESS, Plaintiff and Respondent, v. FRED BRADY KRESS, Defendant; FREDERICK J. KRESS, JR., as Administrator With the Will Annexed, etc., Appellant. Civ. No. 27101. California Court of Appeals. Second Dist., Div. Two. Aug. 9, 1963. Harold B. Bernson for Appellant. Scudder & Forde and George A. Forde for Plaintiff and Respondent. No appearance for D...
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Plaintiff’s assignor paid defendants $20,400 by paying $5,100 for four successive options to purchase defendants’ controlling stock of a mining corporation and certain promissory notes owned by one of defendants, which notes were payable by the corporation. The original agreement, containing the first option, dated June 23, 1958, made time the essence of the contract and provided specifically for...
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219 Cal. App. 2d 181 (1963) MALIBOU LAKE MOUNTAIN CLUB, LTD., Plaintiff and Appellant, v. ROBERT M. ROBERTSON et al., Defendants and Respondents. Civ. No. 27010. California Court of Appeals. Second Dist., Div. Four. Aug. 9, 1963. Gold, Sturman & Gold, J. Howard Sturman and J. George Gold for Plaintiff and Appellant. Francis M. Reiter, Ellis D. Reiter and Floyd H. Norris for Defendants an...
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William Andrew Houston was found guilty by a jury of armed robbery and kidnaping. Although the defendant admits that he has been convicted of 15 other armed robberies, he contends that the jury was mistaken this time. The appellant took the stand in his own behalf and denied that he had committed the offenses charged ■ this defense was bolstered by written documents and the testimony of witne...
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Plaintiff bought a six-pack cardboard carton of “king-size” bottles of Coca-Cola at a Burlingame unit of Lucky Stores on June 29, 1959, serving herself out of an open refrigerated cooler box, and while carrying the carton of six bottles up the driveway at her daughter’s apartment several blocks away the bottom of the carton split down the folding seam lengthwise along the bottom and the bottles f...
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There are virtually two appeals to be disposed of, because the issues in each of the controversies in which the parties are engaged are quite different, so they are considered separately in this opinion. The first controversy relates to the respective interests of the parties in a building and the second to claimed broker’s commissions. For convenience, reference is made to the parties in the sin...
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This is a petition for a writ of mandate to compel the respondent court to vacate its order granting motion for change of the place of trial. The action was brought in Los Angeles County by petitioner against Oakley Ventures, a corporation, Jules Oakley, and Title Insurance & Trust Company. Motion for change of venue to Santa Barbara County was made by Oakley Ventures and Jules Oakley on t...
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Defendant appeals from judgment convicting him of three counts of forgery of fictitious name upon checks. (Pen. Code, § 470.) Proceeding according to the rules laid down in People v. Hyde, 51 Cal.2d 152, 154 [331 P.2d 42], we denied appellant’s application for appointment of counsel to represent him on appeal because we concluded after independent investigation of the record that such appoi...
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The sole issue on this appeal is whether ■the evidence supports the finding of the trial court that an easement had been extinguished by adverse use. ■ The plaintiffs, appellants herein, brought this action to restrain the defendants, the respondents herein, from interfering with the former’s use of an easement for ingress and egress over the latter’s property, which consists of two parcels. Th...
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This is an appeal from a judgment of dismissal entered pursuant to an order sustaining a general demurrer without leave to amend interposed by defendant to first amended complaint which asked for declaratory decree determining the rights and duties of the plaintiff and defendant regarding an indemnity clause contained in a written contract, and for damages. The plaintiff had engaged defend...
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Clarence Robert Philpott appeals from a judgment in favor of the defendant, Sanford R. Mitchell, Jr., in an action based upon an automobile accident which happened in Montana and caused serious and permanent injuries to the plaintiff. Both sides agree that the Montana law controls the substantive rights involved. An attempt is also made to appeal from the order denying plaintiff’s motion for a ...
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This is an appeal by plaintiff, Pearl H. Doran, from a judgment in favor of defendant, State Farm Mutual Automobile Insurance Company, after a trial before a jury, in an action to recover upon an automobile insurance policy. The Record This appeal comes before us upon an agreed statement of facts, the essentials of which are as follows: On June 1, 1957, 1 defendant insu...
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This is an appeal from a judgment entered after the trial court found in favor of defendants on their defense of res judicata. The separate defense was tried first pursuant to Code of Civil Procedure, section 597. A résumé of the essential facts is as follows: On January 3, 1958, two complaints were filed. The first complaint (Civil Number 693047 hereinafter referred to as the “047 a...
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Plaintiffs, Mr. and Mrs. Roy E. Petre, brought this action to compel specific performance of a certain agreement for the sale of real property, consisting. of escrow instructions, or for damages in the event specific performance could not be had and for a decree quieting title 'tó *290 the real property in question. Defendant Francis R. Roegner, admitted execution of the escrow agr...
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219 Cal.App.2d 294 (1963) VIRGINIA LEE RHOADES, Plaintiff and Appellant, v. W. A. SAVAGE, as Real Estate Commissioner, Defendant and Respondent. Civ. No. 26459. California Court of Appeals. Second Dist., Div. Three. Aug. 13, 1963. Kennedy & Downes, Brian J. Kennedy and Edward P. Downes for Plaintiff and Appellant. Stanley Mosk, Attorney General, and Warren J. Abbott, Deputy Attorney General,...
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Appellant holds a general on-sale liquor license for premises known as the Black Cat, located on Montgomery Street in San Francisco. An amended accusation filed before the Department of Alcoholic Beverage Control charged him, in Count I thereof, with violating section 25601 of the Business and Professions Code (keeping a disorderly house) 1 and, in Count II thereof, with violating se...
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Plaintiff appeals from an order granting defendant’s motion for restitution after reversal of a judgment in plaintiff’s favor. Defendant purchased from plaintiff the stock, trade fixtures, equipment and goodwill of a restaurant business known as “The Wheel’’ together with a lease of the premises occupied by the business; also, an on-sale general liquor license for a separate consideration ...
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The plaintiff herein appeals from the order of dismissal which was entered upon the motion of defendant and respondent. The record before us consists of (1) appellant’s complaint filed January 23, 1961, against one Jeff Chandler and seeking recovery of money allegedly due under a contract providing that appellant would perform certain services as a “Personal Manager”; (2) an answer filed by Jef...
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Defendant appeals from a conviction of murder of Marguerite M. Eggleston, the offense being fixed as second degree; also from order denying motion for new trial. Through court-appointed counsel appellant presents five claims of prejudicial error for our consideration. It is asserted that it was error to permit the autopsy surgeon to detail his “surgery” because of the “highly inflammatory” natu...
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This is an appeal by the defendant from a judgment after verdict in favor of the plaintiff, and from orders denying motions for a directed verdict and for judgment notwithstanding the verdict; and a cross-appeal by the plaintiff from an order granting the defendant’s motion for a new trial. The plaintiff brought the action to recover damages for injuries sustained when she fell while descending...
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In this action the plaintiff, appellant herein, recovered judgment against the defendant Swift, respondent herein, following a trial by jury and a verdict in her favor. Thereafter the defendant moved for a judgment notwithstanding the verdict and for a new trial. Both of these motions were granted. Plaintiff appeals from the judgment thereafter entered and from the order granting a new trial. T...
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Petitioner, Samuel Josephson, seeks a writ of mandate pursuant to section 416.3 of the Code of Civil Procedure requiring respondent court to issue an order quashing the service of summons on the ground that the court did not acquire in personam jurisdiction as the result of service of process on him outside the State of California. On June 14, 1962, an action upon a promissory note was fil...
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Defendant appeals from his conviction following a nonjury trial upon an information charging him with three counts of violation of Penal Code section 337a, subdivisions 1, 2 and 6. In substance, count I charged that on or about July 31, 1962, appellant engaged in pool-selling and bookmaking upon the results of a horse race; count II charged that on or about the same date appellant kept' and occup...
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Defendants, dissatisfied with a jury award in condemnation, appeal. They are the owners of 300-odd acres of farm land adjoining U.S. Highway 40 (Sacramento to San Francisco) on the south. Their place (hereinafter “the Lillard” place or property) is located approximately one-half mile east of Richards Boulevard, described as the “feeder” street from the highway into Davis. Prior to Oct...
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Disappointed in the amount of damages awarded them in eminent domain proceedings, particularly because the jury and the court found that the value of the special benefits far exceeded the severance damages, the defendants, John H. Edgar and his wife, Ruby Dale Edgar, appeal from a judgment for $4,236 and costs in their favor. The defendants were the owners of 19.78 acres with a frontage of 660.7 ...
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219 Cal.App.2d 389 (1963) THE PEOPLE, Plaintiff and Respondent, v. LUTHER POWELL, Defendant and Appellant. Crim. No. 8977. California Court of Appeals. Second Dist., Div. Two. Aug. 16, 1963. Hecker, Dunford & Kenealy and George L. Hecker for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Gilbert F. Nelson, Deputy Attorney General, f...
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Petitioner was holder of a restricted real estate broker’s license. (See Bus. & Prof. Code, §§ 10156.5-10156.8.) An accusation was filed with the Real Estate Commissioner charging him with three violations: (1) making misrepresentations to Mr. and Mrs. Harold Chirhart, in violation of Business and Professions Code sections 10177, subdivision (f), and 10177, subdivision (Z), * ...
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This petition for writ of mandate to direct the trial court to certify an engrossed statement on appeal arose out of the following sequence of events: Petitioner-plaintiff appealed from a judgment entered after a 26-day trial to the court without a jury. Pursuant to Rules on Appeal, rule 7(a), * plaintiff elected to proceed on a settled statement of the oral proceedings. He filed his proposed s...
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Pursuant to the provisions of section 416.3 of the Code of Civil Procedure, GMS Properties, Inc., a foreign corporation, applied to this court for a writ of mandate to require the Superior Court of Fresno County to enter an order quashing the service of summons upon petitioner in the case pending in that court entitled, “Dora B. Baray, Plaintiff, v. Globe Hoist Company, a corporation, et al.,...
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This municipal court action for a real estate broker’s commission ballooned into a broad array of cross-complaints by which the parties to the original exchange of real property claimed large damages against each other, causing transfer to the superior court. Only the last of the many pleadings is involved in this appeal. That pleading is a “counterclaim” of the Smiths, alleging that Crivello, ...
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Defendant was convicted of grand theft (Pen. Code, § 487, subd. 1). He has appealed from the judgment. This is a shoplifting case that took place at the Sears store *419 in El Monte on March 9, 1962. At approximately 8:45 p.m., Mrs. Bernhardt, a special agent for security at Sears, and Mrs. Taylor, a security trainee, observed defendant in the men’s suit department, which was located near the...
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The appellant was chárged with the violation of Penal Code section 470, in that he wilfully and unlawfully, with intent to defraud, passed a forged instrument payable to James Cox for $110.20 purportedly signed by the Best Concrete Products, Inc. by Paul Boss. He entered a plea of not guilty and at the commencement of the trial admitted two former convictions (for attempted robbery and violatio...
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Defendant Tatge appeals from conviction upon count I of a three-count information. That count charged him with having committed an abortion upon Mrs. Lee A. Wilber on June 3, 1962, a violation of Penal Code section 274. 1 Count II charged appellant Tatge and Rex Eugene Tomkins with conspiracy to commit an abortion, i.e., that on June 25,1962 they conspired with Willis J. Batson and L...
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Respondent’s demurrer to appellant’s complaint in equity to set aside judgment, was sustained without leave to amend, and this appeal is taken from the judgment which followed. Respondent Kisling, Secretary of Retail Clerks Union, Local 1288, filed an action on behalf of two former employees of appellant. At the time of the employment there was in effect a collective bargaining agreement betwee...
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Defendant appeals from a judgment entered on a jury verdict in favor of plaintiff for $18,000 and from an order denying a new trial. His motion for reduction of the verdict was also denied. The complaint is for damages for personal injuries. Defendant raised affirmative defenses of contributory negligence and assumption of risk. Viewing the evidence in the light most favorable to the plaintiff ...
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This is a proceeding to review an order of the Industrial Accident Commission which denied an application for death benefits to the widow and minor dependent children of Edward Gary Van Horn, who was killed on October 29, 1960, in an airplane crash while he was returning from Ohio to California with members of the football squad, officials and faculty of California State Polytechnic College in ...
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Petitioner seeks prohibition to restrain, the superior court from enforcing its order requiring the physical examination of Michael Block, a minor. It appears that the examination is within the scope of the statutory proceedings for perpetuation of testimony. Real party in interest, P. T. Shaver, filed in respondent court a “Petition to Perpetuate Testimony and Petition to Require Physical...
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In this action for damages for wrongful expulsion from membership in Inglewood Board of Realtors, Inc., plaintiff recovered judgment against defendant Board in the sum of $9,000, and defendant appeals therefrom. The record is in such shape as to add substantially to the burden of the court. Appellant’s opening brief says: “All points raised on appeal (including the Statement of the Case) a...
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The plaintiff sued to recover damages for her injuries sustained when she was hit by a falling ladder in a ballroom of the Pasadena Athletic Club. The room had been rented by the defendant, the operator of the club, to members of a high school class for their graduation party. At the time of the accident students were placing decorations on a wall of the room. The plaintiff was present as the P...
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219 Cal.App.2d 500 (1963) SHIRLEY LEVIE, Plaintiff and Appellant, v. GERALD J. LEVIE, Defendant and Respondent. Civ. No. 26587. California Court of Appeals. Second Dist., Div. Three. Aug. 21, 1963. David Hoffman and Marshall H. Sevin for Plaintiff and Appellant. Levie & Burkow, Burton Marks and Carl Burkow for Defendant and Respondent. SHINN, P. J. [1a] The present appeal is from an order ...
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After a hearing, respondent Board of Barber Examiners ordered a 15-day suspension of petitioner’s certificates as a registered barber and as operator of a barbershop. Basis of the order was a finding that petitioner had employed three apprentices in a single shop, in violation of section 6550 of the California Business and Professions Code. Petitioner instituted the present proceeding, seeking ...
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Appellants filed a complaint against respondent for damages for the wrongful death of their 22-year-old son who resided with them. Appellants appeal from the judgment on a general jury verdict for the respondent. The appellants’ son was killed in a one-car accident, which car was driven by the respondent, aged 21 years, in which the decedent was lying down in the seat of the station wagon ...
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This is an appeal from a judgment denying the issuance of a peremptory writ of mandate. Appellant filed a petition for a writ of mandate alleging that the decedent left a will, that petitioner is executor and that the will purported to dispose of the proceeds of the decedent’s account with the State Teachers Retirement Fund. The petition was denied, and the appellant appeals from the judgm...
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The deceased, Toros Dokoozlian, died April 27, 1961, leaving no parents or children, but leaving a wife, Angeline Dokoozlian, respondent herein, whom he had married on September 8, I960. His will dated July 2, 1958, contained specific bequests, and the residue was bequeathed to his niece and nephews, petitioners and appellants herein. No contention is made on this appeal that respondent widow was...
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Plaintiff Adolph Fisch appeals from a judgment entered upon a verdict in favor of defendants in an *539 action for personal injuries. Plaintiff was struck by the automobile of one Barnes immediately after he alighted from defendants’bus and the action is based upon the claim that defendants were negligent in failing to so operate the bus as to afford plaintiff a safe means of exit. The answer o...
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Two fingers and a portion of the palm and wrist of the left hand of an almost 15-year-old plaintiff were blown off when a toy cannon was fired by him unintentionally. The cannon had been made by the boy as a part of a manual training project. Action by the injured plaintiff against the school district and the shop training teacher-defendant, William Gebhardt, was predicated upon the theory that...
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Plaintiffs-appellants own real property in the upper foothill area of Madera County. Respondents, who are *555 both defendants and cross-complainants, own land north and south of appellants’ property, although on the south there is an intervening parcel of land lying between that of appellants and respondents, which is owned by a person named as a defendant in the original action but who has no...
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This action was filed in the municipal court. Plaintiff Landisman held $360 belonging to Mrs. Hardison. He interpleaded defendants Taliaferro, formerly husband and wife, alleging that each claimed the Hardison money. Mr. Taliaferro cross-complained for large damages, and the case was transferred to superior court. That court denied cross-complainant’s motion for entry of default of cross-defendan...
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In an indictment, six defendants (Brajevich, Darnold, Le Pave, Lenahan, Misso, and Waltreus) were accused in four counts of committing certain felonies. In count 1 they were accused of violating section 182, subdivision 1, of the Penal Code in that they conspired (1) to com *565 mit an assault upon Joseph Peskin with deadly weapons, to wit, pistols and revolvers, in violation of se...
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This is an appeal from a judgment of dismissal entered after the defendants had successfully objected to the *588 introduction of any evidence by the plaintiff on the ground that each alleged cause- of action embodied in the complaint failed to state ..facts sufficient to constitute a cause of action. 1 In ’the first cause of action it was alleged that on or about Febr...
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Defendant was convicted of violating section 11530, Health and Safety Code (possession of marijuana). He was also charged with a prior conviction for violating section 11500, Health and Safety Code. The prior conviction was found to be true. Defendant has appealed from the judgment. On August 2, 1962, at approximately 8:50 p.m., Officer Ward of the Wilshire Division of the Los Angeles Police De...
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This appeal is from an order denying a motion to quash execution and enter satisfaction of judgment in a divorce action. The question is whether the plaintiff, who paid an income tax deficiency after the divorce, was entitled to offset a part of it against the balance due defendant under the divorce judgment. The record on appeal indicates that plaintiff obtained an interlocutory judgment ...
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The suit is a derivative one by minority shareholders of Color-Pix, Inc., an Oregon corporation doing business in California. Plaintiffs appeal from a judgment dismissing the action as to defendant Bear Film Co., a dissolved California corporation, after the latter’s general demurrer to an amended complaint had been sustained without leave to amend. The amended complaint alleges that plaintiffs...
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219 Cal.App.2d 613 (1963) ALBERT I. SCHLEIMER, as Trustee, etc., Plaintiff and Respondent, v. MACK STRAHL, Defendant and Appellant. Civ. No. 6981. California Court of Appeals. Fourth Dist. Aug. 28, 1963. Sankary, Sankary & Horn and Morris Sankary for Defendant and Appellant. Charles A. Pratt for Plaintiff and Respondent. GRIFFIN, P. J. Plaintiff-respondent, Albert I. Schleimer, as trustee ...
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Plaintiff-respondent, B. L. Robinson brought this action against defendant Edward J. Fackler, doing business as El Cajon Trailer Sales and for money due on a contract against defendant and appellant Travelers Indemnity Company on a bond required under Vehicle Code sections 204 and 205, now sections 11710 and 11711. Said sections provide generally that before any dealer's license shall be issued, ...
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Nathan Boyd Holmes was indicted under the name of Spurlock, as he was then known to the police, for the unlawful sale of heroin and following his conviction in a non-jury trial we reversed (Cal.App.) 2 Cal.Rptr. 518 and the Supreme Court reversed the judgment (54 Cal.2d 442 [5 Cal.Rptr. 871, 353 P.2d 583]) upon the ground that it was not shown by the record that Holmes had personally waived trial...
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In a non jury trial the defendant was found to be guilty of grand theft. (Pen. Code, § 487, subd. 1.) Proceedings were suspended without the imposition of sentence and the defendant was placed on probation on specified terms and conditions. He has appealed from the judgment (order granting probation) and from the order denying his motion for a new trial. His sole contention is that the evidence w...
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Melvin Earl Johnson and Roddie Jamison Crooks were charged in two counts with two crimes of robbery, both offenses taking place on the same date. The victim in count I was George A. Simmons, a drugstore owner who was robbed of money and other personal property of a value of $705.30; the victim in count II was Harley Roehlk, a customer in the drugstore, from whom $5.00 was taken. Crooks withdrew h...
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Petitioners seek annulment of an award of respondent commission. Petitioners allege that by this award petitioner Empire Star Mines Company, Ltd. (hereinafter “Empire Star”) through its insurer, petitioner Pacific Employers Insurance Company, is required to bear the burden of the entire compensation payable to respondent Clyde Snell for silicosis-produced disability, although employment by Empire...
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This is an action to recover damages for the wrongful death of the plaintiffs’ son, Martin Dueñas, a 9-year-old boy, who was killed when struck by an automobile driven by the defendant, Ramon S. Domingo. Judgment, after verdict, was rendered in favor of the defendant, the respondent herein, and against the plaintiffs, the appellants herein. The plaintiffs-appellants contend that the trial ...
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This is an appeal from an order denying a petition, pursuant to section 716 of the Government Code, for permission to file a claim for damages against a county after expiration of the time specified therefor by section 715 of that code. Pertinent parts of section 716 provide: 1: The superior court of the county in which the local public entity has its principal office shall grant leav...
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Jean Marvin Powell appeals from a decree quieting plaintiff’s title to 120 acres of oil land in the Kern River Field as against an oil and gas lease originally executed in her favor by plaintiff. Of a total of 52 defendants, Mrs. Powell is the only one who has not disclaimed, defaulted or failed to appeal; she will be referred to herein as the defendant. The principal questions to be deter...
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Question Presented On this appeal from a judgment of conviction for armed robbery, and from the order denying a motion for new trial, the sole question presented is whether the trial court erred prejudically in failing to instruct the jury on circumstantial evidence. The Record The instant appeal is by Richard T. Masters (hereinafter referred to as “Masters” or “appellant”), who was cha...
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219 Cal.App.2d 682 (1963) MYRL MARLENE FAUBLE, Plaintiff and Appellant, v. ALTON LEWIS FAUBLE, Defendant and Respondent. Civ. No. 26718. California Court of Appeals. Second Dist., Div. One. Sept. 3, 1963. L. Guy Lemaster, Jr., for Plaintiff and Appellant. George A. Pickering for Defendant and Respondent. FOURT, J. This is an appeal from an order which modified a judgment of divorce with re...
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This is an appeal from a judgment of conviction on a charge of grand theft. In an indictment presented by the grand jury of Los Angeles County in February 1962 it was charged that on or about March 16, 1959, the appellant with his codefendant Freeman committed grand theft (Pen. Code, § 487, subd. 1) in that they unlawfully took money and interests in real property, the total value of which exce...
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This is an appeal from a judgment of conviction of furnishing heroin. *693 In an information filed in Los Angeles County on July 17, 1962, appellant with two eodefendants was charged with furnishing heroin on June 7, 1962. Appellant was also charged with two prior convictions, each of which involved illegal narcotics. Bach defendant pleaded not guilty and the prior convictions were denied. In...
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Plaintiff’s case was dismissed by the presiding judge of the superior court when she refused to go to trial after the court denied her motion for a further continuance. She appeals from the judgment of dismissal, and also from a denial of her motion to set aside the dismissal. *698 This action grows out of a previous malpractice case. 1 It is based on an alleged conspir...
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The relief sought by plaintiff in the present action was a decree establishing the existence of a partnership between plaintiff and defendants, Emil R. and Marian M. Broz, the equal ownership by plaintiff and said defendants of an improved parcel of real property, and for a partnership accounting. 1 Defendants denied the existence of a partnership relation with plaintiff and denied t...
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219 Cal. App. 2d 710 (1963) 33 Cal. Rptr. 544 LUCKENBACH STEAMSHIP COMPANY, INC., Plaintiff and Appellant, v. FRANCHISE TAX BOARD, Defendant and Respondent. Docket No. 10519. Court of Appeals of California, Third District. September 3, 1963. *713 John Hays, George L. Waddell, Dorr, Cooper & Hays, Hart H. Spiegel and Brobeck, Phleger & Harrison for Plaintiff and Appellant. Stanley Mosk, At...
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This is an appeal from a judgment committing Elwood Lee Warren to the Department of Mental Hygiene, for an indeterminate period, as a sexual psychopath, and from orders denying his motions (1) for a new trial in the sexual psychopathy proceedings; (2) for a copy of the transcript at the expense of the county; (3) for admission to bail pending appeal; and (4) for a stay of execution pending appeal...
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Defendants, a charter city and its officials, appeal from decree permanently enjoining enforcement of those portions of an ordinance which prohibit erection and maintenance of any sign which projects more than 24 inches from the building to which it is attached or extends more than 14 inches over a public way. Plaintiffs are merchants whose businesses have overhanging signs exceeding *734 these...
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The former opinion herein was set aside and the cause resubmitted to permit a clarification of directions for distribution in the estate of Alexander Henderson Moore in accordance with the law as applied to our interpretation of the will of the decedent. Accordingly, we adopt as part of the present opinion the following quoted portion of our former opinion herein: “All of the parties interested in...
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The plaintiff, appellant herein, brought these consolidated actions to recover compensation for services rendered as a general contractor in connection with the construction of a 100-unit cooperative apartment project owned *747 by the defendant, the respondent herein; one was upon a common count to recover the reasonable value of those services; and the other was to foreclose a ge...
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The respondent brought this action for declaratory relief seeking a declaration of his right to water flowing through a pipeline from a source known as the Church Hill Spring. The pipeline served respondent’s lands, purchased from appellant and her husband in 1953, and also serviced lands retained by appellant after the sale of a portion of her lands to respondent. The trial court found that appe...
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The People appeal from an order of dismissal of an indictment of respondent for unlawful possession of heroin and marijuana. Dismissal was on the ground that no evidence except that which had been seized illegally had been produced by the prosecution. The evidence, heroin and marijuana, was taken without a search warrant following arrest of respondent for violation of section 11556 of the Health ...
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The judgment of the trial court made and entered June 6, 1961 (guilty of selling heroin on four counts) was affirmed by this court in an opinion filed on August 6, 1962. See 206 Cal.App.2d 534 [23 Cal.Rptr. 876], No useful purpose will be served by repeating what was there said and we adopt by reference what was stated in that printed opinion excepting the last two paragraphs thereof. While the...
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The defendant in this case was charged in the Municipal Court for the Los Angeles Judicial District on March 4, 1957, with a violation of section 502 of the *768 Vehicle Code (drunk driving). The minutes of that court recite that the defendant deposited $263 cash bail on or about March 3, 1957, that on March 5, 1957, defendant was personally in court without an attorney and the cause was contin...
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Plaintiff brought an action in declaratory relief and for damages, contending that, by reason of the taking of a strip of his property for the purpose of widening a road, he had been damaged (1) by reason of the necessity of regrading his property to adjust to the lower altitude of the road and (2) by reason of the fact that the widened road interfered with the operation of an oil well on the rem...
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This is an appeal from an order denying a motion to issue an execution on a judgment pursuant to section 685 of the Code of Civil Procedure. Appeal is the proper procedure to review such order. (Kellow v. Lane (1951) 102 Cal.App.2d 821 [228 P.2d 872]; Atkinson v. Atkinson (1939) 35 Cal.App.2d 705 [96 P.2d 824]; McClelland v. Shaw (1937) 23 Cal.App.2d 107 [72 P.2d 225].) The only sta...
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Petitioner Nick Circosta seeks his release on habeas corpus on the ground that the Superior Court of the City and County of San Francisco acted in excess of its jurisdiction in adjudging him guilty of contempt of court for having violated a permanent injunction and in imposing a judgment of fine and imprisonment for such contempt. The *780 issuance of such injunction was ordered by...
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This is an appeal by defendants from a judgment entered in favor of plaintiffs in an action between joint venturers in real property. This action involves two joint ventures created by oral agreement. The first joint venture concerned a parcel of real property on Bronson Avenue in the city of Los Angeles. There was no dispute as to the existence of the Bronson Avenue joint venture or as to...
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For some time prior to October 30, 1958, Interstate Indemnity Company had been engaged in the business of writing policies of insurance covering the liability of employers under the workmen’s compensation laws of this state. On that date, because of the company’s insolvency, the Insurance Commissioner of the State of California (Commissioner) was appointed as its conservator. In order to provide i...
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Petitioner has been continuously employed by the State of California since 1954. Prom June 1955, to September 1960, petitioner was assigned to a permanent position in the State Civil Service as a Special Investigator for the Department of Employment. Sometime in March 1960, petitioner’s supervisors prepared an annual report of his performance in his position as a special investigator. This report...
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Plaintiff Perry sued defendant Schwartz for attorney’s fees for professional services rendered by plaintiff’s assignor, Attorney Lawrence Lee Light. The court, sitting without a jury, first determined the issue presented by an affirmative defense of defendant that plaintiff’s assignor was negligent in his representation of defendant in connection with the proceedings wherein such professional s...
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Defendant was insured by plaintiff under an automobile accident policy containing an uninsured motorist clause. Her contention is that, while riding as a passenger in her own car, she was injured when, without fault of the driver, he was compelled to make a sudden stop in order to avoid a collision with another automobile which had entered the highway without warning. Her claim for recovery hav...
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Is the county or the city obligated to pay the cost of detention of prisoners committed to the Los Angeles County Jail by the Municipal Court for the Los Angeles Judicial District for violations of Los Angeles city ordinances? This is the question presented in this proceeding. The superior court rendered judgment for the county and against the city in the sum of $476,194.68 for reimbursement of th...
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This is an action for declaratory relief brought by plaintiff insured against defendant insurer to determine plaintiff’s right to uninsured motorist coverage under an automobile liability insurance policy issued to plaintiff by defendant. Plaintiff appeals from a judgment in favor of defendant. The parties are in agreement on the following facts: ■ Plaintiff, having purchased an automobile...
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This is an appeal by the plaintiff, Mabel Pearl Owens, from that portion of the judgment, in an action for divorce, finding that the stock in O. C. O. Tool Company, Inc., was wholly the separate property of the husband and not community property. *857 Plaintiff and defendant were married in 1947 and lived together for approximately thirteen and a quarter years before this action for divorce w...
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On June 19, 1962, plaintiff filed an action against the City of Los Angeles and some of its police officers, designated as Does I through V, for damages caused by alleged assault, battery and false imprisonment of plaintiff by the police officers. The city demurred to the complaint upon the ground that plaintiff’s cause of action was barred by section 22.3 of the Civil Code. The demurrer was sust...
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This appeal is from a judgment in favor of plaintiff Rogers, a real estate broker, for a commission on the sale of real property, and against defendant Grua, who owned the property, and defendant Hilton, a real estate broker. The complaint alleged that defendants Grua and Hilton conspired to' prevent plaintiff from collecting a commission he had earned by arranging a sale of the Grua ranch pursua...
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The complaint is in two counts, the first being a common count for “goods sold and delivered” in the amount of $655.20, and the second being for damages in the sum of $755 for breach of contract. The prayer is for $1,410.20. Plaintiff recovered a judgment in the amount of $755 and defendant appeals therefrom. Although defendant states in his brief that the court “found for plaintiff on the firs...
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Plaintiffs obtained a' default judgment foIIowr ing the failure of defendant to appear or answer within the time prescribed by law. (Code Civ. Proc., § 407.) Defendant appeals from the judgment and from the order denying her motion to set it aside. The action is one for specific performance of a written agreement wherein appellant agreed to sell and respondents agreed to buy a house for $25,500...
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Defendant, Paul L. Parenti, appeals from a judgment of conviction for the possession of marijuana on October 31,1961, in violation of section 11530 of the Health and Safety Code. The only contentions on this appeal are that the evidence does not support the judgment and that the judgment was obtained by perjured testimony. There is no merit in either of these contentions. After proper waiver of a ...
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Two actions for property damage were consolidated for trial and on appeal. Jury verdict was for defendant in each case, and plaintiffs appeal from the judgments. Plaintiffs’ business is the raising of trout for sale. Plain *28 tiff Dufour owns the land upon which these businesses are conducted, including springs which furnish water used in Dufour’s operation as well as that of...
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Companion to case No. 26631, * this day affirmed, this appeal is from an order granting in part a motion to quash a writ of execution. We view the scant evidence available to us by way of exhibits, affidavit and deposition in a light most favorable to respondent. (Grainger v. Antoyan, 48 Cal.2d 805 [13 P.2d 848] ; Primm v. Primm, 46 Cal.2d ...
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Appeal is from judgment entered on an order dismissing an action for divorce under section 437c, Code of Civil Procedure. Affidavits filed on the motion for summary judgment disclose the following. The parties were married in 1945, and separated in 1953; on August 4, 1953, appellant wife sued for divorce (No. D455586), and on August 13, 1953, obtained a pendente lite order requiring respondent ...
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Donald Tyler Wade appealed, in propria persona, from a judgment of conviction in a jury trial of violating section 11501 of the Health and Safety Code in that on or about September 8, 1960, he did unlawfully and feloniously sell, furnish, and give away a narcotic, to wit, heroin. He was charged with a prior narcotic conviction, a misdemeanor, which he admitted. Subsequent to the filing of appel...
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Hearing has been had upon the petition and the return made by the sheriff. The record discloses that on October 19,1961, in an action for divorce entitled “Bernice Mancini v. Joseph J. Mancini” the court made an interim order imposing certain duties upon the parties. They were not to annoy or harass each other, to dispose of property or discuss their marital relations or make derogatory remarks a...
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The order for the imprisonment of petitioner was made in a divorce action in which petitioner’s husband, Joseph J. Maneini, was found in contempt and sentenced by order which has this day been annulled in 2d Crim. No. 8742. [Ante, p. 54.] By order of October 19, 1961, petitioner was awarded custody of the minor child, a 12-year-old boy. Both parties were restrained from annoying, harassing or mole...
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The farm of defendant Thomas H. Reed consists of a 137-aere parcel on the west bank of the Sacramento River approximately 26 miles north of Colusa. Adjoining it to the south is the farm of defendant Frank S. Reager, approximately 463 acres in area. The State Reclamation Board filed this condemnation action to acquire a right of way for a new levee across these properties, the levee being a port...
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This is an appeal from an interlocutory decree of divorce. By plaintiff’s complaint, the court was requested to grant her a decree of separate maintenance. After denial of the defendant-husband’s motion for a change of venue, he filed his verified answer and cross-complaint for divorce on the ground of mental cruelty. The court denied plaintiff relief on her complaint for separate maintenance and ...
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The City of Santa Clara appeals from that portion of a judgment entered in favor of the respondent in a personal injury action holding that the respondent’s claim was legally sufficient pursuant to section 53052 of the Government Code. The contentions on appeal are that the trial court erred in ruling that the respondent’s claim was properly verified and that the city was estopped from denying ...
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This is an appeal from an order of the superior court, made pursuant to section 1281.2 of the Code of Civil Procedure, granting a request of a labor union for arbitration of a dispute concerning the discharge of two employees. Contending that the matter thus submitted to arbitration was not arbitrable under the collective bargaining agreement between the parties, the employer has appealed. ...
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In the interest of securing uniformity of decision and settling important questions of law the instant case was certified by the Appellate Department of the Superior Court for the County of Los Angeles, on its own motion, after decision, to this court. We ordered it transferred for hearing and further decision. (Cal. Rules of Court, rules 62 and 63.) * The ease arises out of the fraud of defe...
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Plaintiff appeals from judgment in favor of defendants after order sustaining general and special demurrer without leave to amend. Question Presented Is a real estate “listing” agreement which provides that the sale price of the real property is to be determined by seller valid? Record Plaintiff sued for damages for breach of contract. The complaint alleged that plaintiff is a real estate...
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Defendant wife appeals from the interlocutory judgment of divorce awarded plaintiff husband, and from the order denying her motion made under Code of Civil Procedure, sections 663 and 663a, to set aside the judgment and enter a different judgment. The interlocutory judgment was granted on the ground of extreme cruelty and also gave physical custody of the 5-year-old daughter to the husband. All re...
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Sometime in the fall of 1960, plaintiff Tost entered into an arrangement with Jack Weiner, (doing business as Jack Weiner Auto Sales) whereby, in consideration of the appearance by plaintiff on a television program advertising Cadillac Motor Car Division products, Weiner agreed to ‘ ‘ deliver to plaintiff through an authorized Cadillac dealer” a 1961 Cadillac for the sum of $5,418. Plaintiff acce...
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This action, by the widow of William Robinson, involves the determination of whether or not decedent had coverage under a group life insurance policy issued by defendant. Plaintiff prosecutes this appeal following a trial by jury in which she was denied recovery. A motion for judgment notwithstanding the verdict or in the alternative for a new trial was denied. For some time prior to his d...
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In this tort action a motion by defendant county for judgment on the pleadings was granted by the court. The second amended complaint alleges that defendant county through its agents, officers and employees negligently permitted a juvenile delinquent and ward of the juvenile court to be placed for board and lodging with plaintiff who operated a foster home; that they knew said ward had dangerous p...
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Plaintiff appeals from judgment on jury. verdict in favor of defendants. Question Presented Was there evidence to justify the giving of an instruction on contributory negligence I 1 Evidence About 7 a.m., December 31, 1960, plaintiff was a guest passenger in a ear driven by her cousin, Fred Williams, in a southerly direction on Nimitz Freeway, Oakland. The morning was still dark and it ...
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Plaintiff appeals from a judgment entered upon an adverse jury verdict in a personal injury action arising out of an intersection collision between her automobile and defendant’s automobile. The facts will be stated in the light most favorable to respondent. *130 The accident occurred on January 8, 1960, about 2:30 p.m. at Fremont Street and Fifth Avenue, in San Mateo. Both streets are approx...
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Plaintiff appeals from a judgment of dismissal which was rendered after he elected not to amend his complaint, following the sustaining of a general demurrer thereto. The complaint alleged facts which are summarized as follows: On April 22, 1960, plaintiff executed and delivered to the Bank of America his promissory note for $13,133.19, and as security therefor, he executed a deed of trust...
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This is an appeal from a judgment awarding respondent a divorce, and granting to her $225,000 cash, together with a residence of the value of $60,000 as her share of the community property. Appellant and respondent were married in 1940. At marriage appellant had $59,538.50 which he inherited from his mother. In 1948 appellant received $283,287.57 by inheritance, and in 1955 he received an addit...
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This is an appeal from a judgment which forfeited an automobile to the State of California as to its registered coowners, Victor and Mary Sabino, subject to a lien in favor of the legal owner, Automobile Club of Southern California. Trial was by the court. The registered coowners appeal. The facts are as follows: During the early morning hours of September 18, 1961, Officers Edward Br...
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Sovereign immunity from civil liability for torts committed by a public entity is involved in this appeal. The Supreme Court, in Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457], abolished the doctrine of governmental immunity in this state for torts for which its agents are liable. As a result of such decision, and because of its ...
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In this personal injury ease, plaintiffs are Sam Bradford, a minor, by his guardian ad litem, Kay Ghilardi (his mother), Werner A. Ghilardi, Kay’s husband and stepfather of the boy, for both the boy and his stepfather were injured, and Kay Ghilardi in her own right, claiming the reasonable value of nursing care given to her son. The sole defendant is Eugenia Edmands. The jury awarded plaintif...
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Convicted of auto theft (Veh. Code, § 10851) defendant appeals. Robert Johnson testified at the preliminary examination that: he lived in Minnesota, and owned a ear whose Minnesota license number he gave; he parked the car on a Richmond street and locked it; it was gone when he returned; he gave no one permission to take it; and the car recovered by the police was his. After impanelment of th...
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This is an appeal by defendant from a judgment quieting title to certain real property and awarding to plaintiff a recovery of oil royalties which had been received by defendant while purporting to be the owner of the property. Plaintiff and defendant are sisters. The trial court made findings of fact to the following effect: Plaintiff, Ethel DaSilva, had owned the property since 1943. In 1947 sh...
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Defendant appeals from a conviction, after court trial, of possession of narcotics in violation of section 11500 of the Health and Safety Code. This record shows that in the early afternoon of October 17, 1961, two Los Angeles police officers observed defendant leave a residence located at 603 Marine Way which they, in the course of a narcotics investigation, had placed under surveillance. As h...
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After a preliminary hearing an information was filed containing three counts charging defendant with violation of Penal Code, section 337a, subdivisions 1 (bookmaking), 3 (receiving money wagered on a horse race), and 4 (recording a wager). Defendant moved under Penal Code, section 995, to set aside the information upon the ground that he had been committed without probable cause. The motion wa...
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Plaintiffs appeal from a judgment in favor of defendants, entered on a jury verdict in their favor, in an action for wrongful death. Plaintiffs’ son was killed when an automobile driven by him was struck broadside by a heavily loaded truck and semitrailer unit owned by defendant Upson and operated by defendant Garland. The case was submitted to the jury on instructions (not here attacked) which...
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This is an appeal from a judgment in favor of the defendant, Davis Realty Company, a corporation, in an action for damages for personal injuries. Statement of the Case On April 4,1957, Mrs. Jane Gipson, who was pregnant with child, was being transported by ambulance to the Stanford Hospital where her child was to be delivered. A collision between the ambulance and an automobile ow...
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Defendant appeals from judgment in favor of plaintiff in the sum of $5,166.78. Questions Presented 1. When does the har of section 338, subdivision 1, Code of Civil Procedure, commence to run in this character of action ? 2. Was due process of law violated as to defendant by the proceeding before the Industrial Accident Commission between plaintiff and Highway Patrolman Ha...
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Plaintiffs Plorian and Edith Dauenhauer brought this action against defendants Carl Sullivan, Arthur B. Siri, Inc., James Capíes, and Peter Onsrud, to recover for damage to their property resulting from earth movements allegedly caused by the negligent excavation of dirt from property owned by defendants Sullivan and Onsrud. Plaintiffs prosecute this appeal from a verdict and judgment awarding th...
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Plaintiff appeals from a judgment in favor of defendants in an action for personal injuries. While plaintiff, a man of limited education, was a passenger in a taxicab owned by defendant Yellow Cab Company and driven by defendant Hanna, the cab was involved in a collision with an automobile driven by defendant Carter. In addition to other defenses, defendants duly pleaded a release executed by plai...
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Plaintiff Sandra Lynn Sampson, a minor aged 20 months at the time of the accident, and her father sued for damages resulting from an accident in which the minor plaintiff was hit, while crossing a public street, by a car owned by defendant Albert Fetta and driven by defendant John Walter Fetta. The firm rule is that, on appeal, evidence should be viewed most favorably to the respondent. However, e...
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An English corporation, James R. Twiss, Ltd., petitions this court for a writ of mandate to compel the superior court to quash service of summons and complaint for lack of jurisdiction on the ground that petitioner “is not and was never doing business ’ ’ within the State of California. Plaintiff, a longshoreman, charging petitioner with negligence in failure to provide a safe place of emp...
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This is an action by plaintiff-appellant for personal injuries and property damage arising out of a vehicle collision at an intersection. Plaintiff-appellant Ronald Harry Bristol alleged that defendant-respondent Eiliene Bernice Bryan negligently operated her car and that defendant City of Fullerton negligently maintained the public highways and the public property where the accident occurred. Def...
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Deceased, Walter Ransom (Sr.), was the father or grandfather of various plaintiffs-appellants, namely, Walter D. Ransom (Jr.), Judith Miller, David Rich and Lee Hancock, by his first marriage. At the time of his death in 1947, Walter Ransom, Sr., had been married to defendant and *260 respondent Marian Smith Ransom since 1941. She was appointed administratrix of his estate. On July...
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The plaintiff and defendant are husband and wife, respectively. Preliminary to the institution of a divorce action by the former against the latter, the parties conferred about the same; discussed a division of their property ; agreed upon the terms of a property settlement agreement ; and also agreed upon a provision for the payment of alimony. Thereafter, a complaint was filed; the defendant mad...
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On February 15, 1958, Western Desert, Inc., respondent and appellant herein (hereinafter referred to as appellant), and Palm Springs Homes, Inc., petitioner and respondent (hereinafter referred to as respondent) entered into a written agreement which was attached to the application for an order confirming the award of the arbitrators and marked exhibit “A.” Paragraph 20 thereof provided that al...
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Plaintiff-appellant, on an assigned promissory note for collection from one Daniel Jay, brought this action on the note signed by defendants-respondents Roeco De Fillipes (hereinafter referred to as Roeco) and Joe De Fillipes for $3,500. It was dated February 4, 1957, and was payable $75 per month, plus 6 per cent interest beginning March 4, 1957. The note provided that if interest was not paid wh...
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The People appeal from a judgment *293refusing to forfeit a vehicle to the State of California, under Health and Safety Code, section 11610, pertaining to the use of a car to unlawfully transport or to facilitate the unlawful transportation of a narcotic by an occupant thereof. In the answer filed by Veronica Maldonado, wife of Louis Maldonado who was the occupant and driver of said car, it is all...
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Plaintiff, as assignee of the law firm of Guerin & Guerin, filed this action against defendant to recover attorneys’ fees, court costs and miscellaneous fees advanced in a number of legal matters which that firm had handled for defendant, and also sought to foreclose a lien on certain real property which was alleged to have been given as security for the payment of said fees and advances. Defen...
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Appeals by Margaret Lloyd, mother of Walter Carroll McGowan, a person under 21 years of age, from orders of the Superior Court of San Luis Obispo County sitting as a juvenile court. The first order appealed from was entered February 8, 1961, following the hearing on February 3, 1961. This order accepted a transfer of the proceeding from the County of Santa Barbara and directed that the minor resid...
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On December 20, 1954, Catherine Kenny, as assignee of Morse Erskine, Morse Erskine IT, and J. B. Tulley, lawyers and copartners, commenced an action to recover reasonable compensation for legal services rendered by them to defendants Trust Oil Company, Treasure Company, Samarkand Oil Company, and Empire Oil Company. At the first trial a judgment of nonsuit was granted in favor of defendants with t...
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William A. Clark, respondent, an employee of the City of Los Angeles, in support of his application for benefits under the workmen’s compensation laws, filed with the respondent, Industrial Accident Commission, a medical report of examination made by respondent, Dr. Robert A. Roback. The report was accompanied by a bill in the amount of $95 and claim for lien in behalf of Dr. Roback against any aw...
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Accused of the sale of marijuana Paz G. Gomez was convicted in a jury trial and was sentenced to state prison. He appeals from the judgment. The points on appeal are (1) insufficiency of the evidence; (2) unwarranted limitation of the cross-examination of a witness for the People; (3) improper receipt of evidence of the People in rebuttal; and (4) failure of the court to instruct of its own motion...
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Petitioners (plaintiffs below) seek a writ of mandate to compel respondent court to set aside its ordér sustaining the objections of the real parties in interest (defendants Lowe) to certain requests for admissions made by petitioners. The action below is one for an injunction and for damages alleged to have been caused to the property of plaintiffs as a result of a landslide occurring on Febru...
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These appeals stem from an automobile accident which occurred June 13, 1959. Opal Gwyndola Middleton was the driver of a ear in which Helen Schnipper, Katherine Calori, and Thelma Pederson were passengers. Everyone in the ear was injured when the car struck a concrete wall, the driver so badly she died the same day. On June 8, 1960, in the Superior Court of Alameda County, the passengers sued the ...
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Joseph F. Fargo, doing business as Main Liquor & Wine Depot, appeals from “Order Approving, Settling and Allowing Report and Second Account Current of Receiver [R. E. Allen], and Instructing Receiver on Claims, etc.” Respondent Allen is general receiver of the assets of Cole’s Check Service, Inc., and Fargo’s contention on appeal is that his claim to payment out of the receivership assets was erro...
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Plaintiff appeals from order denying her motion to vacate order modifying a previous custody order concerning the child of the parties to this divorce action. The appeal is based upon the fact that the order was made by Otho G. Lord, a commissioner of the superior court, sitting as judge pro tempore, and the further fact that the parties did not stipulate to his so acting. The record is sketchy...
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Convicted of second degree murder after a nonjury trial defendant appeals from the judgment. His counsel raises two points—insufficiency of the evidence “to sustain the verdict and judgment” and a claim that the crime, if any, was manslaughter and this court should reduce the offense accordingly. In support of his first point counsel makes no attempt to comply with the cardinal rule of appellat...
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Defendant Carroll appeals from the judgment of conviction entered against him following a nonjury trial upon an information in two counts charging him with the crime of assault with a deadly weapon in violation of section 245 of the Penal Code. In seeking a reversal, appellant contends: (1) that the evidence was insufficient to support the convictions; and (2) that he “was denied due process by th...
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The judgment in this action declares that the plaintiff Malibu Water Company is the owner of all water under any portion of defendants’ property and enjoins defendants forever from maintaining any well on the premises or extracting any water. Defendants have appealed from the judgment. Both the water company and defendants base their claim upon a conveyance from a common predecessor, the plaintiff...
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This is an appeal fom a judgment for the defendants in an action for personal injuries arising out of a collision of automotive vehicles. The sole ground of appeal is an alleged irregularity in the proceedings after the jury retired for their deliberations and returned into court with a request to hear certain testimony reread. Appellant claims that the trial judge failed to comply fully with the...
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Clara A. Correia sued her husband for separate maintenance. lie in turn filed a cross-complaint for *370divorce. After trial the court determined that the plaintiff was entitled to judgment against defendant for separate maintenance on the ground of extreme cruelty but did not award a divorce to appellant on his cross-complaint. The defendant and cross-complainant appeals, contending that the comp...
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The defendant, Ralph Leonard Pilgrim, was charged with a violation of section 288 of the Penal Code; it was alleged that he “. . . did wilfully, unlawfully, feloniously and lewdly commit a lewd and lascivious act upon and with the body, members and private parts thereof of Margaret Ann Pilgrim, who was then and there a child under the age of fourteen years, to wit, of the age of six years, ...” I...
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Plaintiff appeals from summary judgment (Code Civ. Proc., § 437c). The question is whether the oral agreement sued upon is within the statute of frauds because by its terms it “is not to be performed within a year from the making thereof” (Civ. Code, § 1624, subd. 1). The complaint alleges that in July 1960 the parties orally agreed that plaintiff should be the west coast factory rep*382resentativ...
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This appeal is taken from a judgment rendered pursuant to stipulation against (1) the defendant Business Files Institute, Inc., upon certain promissory notes which it had executed and delivered, and (2) against the defendants Hilliard, Hcdden and Creative Management Corpo *385 ration, upon the theory that each of the latter was the alter ego of the defendant Business Fil...
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Defendant was convicted of burglary (Pen. Code, § 459) in the second degree. He has appealed from the judgment. 1 *402 On August 4,1960, Deputy Sheriff Foreman of the Sheriff’s Firestone Station was called to 5000 Bast Clara Street in the City of Bell to investigate a suspected burglary of the previous night. This was the location of a business establishment known as Uncle Fred’s Swap Shop ...
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Petitioner, being then imprisoned in the federal penitentiary at McNeil Island, Washington, petitioned this court for a writ to compel respondent municipal court to dismiss a criminal proceeding then pending against him in that court. The petition alleged petitioner’s federal incarceration; that a complaint, charging two counts of forgery, a felony, had been filed against him in respondent court b...
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The plaintiff, respondent herein, was injured in the course of his employment as a structural iron worker; fell from a position 15 feet above the ground when the horizontal steel beams of a building then under construction shifted; and was impaled on a reinforcing rod which extended vertically above the concrete foundation below the area where he was working. He was employed by a subcontractor, vi...
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The plaintiff, Georgia Gail Palmer, 1 brought an action in the trial court against Financial Indemnity Company, a corporation, 2 alleging bad faith based upon a refusal to settle a personal injury and property damage insurance claim. Financial cross-complained against Palmer and Traders & General Insurance Co., a corporation, 3 the insurance carrier for Palmer, ...
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This is an action to recover money allegedly obtained by defendant Thomas N. Bistline by undue influence and fraud; to recover money received by defendant Carol D. Bistline with knowledge of said alleged wrongful acts; and to impose a constructive trust upon money and other property so obtained by defendants. In a non jury trial, the judgment provided: (1) that defendant Thomas N. Bistline...
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Plaintiff Thomas W. Bradford appeals from the judgment in favor of defendant Benjamin Winter, rendered by the trial court sitting without a jury. Plaintiff’s causes of action are based on alleged malpractice and battery. Viewing the evidence in the manner most favorable to respondent, as we are required to do (Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429 [45 P.2d 183]; Estate of Arstei...
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The parties to this suit were married shortly over a year when plaintiff husband sued his wife for divorce on the ground of extreme cruelty. The defendant, through her guardian ad litem, answered with a denial, and alleged insanity and waiver as affirmative defenses. Defendant did not file a cross-complaint. The parties had no children as a result of their marriage. Evidence supporting plaintiff’s...
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Plaintiff was injured as a result of tripping and falling on a public sidewalk. A jury returned an award of damages against defendant City of Los Angeles. The Public Liability Act of 1923, contained in California Government Code sections 53050 et seq., imposes upon a city liability for injuries to persons or property resulting from a “dangerous or defective condition of public property,” i...
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Plaintiff County of Colusa and defendant Strain filed an “agreed ease’’ under the provisions of section 1138, Code of Civil Procedure. According to the *476 agreed facts, the county has adopted Ordinance Number 265, requiring a permit for the leveling of land having an area greater than 5 acres. Defendant Strain was aware of the ordinance but refused to comply with it. In July 1959...
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Plaintiff, a creditor o£ Bainhridge, had in its possession a used forklift, or forklift tractor, which Bainhridge had consigned to it for sale. Plaintiff brought suit against Bainbridge and on September 16, 1959, levied an attachment on the forklift. After a default judgment plaintiff on January 25, 1960, levied execution on the forklift. Robert Coyle then filed a third party claim, asserting h...
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The instant appeals are from judgments directing issuance of writs of mandate in two proceedings, which were consolidated for trial, seeking a review of an order of the Alcoholic Beverage Control Appeals Board, one of the appellants herein, which set aside an order of the Department of Alcoholic Beverage Control, one of the respondents on appeal, granting the transfer of an *492on-sale liquor lice...
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Plaintiffs Rigolfi and Rosi commenced an action on September 3, 1959, for an accounting and to impress a trust against their partners in a flower business, Brunetti and Domilla. A few months before the suit was started, another partner, Stef ano Costa, had died and Bank of America had been appointed executor of his will. His widow demanded that the bank join as party plaintiff, but it refused a...
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Since prior to 1935, Borun Bros., a corporation, has been a holder of a beer and wine wholesaler’s license and a beer and wine importer’s license. Since 1956, Thrifty Drug Stores, Inc., a corporation, has been a holder of off-sale general licenses and off-sale beer and wine licenses. In 1956, the intervener herein filed an accusation, with the Department of Alcoholic Beverage Control, against Boru...
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This is an action by a former employee of defendant corporations, McMahan’s of Torrance and McMahan’s of Vista, to recover compensation for overtime services and for vacation periods. He also sought to recover a bonus, under an oral contract, and penalties under section 203 of the Labor Code (failure to pay wages immediately). In a cross-complaint McMahan’s of Torrance sought to recover from plain...
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This is an appeal from a judgment of conviction of a violation of Vehicle Code section 20001 (hit-and-run driving). In an information filed in Los Angeles County July 20, 1962, the defendant was charged with driving an automobile which struck Jose Augustine Lewis and resulted in injury to such person, further with failing to stop and to give to Jose Lewis, or to any police officer at the scene of ...
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Appellant Myrtle Robertson appeals from *531the judgment entered following a non jury trial wherein she was awarded a divorce on the ground of desertion. The judgment also awarded the husband a divorce on the ground of extreme cruelty. The bulk of the property owned by the parties had been placed in joint tenancy under an earlier property settlement agreement. This property" was not involved in th...
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Plaintiff Agnes Bailey brought this action to recover damages for personal injuries sustained while working as a domestic on the premises of defendants Clifford and Gladys Simpson. The complaint alleged the negligent failure of the Simpsons to provide her with proper tools and a safe place to work. Defendants’ answer denied any negligence, and raised the defenses of contributory negligence and ...
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Appeal No. 8616 Defendant was charged with: (1) burglary, in that on April 21, 1962, he unlawfully entered the room occupied by Casenia Dixon with intent to commit theft; (2) a second count of burglary in that he unlawfully entered the apartment occupied by Iva B. Burkholder with intent to commit theft and rape; and (3) rape, in violation of section 261, subdivision 3, Penal Code, committed o...
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This is an appeal from a judgment of conviction of three counts of selling heroin. In an indictment filed November 29, 1961, in Los Angeles County, defendant was charged with selling heroin on August 1, 1961, August 2, 1961, and August 11, 1961. It was further set forth that defendant previously had been convicted of an offense involving narcotics. Defendant pleaded not guilty and denied the prior...
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By their appeal from the judgment denying their petition to adopt the minor child here involved, appellants present for our determination the narrow question whether the consent of the natural father is required in an adoption proceeding involving a child which has been legitimatized by the natural father in conformity with the provisions of sections 215 and 230 1 of the Civil Code. The briefs bef...
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Defendant, together with James E. Glenn and Amuel O’Neal Miles, was tried by a jury and found guilty of violating Penal Code section 337a, subdivisions 1-4 and 6, relating to bookmaking. After defendant’s motion for new trial was denied, judgment was imposed on one count only of ten counts on which defendant was declared guilty; defendant was granted five years’ probation conditioned upon serving ...
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This is an appeal by the defendant from a judgment in favor of the plaintiff in a personal injury action. Question Presented The sole question presented on appeal is whether the finding in a proceeding before the Industrial Accident Commission that an applicant did not receive certain injuries in a particular accident is res judicata in a subsequent superior court action for damages f...
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Each party to this divorce action was granted interlocutory decree on the ground of the other’s extreme cruelty. During their two-year marriage, the parties purchased a home in San Francisco. Each paid half the downpayment from separate property. They jointly executed two installment notes secured by deeds of trust, for the purchase price balance. Payments of $110 and $24.50 per month were requir...
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This is an appeal from a judgment obtained by respondents on their cross-complaint, quieting their title to personal property and awarding them $2,959.98 due after an accounting. Appellant brought the action initially to quiet her title to personal property in her possession, which she claimed to have received from Martial Davoust as a gift causa mortis. The trial court found that if in fact the p...
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For his conviction of grand theft from the person (Pen. Code § 487 subd. 2) the court, on September 15, 1959, suspended proceedings and granted defendant probation for five years on the condition, among others, that he spend the first six months in the county jail. Prior to the expiration of the term the order was modified to effect his release. Thereafter, defendant deserted probation and for hi...
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Defendant owned two lots, located on Ventura Boulevard, in Sherman Oaks, California. One lot was fully improved with an eight-unit motel. The other lot was largely vacant, although a four-unit apartment was located on the rear portion of the lot. The parties referred in testimony to this second lot as the “vacant” lot and we adopt their terminology. On February 9, 1960, in response to a ne...
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This is an appeal from a judgment of dismissal after the sustaining of a demurrer to the complaint. Questions Presented 1. Does the complaint state a cause of action? 2. Does the failure of the trial court to state in its decision the ground or grounds for sustaining demurrer constitute prejudicial error? *630 The Record The plaintiff’s complaint alleged as follows: that defendant h...
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Plaintiff appealed from an “Order and Judgment” of the Superior Court of San Mateo County which denied the motion of plaintiff, Rena J. King, to vacate and set aside the interlocutory decree of divorce granted by said court on the 20th day of October 1961, and refused to vacate and set aside the property settlement agreement of the parties, dated the 3d day of October 1961, and incorporated in sai...
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Plaintiff sued defendants, sheriff’s deputies, for false arrest and imprisonment alleging wrongful arrest without a warrant on suspicion of burglary; defendants claim they had probable cause to arrest plaintiff. The matter was heard before a jury; at the end of plaintiff’s ease the lower court granted defendants ’ motion for nonsuit. Appeal is from the order. While plaintiff has seen fit t...
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Plaintiff sought recovery of the balance assertedly due on an oral agreement to render personal services over a four-year period as an employee of, and in association with, the defendant in the practice of medicine. Both parties are medical doctors. The trial court found against the claim that the agreement was within the statute of frauds and unenforceable because by its terms it was impossibl...
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Rowena Anderson appeals from a judgment quieting title to certain real property located in Yolo County in Alice Snavely. The property was originally owned by Charles Taylor Bid-well and distributed in his estate to his wife, Florence Swain Bidwell, the mother of respondent Alice Snavely and the grandmother of appellant Rowena Anderson. The property involved is located in the northwest quarter of s...
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This action arises out of transactions incident to a sale of real property. The plaintiff, who is the appellant herein, was the seller. The defendants, who are the respondents herein, were the buyer, the escrow holder, and a loaning institution which made a loan to the buyer secured by a first deed of trust upon the subject property. The issues presented to the trial court were raised and defin...
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Respondent Jackson was formerly a partner with respondents Donovan and Shada doing business as the Valley Green Stamp Company. Jackson, having advanced to this company $3,000, withdrew from the partnership and disposed of his interest to Donovan and Shada and Zarcone, which three then formed a new partnership. The new partnership and the three partners thereof on August 28, 1959, executed a not...
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Plaintiff appeals from judgment based on order granting summary judgment. Question Presented Was any triable issue of fact presented ? Record Plaintiff’s complaint alleges that he is an attorney at law, and that within two years preceding the commencement of *696 the action defendants became indebted to him in the sum of $20,000 as the reasonable value of servic...
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This is an appeal by John E. Crooks and George W. Creveling, who, as defendants and cross-defendants, have had judgment rendered against them for various amounts on at least six different theories. We have concluded that the judgment should be affirmed. A brief sketch of the plot forming the background of the case may contribute to an understanding of the problems presented by the appeal. ...
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The facts of this case are simple. However, the point of law involved is both unique and challenging. Petitioner is one of several defendants in a wrongful death action filed by the decedent's widow on August 17, 1959. The original complaint designated the widow as the only plaintiff; however, it alleged that she was proceeding individually and on behalf of her minor son “as his natu...
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Evan K. Harrison has appealed from an order of the Superior Court of Placer County sitting as a juvenile court dismissing a petition to declare Victoria Harrison, also known as Victoria Ivarsson, a minor, a ward of the juvenile court. Victoria Ivarsson, the minor, is the daughter of Edward Harrison, deceased, and Julie Vance Ivarsson. After Edward Harrison’s death Julie married Karl Ivarss...
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This is an appeal by Cyril Saunders from a judgment awarding respondent $14,000 plus interest and costs, on a common count for money had and received. Appellant, an attorney at law, organized the respondent corporation February 9, 1960, and was its counsel. At time of organization there were three directors. On February 13, 1960, the board of directors was increased from three to seven. Appella...
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Two appeals are presented here upon a single reporter’s transcript; one is taken from conviction of four counts of violation of section 26104, subdivision (a), Corporations Code, 1 and from order denying new trial (our *737 No. 2nd Crim. 8298]; the other from order revoking probation which had been granted in another case after plea of guilty of violation of said section...
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Defendant appeals from the judgment of conviction wherein he was found guilty of the crime of abortion in violation of section 274 Penal Code, and also of the crime of attempted abortion. In addition, he was found to have come within the terms of section 12022 of the Penal Code in that he was armed with a .38 caliber revolver at the time of the commission of the attempted abortion.1 *756Appellant’...
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Plaintiff commenced an action against defendant to recover damages for injuries resulting from an automobile accident. Defendant in his answer pleaded contributory negligence on the part of plaintiff. The jury rendered a verdict in favor of defendant and plaintiff has appealed from the judgment entered on the verdict. Appellant’s main contentions involve the sufficiency of the evidence and asse...
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Appellant Coomes, a civil service psychiatric technician at Camarillo State Hospital, became involved in a struggle with a patient named Osborne. Two other psychiatric technicians, Havener and Miles, were also participants. All three employees were dismissed. The dismissal notices alleged that the respective employees “did physically beat and did assist in physically beating” Osborne. The three e...
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George and Martha Seaeh, husband and wife, charged in two counts of (1) attempt to commit burglary and (2) conspiracy to commit burglary, were convicted of the attempt after a jury trial. Their motion for new trial was denied. Martha was granted probation. George was sentenced to state prison. Both appeal. Their principal contention is that the evidence is insufficient to support the verdict. We ...
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This ease presents, at first glance, a singular aspect, because plaintiffs, husband and wife, protected by seat belts, were seated in a vehicle waiting behind another vehicle for a red light to change, when their car was rear-ended by defendant’s vehicle, and plaintiff wife developed a herniated disk which the two doctors called by the defense said was related to the accident (they were uncertain...
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Asserting that he was beaten by a cellmate in jail, plaintiff seeks damages for serious injuries allegedly suffered. Joined as defendants with the fellow prisoner are a number of officials of the City and County of San Francisco. Demurrers of defendants Christopher and Cahill, the mayor and deputy chief of police, were sustained without leave to amend. Judgment followed, and plaintiff appeals. ...
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Plaintiff appeals from judgment of dismissal. Question Presented In an action for alleged legal malpractice, when does the statute of limitations commence to run ? *827 Record December 30, 1960, plaintiff filed a complaint against defendant attorney for malpractice. The complaint alleged that on or about February 8, 1956, plaintiff employed defendant to advise him with regard to “the pu...
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Plaintiff appeals from a judgment of dismissal entered after the sustaining without leave to amend of the demurrer of the defendant Charles Reagh to plaintiff’s complaint and amendments thereto. Plaintiff appears here, as he did below, in propria persona. The original complaint filed October 24, 1961, entitled “Complaint For False and Malicious Imprisonment; Claim and Delivery; and Damages...
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In an information filed by the district attorney, appellant Dave Stradwick was charged with the murder of Jimmie L. McCowen. In a jury trial, the appellant who was represented by counsel, was found guilty of murder in the second degree. His motion for a new trial and probation having been denied, he was sentenced to the state prison. Defendant substituted himself as his own attorney and appeals. H...
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This is an appeal by plaintiff from a judgment of dismissal following an order sustaining a demurrer to plaintiff’s complaint without leave to amend. Plaintiff’s complaint alleged that at all times referred to therein he was the owner and operator of a bar and restaurant business and that the defendant had issued to him a policy of insurance commonly known as an 1 ‘ Owners, Landlords and Tenants L...
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Plaintiff appeals from a judgment in favor of defendant. Questions Presented 1. Did plaintiff fail to exhaust his administrative remedies? 2. Did defendant waive the requirement of appeal? 3. Did the complaint state a cause of action for breach of contract ? Record The evidence is not in conflict as to the facts. The action is for damages for breach of an alleged o...
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This is a proceeding to review an order of the trial court holding petitioner in contempt for disobedience of certain provisions of a final judgment of divorce. The principal question for our determination is whether the court below had jurisdiction in the first place to make the underlying divorce order now sought to be enforced by contempt. We have concluded that it did not. For convenience w...
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The taxpayer here appeals from a summary judgment in favor of the County of Marin and the City of Sausalito, denying the appellant’s request for the refund of taxes paid under protest. Appellant argues that the trial court erred in granting a summary judgment and that the instant case is distinguishable from Alberts v. Board of Supervisors, 193 Cal.App.2d 225 [14 Cal.Rptr. 72]. The facts ar...
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Both parties were granted an interlocutory judgment of divorce from the other on the ground of extreme cruelty. Defendant-wife appeals therefrom, contending (1) that the evidence is insufficient to support the finding that she had treated the plaintiff-husband with extreme cruelty, (2) that the trial court abused its discretion in denying further attorney fees to her, (3) that it was error to fin...
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Defendant Magda Booker appeals from an order modifying a child support award from $50 to $10 per month. On September 27, 1949, plaintiff Jerry Booker and defendant entered into a written agreement for the purpose of settling their property rights and providing for the support and maintenance of their minor child. The first six paragraphs of this agreement provided for the division of the various a...
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In this heirship proceeding petitioner-appellant, Beverly Duffill Merrill, seeks to establish that she is an heir of her paternal grandmother, Martha J. Garey, who died testate in 1960. Petitioner claims to be a pretermitted heir. Petitioner’s mother divorced her natural father in 1931, and married Gregor Merrill in 1933. The natural father, a son of the decedent, died in 1934. Gregor Merrill adop...
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Appellant Jack Finston appeals from a judgment entered following a nonjury trial convicting him of four counts of forgery in violation of section 470 of the Penal Code and one count charging him with grand theft in violation of section 487 subdivision 1 of the Penal Code. Appellant does not question the sufficiency of the evidence to sustain the convictions. This evidence, in substance, reveale...
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Defendant Roger Cisneras was convicted of possession of heroin in violation of section 11500, Health and Safety Code. He appeals from the order denying his motion for a new trial and from the judgment of conviction. Two issues are presented by defendant on this appeal: (1) Was the evidence upon which defendant’s conviction was predicated obtained illegally in violation of constitutional rights ...
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Respondent, the Director of the Department of Motor Vehicles, revoked petitioner’s motor vehicle operator’s license. Petitioner, by petition for writ of mandate in the superior court, sought to set aside the order of revocation. Trial was had on the record of the administrative proceedings previously held before the Department of Motor Vehicles. The court upheld the administrative order and entere...
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Plaintiffs brought this action against The United States National Bank of San Diego, alleging that it had improperly paid a $6,000 cheek and charged it against plaintiffs’ account. The defendant bank filed a cross-complaint in which it named the Bank of America National Trust and Savings Association as the only cross-defendant, praying for a judgment against that bank in the event a judgment shou...
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These two actions find their source in a prior action (Butler v. Holman, 146 Cal.App.2d 22 [303 P.2d 573], cert. den. 353 U.S. 930 [77 S.Ct. 718, 1 L.Ed 2d 723]). The estate of Aaron B. Butler, deceased, owned a parcel of unimproved realty near Coalinga, California. Jack M. James, Andrew J. Thickstun, and their respective wives, located the “Mistake Lode Mining Claim”...
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Appellant filed, in propria persona, a motion to vacate a “void” judgment on November 24, 1961, having pled “guilty” on July 10, 1961, to an information charging him with grand theft of an automobile, a violation of Penal Code section 487, subdivision 3, and admitting three prior convictions, and after the denial of probation having been sentenced on July 24, 1961, to the term prescribed by law. ...
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This is an appeal from a judgment for the plaintiff, Theodore Mutz, granting specific performance of a contract of the decedent, Marshall S. Hanrahan, to will to Mutz $10,000 and certain real property. Appellant, H. R. Wallace, is the executor of the will of the decedent; appellant and intervener, J. S. Mellen, is an heir of the decedent and the testamentary devisee of the real property in ques...
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Martin Frederick Joseph Teddy died testate on August 13, 1960, naming the respondent, Ruth Anna Gianassi, as executrix and the residuary legatee of the bulk of his estate. On this appeal by the Controller of the State of California from an order of the probate court sustaining respondent’s objection to the report of the inheritance tax appraiser and fixing the tax, the only question presented is w...
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Plaintiff seeks to establish rights to property of a decedent on the ground that she is the surviving spouse or (alternatively) the putative spouse of Ralph E. Miller, decedent. Defendants are the children of decedent by a prior marriage. Plaintiff married Burton C. Wells in 1920 and obtained a divorce from him in 1945 in Dallas, Texas. She married Prestley H. Walker in 1947 in Dallas, and the ...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of petty theft with a prior conviction of a felony, in violation of section 667 of the Penal Code. The prior conviction was for the same offense with which defendant is now charged, namely, petty theft with a prior conviction of a felony. Defendant pleaded not guilty and denied the prior co...
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In an information filed by the District Attorney of Los Angeles County, defendant and codefendant (not appealing) were charged with the crime of sex perversion in violation of section 288a of the Penal Code. The information further alleged defendant Young had suffered a prior conviction of a felony, to wit, burglary. Defendants entered pleas of not guilty and defendant Young denied the prior conv...
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The issue on this appeal is whether the search of a person unlawfully incarcerated in a jail, and the seizure of a narcotic in his possession which was revealed by this search, was illegal because in violation of the constitutional guarantee against unreasonable searches and seizures. The defendant was arrested and placed in jail on a burglary charge; was not taken into custody under a warrant ...
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Plaintiffs appeal from a judgment entered upon ain adverse jury verdict in a wrongful death action arising from a collision between a truck driven by defendant Hatfield and a Volkswagen automobile in which the deceased, Bettie R. .Stephens, was riding as a passenger. Plaintiffs are the husband and minor children of the deceased. The driver of the Volkswagen, JoAnne Cooper, was also killed in th...
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Plaintiff, a seaman, brought this action against his employer, American President Lines, Ltd., to recover for injuries sustained when he was assaulted by a fellow crewmember, one Herbert Suvaco. The complaint set forth two alternate theories of liability: (1) that defendant was negligent in signing and retaining the assailant with knowledge of his dangerous disposition; and (2) that the ves ...
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Plaintiffs appeal from judgment for defendants in this action for damages for fraud. In August 1959, plaintiffs bought from defendant Frances Limón an old four-apartment building. Shortly after the purchase, plaintiffs sought a building permit for remodeling, and then found for the first time that building code violations had been discovered by a city electrical inspector in 1957. Substantial rew...
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This appeal involves the sufficiency of the evidence to support a finding that certain property had been the community property of the decedent and her predeceased husband so as to make it pass to the latter’s son under Probate Code, section 228. The decedent, Ruth Cline, was a childless widow who died intestate. Her husband, James Cline, had died in 1942. The estate of Ruth included a residence o...
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The plaintiff, Casa Colina Convalescent Home, is a beneficiary under the will of Genevieve Garcelon, deceased, who died in January 1958 in San Bernardino. The plaintiff Bank of America National Trust & Savings Association is administrator with the will annexed of the estate of the deceased, Genevieve Garcelon. This action was brought for the purpose of impressing a resulting trust upon real est...
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In a non jury trial the defendant was convicted of unlawfully possessing heroin. He admitted an allegation of the information that he had been convicted previously of violating section 11500 of the Health and Safety Code, a felony. He was sentenced to state prison. He appeals from the judgment and sentence. Appellant contends that the heroin which was received in evidence was obtained by the offic...
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This is an appeal from an order modifying the provisions for support of the minor children of the parties as contained in the interlocutory decree of divorce. 1 The decree granted custody of the two minor sons of the parties (now aged 13 and 11 respectively) to the mother, “the defendant to have the right of reasonable visitation.” The defendant father was ordered to pay “as and for support” ...
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Condemnation of ocean front property at Santa Monica, California, for public use, was decreed in favor of the State of California in an action in the superior court entitled People v. Orr. A default judgment was duly entered therein against Nellie Jane Hamacher who is the plaintiff and appellant in the within action. In the condemnation action she was awarded $40,500 as the fair market value of he...
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Sue Clowdsley, as administratrix with the will annexed of the estate of Fred G. Emry, deceased; Charles E. Walker; and Eunice C. Emry have appealed from a judgment in favor of Antoinette Boltzen in an action brought by her to quiet title to certain property in San Joaquin County. In August 1930 Sarah Ann Donlin, respondent’s predecessor in interest, leased 200 acres of land she owned to the Union ...
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The petition seeks to estop the trial court from proceeding further with the trial on an information in which defendant was charged in two counts of issuing cheeks without sufficient funds in the bank to meet them. *193 The contention is that the petitioner has been improperly committed because the municipal court did not exclude all the persons required to be excluded from the courtroom at t...
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Defendant-owner appeals from a judgment in condemnation which fixed the value of the subject property at $68,535. The only points raised on appeal relate to the amount of the award, the defendant contending that it would have been higher had not certain errors occurred during the trial. The property consists of a three-story frame building located on the southwest corner of 14th Street and...
Views: 0
Plaintiff, a guest in defendant’s motor vehicle, brought this action to recover damages for personal injuries she sustained in an accident. She charges defendant with wilful misconduct. Defendant has appealed from an adverse judgment. Plaintiff has filed a cross-appeal on the tueory that the trial court improperly disallowed certain medical expenses that she incurred on the ground that these ex...
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This is an appeal from a judgment for the plaintiff in an action for the recovery of damages because of fraud in the sale of an advertising business. The findings *217 of fact of the trial court are challenged with respect to the matter of the plaintiff’s reliance on the representations made to him and also insofar as the defendant contends that there was error in that findings of ...
Views: 0
This appeal is from a judgment after a defense verdict in a personal injury case. Plaintiff was a structural iron worker who was injured when a bundle of roofing sheets on which he was standing dropped from the roof joists to the floor. Defendant owned and operated the crane by which the bundle was lifted onto the joists. Plaintiff was engaged in constructing a roof which was supported by steel...
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The defendant was accused of the murder of Alice Cooper. In a trial by jury he was found to be guilty of murder in the second degree. His motion for a new trial was denied and he was sentenced to be punished by imprisonment in the state prison. His appeal is from the judgment and from the order denying his motion for a new trial. In addition to the contention that the evidence was insufficient ...
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George E. Danielson, Walter M. Campbell, and Thomas T. Johnson (appellants) were awarded a summary judgment on their claim for attorneys’ fees aris *235 ing out of their representation of Jack G. Fisher. Appellants object on appeal to the decision made by the trial court as to the source of payment of their claim. Respondents are various other claimants of proceeds of the policy of life insuran...
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In 1955, plaintiff-appellant, then aged 15, married defendant-respondent, then aged 20. A child, Janet Sue Hobby, was born, the issue of said marriage. In 1958, plaintiff brought this action for divorce and custody of said minor child. After hearing, a divorce was granted to plaintiff and custody of the child awarded to her, subject to the right of defendant to reasonable visitations. Shortly aft...
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The issue on this appeal is whether the use of a business name incorporating the name of the person using the same, under the circumstances, constituted unfair competition. In July 1956, the plaintiffs, respondents herein, purchased a florist business from the defendants Mary Maeres and Eliz *252 abeth Fisehle who are the mother and sister, respectively, of the defendant, Albe...
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This is an action to determine heirship to the estate of Harry Andrew Peterson, who died intestate on June 16,1959. The basic controversy is between claimant and respondent Helen Anderson, who claims to be the legitimated daughter of the decedent, and claimant and appellant Choice Peterson, the granddaughter of Alice Peterson, the predeceased spouse of the decedent. Helen Anderson’s claim of he...
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The present action is for a judgment forfeiting to Girard the title to a residential lot of defendants Miller (lot 26, tract 23261) by reason of violation of a condition subsequent allegedly contained in tract restrictions. The demurrer of defendants to the second amended complaint as amended was sustained without leave to amend and judgment for defendants was entered. Plaintiffs appeal. The lot i...
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appeal from a judgment of the superior court which denied their petition for a writ of mandate to compel respondent Insurance Commissioner to set aside his decision suspending their licenses for a period of six months. Appellants are licensed insurance agents and brokers and in October 1957 they made a concerted effort to attract “bad risk” business from persons whose drivers’ licenses had...
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Clarence Henderson, John Williams, and John Auls were charged by information with a violation of section 591 of the Penal Code, it being alleged that they “unlawfully and maliciously took down and removed a telephone line.” After a trial by jury they were all found guilty as charged and judgments were pronounced. They have appealed from the judgments. Appellants do not question the sufficiency of ...
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Defendant-appellant Gatsy Lee Wood was charged jointly with defendant Donald Evans with the crime of grand theft (violation of Penal Code, sections 484 and 487) between June 1, 1960 and August 31, 1961, and with conspiracy to commit the crime of grand theft (violation of Penal Code, section 182). Three separate overt acts are charged, i.e., (1) that about March 1, 1960, defendant Wood presented a...
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Defendant appeals from a judgment of conviction of assault with a deadly weapon with intent to eom*309mit murder. Defendant admitted the shooting but denied intent. There is no claim that the evidence was insufficient to support the judgment. The only issue on appeal is whether the court erred prejudicially in overruling defendant’s objection to the closing argument of the district attorney in whi...
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The central question involved on this appeal is whether the trial court followed applicable adjective law in the process of setting aside an order of over seven years’ standing which gave the custody of two infants to their paternal grandparents in accordance with a property settlement agreement, and awarding their custody to their mother without making a finding relative to her fitness or unfi...
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The defendants appeal from two judgments in which the law and the facts are identical or parallel. Although an order of consolidation of the two suits was made in the trial court, separate findings and judgments were entered. Counsel for all parties stipulated that the cases be consolidated on appeal. There is a duplication of most of the parties plaintiff and defendant in the two suits, and th...
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—In 1942,the decedent Robert Mahorney, married Iomae Mahorney. They had two children. Iomae died in September 1956. On December 23, 1956 decedent married respondent, Clythian Mahorney. They had one child. Robert Mahorney died in 1959, and respondent was appointed administratrix of his estate. Decedent had been employed at the Alameda Naval Air Station, and in 1954 he was included under a federal e...
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This appeal presents the question of the propriety of an award of a wife’s attorney fee in a proceeding arising after entry of judgment of divorce. The wife made a motion that defendant husband be held in contempt for violation of the custody order set forth in the judgment, as modified. The husband countered with a motion for modification of the custody and support provisions of the decree and th...
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Plaintiffs, the widow and children of Tarance S. Magee, deceased, appeal from an adverse judgment in an action for damages for wrongful death caused by administration of Sparine, a Promazine drug, with resulting Agranulocytosis and death. Originally, Las Encinas Sanitarium, Wyeth Laboratories, Inc., and seven physicians and nine nurses were named as defendants but a settlement was reached ...
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Plaintiff acquired a one-half interest in certain mining claims from defendants. Defendants transferred the remaining one-half interest to plaintiff as security for moneys advanced by plaintiff to defendants. Prior to these transfers to plaintiff the federal government filed two civil actions in the United States District Court for the Southern District of California, Central Division, one action ...
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This is an appeal by defendant from a judgment of conviction of attempted escape. By information, defendant was charged with “. . . the crime of Escape from the Custody of a Deputy Sheriff of the County of Los Angeles, in Violation of Section 4532, Penal Code, a felony . . . while charged with a felony, to wit, Extortion, and while convicted of a crime, to wit, Violation of Section 594, Penal Cod...
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Grace I. Waymire, as special administratrix of the estate of Melvin C. Waymire, deceased, is the appellant in this court from an adverse judgment against the deceased in an action brought for breach of an employment contract and from a judgment of nonsuit on a second cause of action based on tort. Melvin Waymire was employed as a bus driver by the sole defendant in this action, Placer Joint Uni...
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This is an appeal by Charles Hartley from a judgment in condemnation which decreed that certain other defendants, Simon’s Beverly, Inc., a corporation, William A. White, Etta I. White, Louis H. Herrin and Kern *379 County, should receive a total sum of $7,500 for the taking in eminent domain of a parcel of property located near Lebec for state highway maintenance station purposes. The judgment ...
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This appeal originated in interparty proceedings in a probate matter. Minnie Cuneo, appellant, and Charles C. Hein, respondent, are coexecutors of the estate of Stephen Cuneo, deceased. Minnie Cuneo is also an heir and a devisee and legatee under the will of decedent. Appellant petitioned to remove respondent as an executor, for an order setting aside a prior judicial allowance of a claim in favo...
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Appellant, the 19-year-old married daughter of the deceased, filed her petition for letters of administration of her mother’s estate. The husband of the deceased failed to apply for letters and did not contest the proposed appointment of appellant (Prob. Code, § 427). The trial court found that while appellant was, by education, training and otherwise, qualified to act as administratrix, she was d...
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This is an appeal by Paul E. Sloane from certain orders of the probate court (1) discharging him as attorney for the estate of Glenn Allen McManus, Jr., and substituting other attorneys in his place; (2) denying his petition for an award of attorney’s fees on account pursuant to Probate Code, section 911; and (3) allowing final distribution of the estate. The record reveals that on May 20, 1960...
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Defendant was convicted of violating section 20001 of the Vehicle Code, commonly referred to as “hit and run.” He has appealed from the judgment (order granting probation). On June 14, 1962, a few minutes before 11 p.m., Albert P. Witte and his wife, Jemina, were driving in the vicinity of 58th Street and Gifford Avenue in the City of Maywood. As Mr. Witte was crossing this intersection his w...
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In an information filed by the District Attorney of Los Angeles County defendant Avas charged with the crime of possession of a narcotic, marijuana, in violation of section 11530 of the Health and Safety Code. Defendant entered a plea of not guilty and personally waived trial by jury, as did all counsel. Pursuant to stipulation, the cause was submitted to the court on the eiddence adduced and tes...
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Plaintiff-appellant John M. Ferry brought this action for declaratory relief against defendant-respondent John A. McNeil seeking a declaration of the rights of the respective parties. Facts Defendant McNeil obtained a lease from one Dan Rossi to extract sand, rock and gravel from real property (parcel one) known as Slaughterhouse Canyon, which lease expired September 5, 1961 and was r...
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On October 10, 1960, plaintiffs, cross-defendants, and appellants, Gus D. Corey and Helen P. Corey, brought an action for fraud and damages against defendants, cross-complainants, and respondents, Eberhard F. Weerts and his wife, Adeline, et al. The action involved an agreement of sale, dated November 26, 1958, of a going restaurant business, wherein the Coreys agreed to purchase it from defend...
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The issues in this case are raised by four pleadings; a complaint seeking partition and alleging that the plaintiff is the owner of a three-fourths interest in 80 acres of land that the defendant, i.e., a trustee of a testamentary trust, is the owner of a one-fourth interest therein; an answer denying the plaintiff’s ownership; a first amended cross-complaint seeking to impose a constructive tr...
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In this action for divorce, obtained by the plaintiff wife, the custody of the 5-year-old son was awarded to the mother on June 24, 1957, with specific visiting rights to the father and an order for child support was made. Two months later, the mother brought a motion for permission to use the child support money to place the child in a military academy. The motion was granted on September 10, 19...
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This matter comes to us on an agreed statement of facts showing generally that on January 22, 1953, the Anaheim Gazette, a corporation, filed a petition in the Superior Court of Orange County which sought to have the Anaheim Daily Gazette legally adjudicated a newspaper of general circulation in the City of Anaheim, County of Orange. *439The petition, as filed, contained among other things the fol...
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Defendant-appellant was charged in count one of the crime of forgery, in violation of Penal Code, section 470, in that he forged the name of Robert G. Anaya to a “request for transcript of record” with intent to defraud Mr. Anaya and San Diego State College. Count two was dismissed. Count three charged forgery of a “receipt for transcript of record.” Count four charged violation of Penal Code, se...
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Jim Owen Vanderburg appeals from a judgment of conviction entered after a verdict of guilt); the information charged that: “The said Jim Owen Vanderburg on or about the 21st day of April. . . nineteen hundred and sixty-two, . . . did wilfully, unlawfully and feloniously have in his possession and under his custody and control a certain firearm, to wit, a German P-38 automatic pistol, capable of...
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Defendants appeal from a judgment decreeing that they have no right, title or interest in or to any of the subject property and ordering them to remove a partially *466 completed commercial concessions building which they were in the process of erecting thereon. The defendants own adjoining property upon which they conduct a resort business. Their attempt to erect the concessions b...
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This is anappeal “from an order denying a motion for a new trial. ’ ’ In an indictment returned in Los Angeles County appellant was charged with selling heroin on August 8, 1961. It was further charged that appellant had previously been convicted of two felonies (rape and pimping) and had been convicted (and had served a sentence) on one charge of violating section 11500, Health and Safety Code (p...
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Defendants Stinson and DeMello were separately charged with second degree burglary (Pen. Code, § 459) in that they entered the Crystal Motel at Red Bluff with the intent to commit theft. Their cases were consolidated for trial, which was held before a jury. Both were convicted and both appeal. DeMello also appeals from an order denying new trial. The order is not appealable but may be reviewed *...
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Appellant makes two points on appeal from a decree of divorce which was made in favor of his former wife: (1) that the evidence is insufficient, as a matter of law, to sustain that part of the judgment which declares a minor child born to the wife on November 13, 1960, to be the lawful issue of her and appellant, and requires appellant to pay for the child’s support; and (2) that the court failed...
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Defendant was convicted of unlawfully taking an automobile in violation of section 10851, Vehicle Code. While represented on the lower court level by the public defender, defendant appears before us in propria persona, he at no time having requested of this court appointment of counsel. The owner testified that around 11:30 p.m. on February 6, she parked her Chevrolet in a parking lot, the next mo...
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In this action, through the ancillary remedy *494 of claim and delivery, plaintiff sought to recover possession of two motor vehicles from defendant Rater. Plaintiff is the assignee and owner of a conditional sales contract between defendant Hill, the registered owner of said vehicles, and one Walter Burge Ford. Defendant Hill had turned these motor vehicles over to defendant Rater...
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The present action is for damages and an injunction, The damage issue was tried to a jury, which returned a verdict against Terrence Cooney and Sterling World Distributing Corporation, Inc., for $7,500 as compensatory damages and against Sterling for $35,000 as exemplary damages, which was reduced upon motion for a new trial to $7,500. Defendants made a motion for judgment notwithstanding the ver...
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214 Cal.App.2d 505 (1963) FRED J. EARLY, JR., COMPANY, INCORPORATED, Plaintiff and Appellant, v. COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY, Defendant and Respondent. Civ. No. 26193. California Court of Appeals. Second Dist., Div. Three. Mar. 27, 1963. Thelen, Marrin, Johnson & Bridges, James W. Baldwin, James M. Radnich and John G. Flett for Plaintiff and Appellant. Knapp, G...
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The issue for determination in this matter is whether a proceeding under sections 6500-6510 of the Penal Code, to commit a person as a narcotics addict, may be eom*511meneed in a county other than that of which he is a resident, or in which he may be at the time the petition instituting such proceedings is filed. On the evening of December 17, 1962, petitioner, a resident of Bellflower, California...
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Plaintiff McKee appeals from the judgment herein in favor of defendant Peterson and awarding defendant Peterson costs against plaintiff. Defendant Clementson appeals from that portion of the judgment awarding plaintiff $4,975 against defendants Clementson, Butler, and Furst. Defendants Butler and Furst do not appeal. *518 Questions Presented Plaintiff’s Appeal. 1. ...
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This is an appeal on a partial clerk’s transcript and agreed statement of facts from an order of the probate court terminating a testamentary trust and distributing the balance of the corpus and accumulated cash income thereof. Simply stated, the question for our decision is whether the court below properly determined the persons to whom and the proportions in which such remaining trust assets ...
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Defendant Coughlan, one of three defendants against whom judgment was rendered, appeals from said judgment. The other defendants have not appealed. Question Presented Was the agreement between Hill and North materially altered, thus exonerating Coughlan? Record October 31, 1956, plaintiff, a wholesale lumber dealer in *547 Oakland, entered into a written agreeme...
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This is a petition for a writ of mandate to compel the Superior Court of Napa County to admit relevant testimony on the issue of 189 claimed illegal votes in an election contest action. Question Presented Did the trial court properly sustain an objection to the admission of testimony of the claimed illegal votes on the ground that the written list of the number of illegal votes wa...
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Defendant loitered in an Oakland market at closing time. When one customer opened the door to leave, one Swift entered. He drew a pistol and approached the counter. Defendant drew his gun and ordered employees and customers to a room at the rear. As Swift reached the counter, he began to beat the owner, one Eng, over the head with his gun, saying “You’re the man I wanted, . . . get in the back. ’...
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Gilbert M. Juvera and Harry Boland Truitt were indicted for an alleged violation of Health and Safety Code sections 11500 (possession of heroin) and 11530 (possession of marijuana). Three prior felonies were also charged against Juvera, and two against Truitt. Jury trial was waived, and by stipulation the case was submitted to the court upon the transcript of testimony taken before the grand jury...
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Defendant was charged in count I with violation of Health and Safety Code, section 11531 (offering, selling or furnishing marijuana), and in count II with violation of section 11530.5 (possessing marijuana for sale). The jury convicted him on count I and acquitted on count II. Evidence in the record which supports the judgment will be stated briefly. One evening about 7 p.m. officers went to the h...
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In the course of construction of a building, defendants had occasion to use a cement finishing machine which, as described in the testimony, had the appearance of a large lawnmower with horizontally rotating blades. While the machine was being used on a Saturday morning, one of the bolts holding one blade broke or sheared, causing the blade to malfunction. Because it was unwise to allow the machin...
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By information defendant was charged with possession of marijuana in violation of Health and Safety Code, section 11530. Defendant entered a plea of not guilty. Defendant personally and all counsel waived trial by jury and defendant was found guilty as charged. A motion for new trial was made and denied. Proceedings were suspended and defendant was granted probation for five years. The sole con...
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This is an appeal from a judgment denying a writ of mandate entered after the superior court reviewed a determination by the California Unemployment Insurance Appeals Board of the Department of Employment that the claimant Frederick Collins Fermín was disqualified to receive unemployment insurance benefits for certain weeks. The record shows that until March 31, 1960, Fermín was employed as a d...
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The issue on this appeal is whether a granddaughter is a pretermitted heir of her grandmother’s estate or was excluded from participation therein by the terms of a purported disinheritance clause in the grandmother’s will. . Joan Farmer, who is the appellant herein, is the daughter of a deceased son of Portia E. McClure; was not named as a devisee or legatee in the latter’s will; and instituted he...
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Defendant was convicted after trial to a jury, of the crime of assault with a deadly weapon, violation of Penal Code section 245. The evidence, viewed in the light most favorable to the People (People v. Caritativo, 46 Cal.2d 68, 70 [292 P.2d 513]), reveals that the assault occurred in a tavern on December 31, 1962, about 11:30 p.m. It was New Year’s Eve, the place was overcrowded, and many c...
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This is an appeal from a judgment in favor of the defendants, hereinafter referred to as the respondents, and against the plaintiff, hereinafter referred to as the appellant. The Record The appellant filed a complaint against the respondents, the pertinent allegations of which are as follows: That the respondent insurance company through its agent, the respondent Petersen, issued a po...
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Appellant, Dolbeer, appeals from a judgment of conviction in which he and Joseph Lucia (who is not a party to this appeal) were found guilty of conspiracy. The accusation was by indictment, jury was waived, and no defense witnesses were produced. The indictment charged defendants with conspiracy to violate the following provisions of the Penal Code: section 496 (receiving stolen property), sectio...
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By resort to administrative mandamus (Code Civ. Proc., § 1094.5) appellant as a taxpayer sought to compel respondent City of Santa Barbara to grant a hearing of an application for a zoning variance by the real parties in interest. Such application, it appears, was voluntarily withdrawn when the application was before respondents’ planning commission. On appeal by petitioner to the city council, th...
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These two eases were consolidated for purpose of trial, tried together and are presented here upon a single reporter’s transcript. Each is an action for slander of plaintiff through a news telecast delivered by defendant Putnam on January 24, 1958, pursuant to an alleged conspiracy with Miles Laboratories, Bond Stores (his sponsors) and Bruce Allen, all of whom were joined as defendants. The Ar...
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Defendant Young appeals from a judgment convicting him of voluntary manslaughter of one Clifton Lee Harris. His counsel raises the single contention that “the trial judge refused to instruct upon the theory of justifiable homicide on attempting to prevent commission of a felony, ’ ’ and thereby erred prejudicially. The court gave certain instructions upon justifiable homicide (which were i...
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Cross-appeals are involved. Defendant, Herman Timber Company, a corporation, appeals from a decree quieting plaintiff’s title to an interest in real property and in timber thereon. Plaintiff appeals from an order deny^ ing plaintiff’s motion for permission to file, tardily, a cost bill. We will discuss the appeals in the order stated. The real property, title to an interest in which was qu...
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Charles H. Brown, a former inheritance tax appraiser, brought this action in mandamus to compel the controller to approve three claims for compensation submitted by petitioner under the provisions of section 14772 of the Revenue and Taxation Code. Judgment in the trial court was entered in favor of the Controller of the State of California and Brown has appealed. This action involved three...
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Plaintiff, Sutter Youth Organization, Inc., commenced an action against defendant to reform a deed to plaintiff's predecessors in interest so as to include in said conveyance all of the right, title and interest of defendant in and to certain community oil and gas leases. Issue was joined and following a trial the court found “that by mutual mistake of the parties to said deed, said Deed failed...
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Joseph Garcia was charged by information with the crimes of burglary in the second degree and petty theft. He was found guilty by a jury on the burglary charge and has appealed from the judgment entered on the verdict and from the order denying his motion for a new trial. Pursuant to appellant’s request this court appointed Willard L. Weddell to act as his counsel. Hr. Weddell has informed this...
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Plaintiff has appealed from a summary judgment favoring defendants and from a judgment denying plaintiff’s motion for summary judgment. The facts are undisputed. On September 15, 1960, a petition was filed in the bankruptcy court by creditors of Lakeside Lumber Co., Inc. to have Lakeside declared a bankrupt. Written notice of the bankruptcy proceedings was received by the sheriff on September 19, ...
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Defendant appeals from a conviction of statutory rape alleged to have been committed on March 15, 1962. He has also noticed an appeal from an order denying his motion for a new trial. The latter order is not appealable (Pen. Code, § 1237) and that portion of the appeal is dismissed. The prosecutrix, who was 17 years old at the time, testified that she was in love with the defendant, who had pro...
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On a Friday afternoon Wayne Haapala, a construction superintendent of Gordon H. Ball, Inc., a corporation, was flying in its 1956 Cessna Model 182 airplane from Oakland to Three Rivers when he was forced to make a landing near Atwater due to the exhaustion of his fuel or because of some defect in the plane. He attempted to land at the airport, but by mischance crashed in a neighboring oat field...
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Defendant, together with Richard Underwood and William Croxall, was indicted for an alleged violation of Penal Code section 211 (robbery); Penal Code section 217 (assault with a deadly weapon with intent to commit murder), and violation of Health and Safety Code section 11500 (possession of narcotics). Croxall pleaded guilty to robbery, first degree, and also guilty to the lesser included offense ...
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This is an appeal from a judgment in a declaratory relief and quiet title action wherein the plaintiff and appellant husband contended that his former wife had violated *711 the terms and conditions of an understanding and the terms of an interlocutory divorce decree with reference to certain real property allegedly held by the parties as joint tenants. A résumé of some of the...
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The petitioner seeks a writ of mandate to compel the superior court to vacate an order denying the peti*720tioner’s motion to quash service of summons and thereupon to make an order granting that motion. On May 8, 1961, the real party in interest, a minor, filed an action against the petitioner to recover damages for personal injuries alleged to have been sustained by her in an automobile accident...
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This is an action to recover the proceeds *726 of a $10,000 bank cashier’s check issued at the request of the plaintiff, the respondent herein; made payable to the defendant Mission Bay Yacht Sales, a partnership, one of the appellants herein; allegedly was caused to be issued and paid for by the plaintiff in reliance upon the false representations of a man named Cowan; and, therea...
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Defendant Alfred Torres, charged with the murder of one John Rosales,1 was found guilty of murder in the first degree by the court sitting without a jury. Defendant, who was sentenced to life imprisonment, appeals on the following grounds.- (1) the evidence is insufficient to sustain a finding of first degree murder; (2) he was not properly represented by counsel; and (3) he was not advised as to ...
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Defendant appeals from the judgment of conviction concluding a non jury trial in which he was charged with possession of marijuana in violation of section 11530 of the Health and Safety Code; he had admitted a charge of five prior narcotic convictions. Defendant, who did not testify, does not question the sufficiency of the evidence to support the judgment. In substance, the brief record before...
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This is an appeal from a judgment setting aside a default judgment which had been entered against respondent by the appellant. Appellant and Mr. Pomatto had previously signed certain documents concerning the proposed purchase by appellant of a motel owned by Mr. Pomatto. Mrs. Pomatto, the wife and coowner of the motel, did not sign any of the documents. In the escrow agreement the appellant had d...
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The plaintiff, who is the respondent herein, brought this action to recover damages for injuries allegedly resulting from an accident' in which his automobile *755 was struck by another driven by the defendant With, an employee of the defendants Jezowski & Markel, who are the appellants herein. The accident occurred in an intersection, when the driver of the defendants’ automo...
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This is an appeal from an order granting respondent’s petition to file a claim pursuant to Government Code section 716 after the expiration of the 100-day filing period (Gov. Code, §715). The respondent, then 21 years of age, was injured on June 25,1961, in striking his head while diving into Lake Yosemite. Immediately thereafter he was paralyzed from the chest downward, fracturing his cer...
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This is an application by appellant William Goldberg for a writ of supersedeas to restrain an execution sale pending his appeal from an order denying his motion as an intervener, to quash plaintiff’s levy of attachment. On December 13, 1960, the plaintiff in this action brought suit against C. A. Petrie to recover upon a promissory note for the sum of $8,250, together with interest and attorneys’ ...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of illegal possession of marijuana in violation of section 11530 of the Health and Safety Code. Defendant entered a plea of not guilty. Defendant personally and all counsel waived trial by jury. Defendant was found guilty as charged. A motion for new trial was denied. Probation was grant...
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The appellant petitioned in the superior court for a writ of mandate requiring respondents to exclude appellant’s property from a proposed special assessment improvement district to be created under chapter 20, section 20-16, West’s California Water Code Appendix [Deering’s Wat. Code, Act 5243, § 16]. The Rainbow Municipal Water District and the members of its board are the respondents herein. ...
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Plaintiff appeals from a judgment against defendant in the sum of $10. Question Presented In this action under section 16601, Business and Professions Code, for violation of a noncompetition agreement in a sale of goodwill of a business, is plaintiff entitled to more than nominal damages ? Record March 17, 1959, plaintiff and defendant, partners in the operation of a bar and restaurant ne...
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In this eminent domain proceeding, plaintiff city acquired 9.48 square feet of defendant’s residential lot. Value of the land was stipulated to be $20. Defendant sought $3,000 in severance damages. The court, sitting without a jury, rejected defendant’s offer of proof as to severance damages, and entered judgment only for value of the land taken. Defendant appeals. Defendant’s lot has a frontag...
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This is an appeal by the owners of land from the judgment and final order of condemnation based upon a jury verdict fixing the fair market value of their property. Appellants were the owners of Lots 9 and 12, Block D, as shown on map No. 2 of Del Monte Beach, Monterey County, described as parcel 3 in the complaint, and which respondent *796 sought to condemn for public use. The sole issue at tr...
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Appellants were convicted of conspiracy to commit prostitution. Convicted with them, of conspiracy to commit prostitution and to keep a house of ill fame, were Maudria Lewis and William E. Jackson, who appealed originally but have dismissed their appeals, having served their sentences and not being interested in pursuing appellate procedures. An informant, paid by the county, met defendant Jack...
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In September of 1960 plaintiff wife instituted *805 an action in Los Angeles County for divorce or, in the alternative, separate maintenance. In addition to permanent support for herself and a division of the community property, she sought custody of the parties’ three minor children, then 10, 7% and 6% years of age, and money for their maintenance. In February of 1961 an amended complaint was ...
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The Methodist Hospital of Southern California and the Southern California School of Theology, hereinafter referred to as the “Methodist Hospital” and the “School of Theology,” respectively, have taken separate appeals from certain portions of the order settling the twentieth and final account of the trustee and ordering distribution of the trust created by the will, the provisions of which are the...
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The salient facts are as follows: On January 4, 1963, petitioner filed suit against Ernest Winter to establish paternity and for support of the child in question. On January 6, 1963, Ernest Winter was served with a copy of the complaint, a copy of the summons and a copy of the order to show cause. On February 14, 1963, petitioner and Ernest Winter appeared before the respondent court on the heari...
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This is an action brought against Atherwood Realty & Investment Company, Inc. (hereinafter called Atherwood), and four individuals who were its directors and shareholders, to recover the reasonable value of building materials furnished by the plaintiff and to set aside allegedly fraudulent conveyances made by Atherwood to the other de *832 fendants. Atherwood’s default was entered ...
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This is an action for personal injuries arising out of an automobile-pedestrian accident. Plaintiff Lillie Gage Williams (hereinafter sometimes referred to as “plaintiff”) was struck in a marked crosswalk by an automobile driven bj^ defendant Barry Goodman (hereinafter sometimes referred to as “Goodman”) and owned by his employer, defendant Pacific Dental Supply Company, a corporation (hereinaf...
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This is an appeal from a judgment declaring that appellant has no right in or to gravel deposits located on certain lands owned by respondent. In 1919 appellant, by deed, conveyed to respondent’s predecessor in interest Section 6, Township 11 South, Range 11 East, M.D.B. & M., in *872 the County of Merced. The deed contained the following language: “. . . reserving and excepti...
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By this action, the plaintiff, Associated Plumbing Contractors of Marin, Sonoma and Mendocino Counties, Inc., a trade association (hereinafter referred to as *3 the Marin Association) and its individual members, the remaining plaintiffs, seek to enjoin the defendant, F. W. Spencer & Son, Inc. (hereinafter referred to as Spencer) from the further prosecution of an action pending bef...
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Defendant, Frank Martin Molarius, Jr., appeals from a judgment rendered on a jury verdict finding him guilty of burglary in the second degree (Pen. Code, § 459), and from the order denying his motion for a new trial. The contentions on appeal are that certain evidence used at the trial was obtained by an unlawful search and seizure, and that the identification evidence adduced at the trial does n...
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The gift deed relied upon by defendant-appellant in this quiet title action is wholly in English. Nonetheless, the ease turns largely upon the meaning of an Italian word. Plaintiffs-respondents are the with the will annexed of the estate of the deceased grantor and the sole beneficiary of that will. Plaintiffs are the children of defendant and his first wife, *18 who died befo...
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The question is whether the levy of the use tax made by the state against two self-propelled diesel electric cranes is violative (1) of the commerce clause of the Constitution of the United States, or (2) of section 2015 subdivision (b) of title 18 of the Administrative Code of California. In this action to recover the paid taxes, the parties have stipulated to the facts. Western Pacific, ...
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Plaintiff sued defendant Insurance Company for injuries inflicted upon her by an uninsured motorcyclist. She relied upon an endorsement which was attached to her automobile policy under date of June 30, 1959, to become effective on July 14, 1959. It contained an uninsured motorist liability provision as follows: “I. Damages for Bodily Injury Caused by Uninsured Automobiles. To pay al...
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This is an appeal from the order made November 1, 1961, “Denying Plaintiff’s Motion for Reconsidering the Court’s Order of Dismissal of the Petition and Complaint.” The order dismissing the action was made October 20, 1961, in response to a motion of defendants International Organization of Masters, Mates and Pilots, West Coast Local No. 90 and Robert E. Durkin. The ground of the motion for recons...
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This is an appeal by defendant L. K. Shostak from a judgment rendered on a promissory note in favor of plaintiffs Emil and Lotte Schwerin. The note sued upon was in the face amount of $1,249.90, and the complaint was originally filed in municipal court. Defendant answered and cross-complained for declaratory relief, alleging that the note was executed concurrently with a second note, and t...
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The taxpayers, as executors of the will of Cornelia Wheeler Good, appeal from an order overruling objections and fixing an additional inheritance tax pursuant to section 13441 of the Revenue and Taxation Code. Appellants contend that the lower court’s interpretation of section 13441 of the Revenue and Taxation Code is erroneous and contrary to legislative intent and that the statute is unconsti...
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Plaintiffs are the widow and seven children of Frank Stathos, who died after being struck by an automobile driven by defendant. In this wrongful death action defendant admitted liability and the case went to trial before a jury on the issue of damages alone. The jury returned a verdict for $7,388.80 of which $1,838.80 constituted funeral expenses. Plaintiffs’ motion for new trial was denied. Pl...
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An order to show cause issued from this court upon an application for a writ of mandate to command the Superior Court of Shasta County to grant petitioner’s motion for change of venue to Solano County. Petitioner was served with summons on October 3, 1962, at Dixon, Solano County, California, and filed a timely answer and cross-complaint naming David Essner and R. P. Chiekering as cross-defendants...
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Defendant was convicted in two counts charging that he sold narcotics, in violation of Health and Safety Code, section 11501. The sole contention on the appeal from the judgment is that the evidence is insufficient to support the conviction. The chief witness for the prosecution at the trial was Agent David Fuentes, a state narcotics investigator. Agent Fuentes testified that on September 28, 1961...
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This is an action on a promissory note in which the makers, defendants and cross-complainants herein, while in effect admitting the unpaid balance, asserted by way of counterclaim and cross-complaint that the plaintiffs retained certain personal property of the defendants having a value in excess of such unpaid balance and claimed general, special and exemplary damages therefor. The court below r...
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We are presented with a question of liability deriving from conflicting “other insurance” clauses in three separately issued policies of automobile liability insurance. Briefly stated, our inquiry is as to whether in the instance at hand the policies provided for primary or excess insurance. We have concluded that the matter before us is governed by our decision in Athey v. Net...
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This is an action for declaratory relief brought to determine the respective liabilities of two insurance companies with respect to a cause of action for damages for personal injuries arising out of an automobile collision. Farmers Insurance Exchange (hereinafter called Farmers) commenced this action against Continental National Group, a corporation, and Continental Casualty Company, a corporat...
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This is an appeal by the plaintiff from a judgment for the defendants, following a jury verdict, in a personal injury action. The sole question on appeal is whether the trial court erred in giving an instruction on assumption of risk. The attack is made upon the propriety of the giving of the instruction and not upon the correctness of its content. The Record The'following facts are u...
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This is an appeal from an order setting aside a default judgment in a quiet title action. Question on Appeal Was there substantial evidence to support the trial court’s order ? The Record On March 7, 1957, the plaintiff filed an action to quiet title to real property against two named defendants, George E. Phoenix and Natural Resources, Inc., a corporation. Pursuant ...
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Defendant has appealed from an order partially denying his motion to quash and recall a writ of execution. Plaintiff has appealed from that portion of said order partially granting said motion. Background. This action was brought by plaintiff, under the provisions of section 196a of the Civil Code, on behalf of her daughter, who was born April 15, 1945. Judgment was entered February 18, 1949,...
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Charged with violation of section 288 of the Penal Code, this defendant was found guilty in a nonjury trial in which he was represented by counsel. Pursuant to stipulation the case was submitted on the police arrest and crime reports which were received in evidence and are contained in the transcript on appeal. Defendant did not testify or offer any evidence. Having found defendant guilty, the cou...
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This is an appeal from the denial of a writ of prohibition which sought to restrain respondent from proceeding to try petitioner for a violation of the Vehicle Code. Appellant was arrested on February 15, 1962, without a warrant and taken before a judge of the Municipal Court of the Whittier Judicial District and thereafter on the same day was charged with a violation of subdivision (a), section 2...
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SHOEMAKER, J. Defendant appeals from that portion of an interlocutory decree of divorce ordering him to pay plaintiff’s attorney’s fees. Defendant’s sole contention is that the court erred in fixing the amount of these fees without requiring any showing of the specific services performed by plaintiff’s attorney and without permitting defendant to cross-examine plaintiff’s attorney or to pr...
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Found to be a sexual psychopath, defendant in 1954 was committed to the Department of Mental Hygiene for placement in San Quentin prison for treatment. (Welf. & Inst. Code, §§5512, 5518.) In 1961 defendant, through counsel, filed in the committing court a document by which he “requests this court to institute the proceedings within the purview of Section 5519, ’ ’ and “to set a date for he...
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213 Cal.App.2d 142 (1963) ELLIS G. WOOTON et al., Plaintiffs and Appellants, v. RICHARD F. COERBER et al., Defendants and Respondents. Civ. No. 26192. California Court of Appeals. Second Dist., Div. Two. Feb. 19, 1963. Schwabacher, Cosgrove & Beaudet and Thomas J. Beaudet for Plaintiffs and Appellants. Jess F. High for Defendants and Respondents. HERNDON, J. This appeal is taken by pla...
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In an information filed by the District Attorney of Los Angeles County defendant was charged with four counts of abortion in violation of section 274 of the Penal Code. Defendant’s motion pursuant to section 995 of the Penal Code was denied as to each count. Trial was by jury and defendant was found guilty on all counts. His motion for a new trial was denied, proceedings were suspended, and defend...
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Following a proceeding before a committing magistrate, defendant was bound over to the superior *173 court for trial on a charge of second degree burglary. An information was filed. Being at liberty on bail, he appeared before the superior court for arraignment at 10 o’clock on a particular morning. The court told Mm that he was entitled to an attorney and that if he had no funds of his own the...
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In this action on a promissory note for $20,000 and to foreclose a chattel mortgage, the court, on motion of plaintiff on February 16, 1961, entered a summary judgment in full on the note and foreclosed a chattel mortgage on certain bar and kitchen equipment located in Palm Springs as to all defendants except W. W. Wooldridge. On February 24, 1961, on the court’s own motion, the summary judgment w...
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Defendants and appellants were adjudged guilty of contempt by the Superior Court of Inyo County and take this appeal. It was found by the trial court that acts done by the defendants in the use of property owned by them constituted a violation of a judgment of injunction entered several years before and that the violation constituted contempt. Appellants present a number of contentions challeng...
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Defendant-appellant appeals from a conviction for felonious assault, as defined by Penal Code, section 245, prohibiting an assault “by any means of force likely to produce great bodily injury." The appellant assigns as his sole claim of error that his conviction was based upon the testimony of an accomplice, one Bernard James Walker, and that such testimony was not corroborated, as required by Pe...
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This is an action for damages for personal injuries suffered by appellant while a spectator at a sports car race. The case was tried before a jury. At the close of appellant’s case respondents moved the court for judgment of nonsuit, which was granted. Appellant seeks reversal of said judgment. On January 27, 1957, appellant accompanied by friends attended sports car races being held at th...
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This is an appeal by plaintiffs from a judgment in an action for a declaration of rights. Plaintiffs are a California nonprofit corporation composed of practicing doctors of chiropractic and seven individual licentiates of the chiropractic board. They brought this action for declaratory and injunctive relief against defendants, who are the California State Board of Medical Examiners, five ...
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Defendant, Allen Jack Risley, was charged by information with four counts of violation of Penal Code section 228a, and one count of statutory rape, Penal Code section 261 subdivision (1). After a court trial defendant was convicted of the charge in count I of violating Penal Code section 288a and was found guilty of contributing to the delinquency of a minor, a lesser offense included in the char...
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The question presented on this appeal is whether the executor of the estate of the deceased life beneficiary of a testamentary trust is entitled to the income which came into the hands of the trustee in the period between the last quarterly payment of income to the life beneficiary and the date of the latter’s death. The executor has appealed from an order determining that he was not entitled to r...
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The superior court granted the defendant’s motion to dismiss the action pursuant to a provision of section 583 of the Code of Civil Procedure and rendered a judgment dismissing the action and awarding costs to the defendant. The plaintiff has appealed. The pertinent portion of section 583 is as follows: “The court may in its discretion dismiss any action for want of prosecution on motion of the de...
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This proceeding involves the application of the principle of Witt v. Jackson, 57 Cal.2d 57 [17 Cal.Rptr. 369, *242 366 P.2d 641], to a personal injury action which was at issue before that case was decided. A plaintiff, who has received compensation from his employer, has brought a common-law negligence action against three other parties. These defendants now desire to p...
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This case, like Tate v. Supe7'ior Court, ante, at page 238 [28 Cal.Rptr. 548], involves an attempt by a defendant in a personal injury action to base a defense and a cross-complaint upon the allegation that the plaintiff’s employer negligently caused the injury. The facts, as alleged in the petition filed here, are admitted by the return. On June 9, 1958, Elmer L. Per...
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Appelant and Bobby Gaddis were accused in count I of armed robbery (Pen. Code, § 211), and in count II of the murder of one John Lary (Pen. Code, § 187). They pleaded not guilty. (Appellant also put in a plea of not guilty by reason of insanity but withdrew it before trial.) Because of a conflict of interest, appellant was represented at the trial by separate counsel appointed under Penal Code, s...
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Plaintiffs recovered a judgment, after a jury verdict, for $20,500 compensatory and $5,000 punitive damages 1 against defendant Kuhl for the malicious and intentional flooding of a rice crop. The theory of plaintiffs’ case was that defendant had first filled a duck lake on his land to, or beyond, capacity, and had then released the water therefrom onto plaintiffs’ lands, defendant’s ...
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Herein defendants and cross-complainants in the trial court appeal from that portion of a judgment denying them relief on their cross-complaint. Although the judgment denied relief also to plaintiffs and cross-defendants, they do not appeal. The complaint alleged the following: On July 24, 1959, plaintiffs and defendants entered into a written contract whereunder defendants sold their accountin...
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This is an appeal by plaintiff from an order granting a motion by defendants to set aside a clerk’s default and default judgment against all defendants. The grounds of the motion were (1) the defective service of summons and (2) that no judgment in this action could be made without exercise of judicial discretion, and that, consequently, the clerk’s judgment was void. 1 The complai...
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This is an appeal from an order quashing service of process, setting aside a default, and vacating a judgment. On April 7, 1957, appellant, as plaintiff in the trial court, commenced this action to collect two debts guaranteed by respondent A. K. Wilson, a resident of Oregon. Respondent was served with process while present in California for the purpose of being sentenced in a criminal tax evasio...
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Plaintiff W. A. Black, a doctor of medicine, performed professional services for defendant Mary Rose Dillon and her family, consisting of her husband and children, over a period from February 19, 1958, to August 21, 1958. His bill therefor was in the sum of $746 after crediting payments thereon. When the bill was unpaid, he sued. Defendant by her *296 answer set up as a defense a malpractice su...
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The plaintiff and appellant brought this action to recover damages for personal injuries alleged to have been suffered by him as the proximate result of a slip and fall on property known as Disneyland Park in Orange County in November 1955. Plaintiff alleged that he *298 was on the property as a business invitee and that the defendant had negligently permitted "debris and foreign matter” to rem...
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Appellants filed this quiet title action for the purpose of preventing respondents’ use of a roadway. Respondents cross-complained, alleging a right of way by prescription, and prevailed in the trial court. Appellants are husband and wife, as are respondents. For convenience the parties will hereinafter be referred to in the singular. Appellant and respondent own adjoining parcels of farm lan...
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Defendant Charles Carlen appeals from a judgment for plaintiff Dorothy Bennett, in an action *308 to recover damages for breach of a contract to convey a leasehold interest in certain real property. The record discloses that in June of 1959, defendant, as owner, listed the leasehold interest, furniture and fixtures of the Lincoln Hotel for sale with the real estate firm of D ’...
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Three actions for damages, arising from a traffic accident involving three trucks, were consolidated for trial. In the first action, Truck Insurance Exchange (the compensation insurance carrier for Kenworthy-Norton Trucking Company, the employer of James B. Anderson who is a driver involved herein) sued Walter J. Hanrahan (driver) and his employer Dave Martin Trucking Corporation, and Samu...
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This appeal is taken by the several plaintiffs in two consolidated eases wherein judgment was rendered in favor of defendant following a non jury trial. By their actions appellants seek a refund of moneys paid to the state over a period of several years under the license and tax provisions of division 6, part 3, chapter 1, article 7 of the California Fish and Game Code. The sole issue presented...
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Plaintiff, a passenger on a “big red” streetcar operated by the defendant between Los Angeles and Long Beach, sued for damages sutained when the ear in which he was riding ran out of control down an 810-foot incline leading out of defendant’s main terminal in Los Angeles, jumped the tracks at the foot of the incline, and collided with four trucks. Trial by jury resulted in a verdict for plaintiff....
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Appellant Ishmael Gonzales Ozuna was accused of the murder of Adelina Mable Maldonado, with a prior conviction of burglary. He admitted the prior conviction. In the first trial the court declared a mistrial after the jury was unable to agree upon a verdict. In the second trial, before a jury, defendant was found guilty of voluntary manslaughter, a lesser, but necessarily included offense to that ...
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Floyd Sanford Breeden appeals from a judgment of conviction of violation of section 288 of the Penal Code. Trial by jury was waived. The victim was a boy 13 years of age. Pursuant to section 5500 et seq. of the Welfare and Institutions Code, and upon the reports of doctors under appointment by the court, defendant was adjudged a probable sexual *344 psychopath and committed to Atascadero Stat...
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Kathryn Bocker, a minor, by her father as her guardian ad litem, and her father, Verlin G. Bocker, on his own behalf, brought this action against defendant for injuries sustained when defendant’s horse, upon which the father and Ms daughter were mounted, reared up and came over backwards on top of them. The suit was based on two separate theories: (1) negligence and (2) ownership of ...
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In this action for wrongful death because of alleged medical malpractice, appellants, plaintiffs, concede that there is sufficient evidence to support the verdict for defendant physicians (the hospital was released by judgment of dismissal on demurrer, and no appeal was taken), but contend that the ease was a close one and that certain procedural errors caused a miscarriage of justice. The claime...
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This is an appeal from an interlocutory decree of divorce but errors laid to the trial court go to the exercise of its discretion in denying plaintiff-appellant’s motion for a new trial. Plaintiff wife brought an action for divorce and defendant husband filed a cross-complaint seeking like relief. When the matter came on for trial counsel for the parties met with the judge in chambers, aft...
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The Los Angeles County Grand Jury returned an indictment in which defendant Burnell Joseph Harris was charged with agreeing to sell, deliver, or furnish, a narcotic, to wit, cocaine, to Lionel Robert, and selling, furnishing, or delivering to the same Lionel Robert a nonnarcotic substance in lieu of the narcotic in violation of section 11503 of the Health and Safety Code. The indictment alleged a...
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The plaintiff and appellant, Elsie Huselton, brought this action to recover damages for personal injuries suffered by her when she fell on May 21, 1959, upon premises controlled by the defendants and respondents. The action was tried before a jury; a motion for a directed verdict was denied, and the jury brought in a verdict in favor of the plaintiff. The defendants then moved for a judgment notw...
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The plaintiff and appellant brought an action to recover the sum of $20,000 upon a written instrument dated May 22, 1959, signed by plaintiff. This instrument, although informally worded, is in effect a nonnegotiable promissory note. The defendant admitted the execution and consideration of the note but denied that there was anything due thereon. The defense was based upon the contention that a...
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The parties hereto are husband and wife. The husband filed an action for divorce upon the ground of extreme cruelty. The parties were married in October 1956 and separated in June 1961. The defendant wife filed an answer denying the allegations of cruelty and taking issue as to the extent of the community property. She also filed a cross-complaint for separate maintenance on the ground of extreme ...
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The defendant was charged with escape from a state prison camp, i.e., a violation of section 4531 of the Penal Code; was tried by a jury and convicted; moved for a new trial, which was denied; was sentenced to imprisonment in the state prison; appeals from the order denying his motion for a new trial, and the judgment; claims that he is not the person who committed the subject offense; and conten...
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Petitioner appeals from the order and judgment of the superior court denying a writ of mandate to restore him to his previous civil service position as ambulance driver for the San Francisco Department of Public Health. *402 By letter dated July 10, 1959, the director of public health summoned petitioner to appear before him, at a public hearing, on July 17, 1959, at 10 a.m., to show cause wh...
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Defendants appeal from an order made by the trial court, striking out an exception in the description of real property contained in the summons, complaint, interlocutory decree, and final order of condemnation. Defendants were the owners of a parcel of land consisting of 13.215 acres, which plaintiff condemned for use as a site for its high school. The complaint first correctly described the full ...
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Defendant Petra N. Islas appeals from a judgment in favor of plaintiff in a suit brought to determine the ownership of certain real property and to obtain declaratory relief. Plaintiff also was granted a writ of possession and an award of damages for the reasonable rental value of the property for the period during which appellant remained in possession. The complaint alleges in substance: that...
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Defendants Cannon-Schaefer Agency, a copartnership, and Fred J. Cannon, one of the partners, appeal from summary judgment rendered against them in favor of plaintiffs Meyer Koulish Co., Inc., and Arthur Nass, respectively. Defendants were manufacturers’ agents. Plaintiffs separately shipped certain jewelry from New York to Los Angeles on consignment to defendant Cannon-Schaefer Agency ...
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Defendant Andrew Castulo Perez was convicted after trial by the court of possession of marijuana in violation of section 11530 of the Health and Safety Code. Defendant was also found to have been convicted of a prior felony—violation of section 11500 of the Health and Safety Code. The ease was submitted on the preliminary transcript with each side offering additional evidence. A motion for...
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Defendant Albert Betres Barboza was convicted after jury trial of selling a narcotic on or about January 22, 1962, in violation of section 11501 of the Health and Safety Code. He admitted four prior felony convictions. The defendant’s motions for a probation report and for a new trial were denied, and he was sentenced to the state prison *443for the term prescribed by law. Defendant appeals from t...
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This is an appeal by the People from the order granting defendant’s motion under section 995 of the Penal Code to set aside the information. Defendant was charged by information with two counts of forgery in violation of Penal Code section 470, a felony. The charges arose out of defendant’s alleged use of an oil company credit card on two occasions without the knowledge or permission of th...
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This is a petition for a writ of prohibition directed to the Superior Court of the State of California for the County of Merced restraining and prohibiting Judge Gregory P. Maushart from hearing any matter and making any order in the aforesaid action and from enforcing any temporary restraining order and preliminary injunction issued in said action and for all other proper relief. Petition...
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This is an eminent domain proceeding brought to acquire for highway purposes certain real property and improvements owned by the appellant Hayward Building Materials Co. The property condemned, referred to in this proceeding as parcel 25, has an area of 18,992 square feet. It is part of a larger parcel owned by appellant, the total area of which is 84,898 square feet. The remainder, not acquire...
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Plaintiff appeals from judgment of dismissal entered upon sustaining of demurrer to his first amended complaint. Despite its designation, this is the third pleading filed by plaintiff. Plaintiff, a civil service toll collector, has appeared without counsel throughout. His pleading is diffuse. His basic grievance concerns a 1958 examination conducted by the State Personnel Board for promotion to...
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The problem in this case is that of applicability of the statute of limitations to an amended complaint, as pleaded by a defendant who plaintiff contends was a fictitiously designated party in the first complaint. On August 26, 1958, plaintiff filed an action for damages against a school district of which she had been superintendent and against several public officials, some of whom were o...
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In an amended information filed by the District Attorney of Los Angeles County, defendant was charged with the crimes of burglary, grand theft, and receiving stolen property. The information further alleged four prior felony convictions. Defendant entered a plea of not guilty and denied the prior convictions. Later, the defendant entered a plea of guilty to count III, receiving stolen property, an...
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This is a proceeding in eminent domain whereby the People of the state, acting by and through the Department of Public Works, condemned real property in Riverside County for freeway purposes. The action involved many parcels of property owned by various owners. Property owned by the defendants and respondents, Felice and Laura Lipari, was designated in the complaint as parcels 37 and 37A throug...
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This is an appeal from an order denying a motion for a change of venue entered while the law permitting the taking of such an appeal was in effect, i.e., before the 1961 amendment of section 963 of the Code of Civil Procedure. The plaintiff-corporation, respondent herein, purchased a wire fabric welder from the defendant-corporation, appellant herein; by this action seeks to recover damages on ...
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The plaintiff and appellant, appearing individually and as administratrix of the estate of her deceased husband, brought this action in the nature of a stockholders’ derivative suit to establish that certain mining claims were subject to a trust in favor of California Silver Corporation, a corporation. In substance, plaintiff claimed that defendant Julius A. Paskan was president and director of...
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The plaintiff, John F. Dreybus, brought this action to recover damages for personal injuries alleged to be the proximate result of the collapse of crutches sold to him by the defendant partnership doing business as Bayless Rents. He alleged that the crutches were defective and he predicated his cause of action both upon breach of warranty and upon negligence. The defendant partnership answered ...
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The judgment appealed from in consoli *511 dated cases centers about the delivery by Automatic Poultry Feeder Company, a corporation, to Mr. and Mrs. Wedel of certain feeding machinery for use on their poultry farm near Groveland. Robert J. Wedel, in turn sued the Automatic Poultry Feeder Company and its agent, Paul Ter A vest, for damages allegedly caused by the failure of the ma...
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This is an appeal from a judgment of conviction on a charge of attempting to receive stolen property. (Pen. Code, § 664.) The Record The facts are undisputed. The appellant approached an employee of the Pacific Telephone and Telegraph Company (hereinafter referred to as Telephone Company), and sought to purchase from him certain confidential listings of new telephone subscribers for the San...
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Petitioners appeal from an order quashing the writ of certiorari whereby they sought to review the action of respondent Board of Supervisors of the County of Los Angeles in the formation of the Los Angeles County Waterworks District No. 33. The petition for the formation of said district was filed with *525the board of supervisors on February 15, 1961, in eight parts. Bach part had attached to it ...
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Defendant Homer Cook has appealed from that provision of the judgment that denied him any relief on his cross-complaint and also from those provi *528 sions of the judgment that tied his hands so that in the future he can never make any use of the five promissory notes that were the main basis of his cross-complaint. We have concluded that because of his breach of the contract of which the prom...
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By indictment defendant was charged with selling narcotics, heroin, in violation of section 11501 of the Health and Safety Code. Defendant entered a plea of not guilty. Trial was by the court, defendant personally and all counsel having waived trial by jury. Defendant was found guilty as charged. Probation and defendant’s motion for new trial were denied and defendant was sentenced to state prison...
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Appellant, who was charged with of section 11530 of the Health and Safety Code, by possession of marijuana, contends that the search of his person, which produced a marijuana cigarette from his pocket, was illegal. Officers had arranged a meeting between and a decoy for the officers, to take place in a school *536 where the decoy was employed as a janitor. The officers did not see a meeting bet...
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The defendant was first indicted for a violation of Health and Safety Code section 11501. The indictment was in two counts—the first charged a sale of narcotics, and the second charged an offer to sell or furnish narcotics. The defendant was also charged with two prior felony convictions, one for burglary and the other for possession of narcotics. Later, the defendant was indicted for a violati...
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Appellant, the insured under a policy issued by respondent company, appeals from an order setting aside an arbitration award in her favor. On November 5, 1960, appellant was injured in an automobile accident with an uninsured motorist, Bruno Muehlmann. In effect on that date was a contract of automobile insurance between appellant and respondent Travelers Indemnity Co., which policy, in accord ...
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This is an appeal by defendant from an order: (1) relating to his visitation rights with the minor child of the parties; (2) requiring increased child support payments; and (3) holding defendant in contempt for: (a) failure to keep in force a certain insurance policy on his life, in which the child was named beneficiary; and (b) for his failure to make certain past due child support payments. P...
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Edward Lopez Rodriquez, Jr., and Eugene Vasquez were charged with the crime of conspiracy to violate section 11501 of the Health and Safety Code. The information, in count I, charged that the defendants “did willfully, unlawfully and feloniously conspire, combine, and agree together and with other persons whose names and identities are at the time of this filing of this complaint, unknown, to sel...
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Defendant was charged in an information filed by the District Attorney of Los Angeles County with grand theft in violation of Penal Code section 487. It was alleged that on or about January 18, 1962, defendant took four Zenith television sets, having a total value of $760, from Sues, Young & Brown, Inc., a Zenith wholesale distributor. Defendant pleaded not guilty. After trial by jury defendant wa...
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Defendant appeals from judgment (after jury verdict) of conviction of first degree robbery (violation of Pen. Code, § 211) and purports to appeal from the order denying new trial. 1 Question Presented Should the trial court on its own motion have instructed on (a) identification, (b) alibi? Record Shortly past midnight on February 9, 1962, Mrs. Kathryn Banchero, a clerk in a liquor stor...
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Defendant appeals from a judgment of $5,280, entered upon an adverse jury verdict in a personal injury action brought by a passenger riding on a free pass in a single, self-propelled diesel passenger unit known as a “Budd car.” Defendant also appeals from an order denying its motion for judgment notwithstanding the verdict. The unit is hereafter referred to as “the train.” The pass had on its b...
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Defendants City Title and Peninsula Title appeal from a judgment of $1,038.70 entered herein in favor of plaintiff and against defendants. The two defendants are treated herein as one entity and will be referred to as “the title company.” Plaintiff is a real estate broker. He acted as such for one Maneuso and his wife in the sale of two parcels of land owned by them. The nominal purchaser ...
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Defendant was convicted of hit and run in violation of section 20001, Vehicle Code; a probation report was ordered and the cause continued. A judge other than the one before whom defendant was tried heard his application for probation, denied the same and sentenced him to the state prison. He appeals from the judgment and sentence. While the sole issue is whether it was error for one other than t...
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This appeal is taken by Wynne A. Savage, Real Estate Commissioner of the State of California, from an order denying his motion to tax costs. The appeal is presented upon a settled statement, wherein the determinative issue is stated as follows: “The sole ground of said motion and of this appeal is [ap: pellant’s] contention that the cost of $546.80 for carbon copies for petitioner’s office...
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In an action brought under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, plaintiff appeals from a judgment in his favor in the sum of $1,504.92. Questions Presented 1. Is the finding of contributory negligence supported? 2. Are the damages inadequate? Record The rule of comparative negligence obtains in this action. Plaintiff, a longshoreman, was injured by being struc...
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A jury found each of two defendant brothers guilty of two counts of burglary. Each appeals from the ensuing judgment, and we appointed attorneys to represent them separately. At about 4 a.m., the Villa Roma bar in San Jose was entered by forcing a fiberboard panel. Inside the establishment, two office doors had been pried open and marks of a screwdriver *608 and pry bar were left thereon. One...
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Leave of court having been granted ex parte, Farmers Insurance Exchange filed its complaint in intervention some three months after its insured, Mr. Hausmann, had instituted an action against the defendants Gattenio for personal injuries to himself and his family as well as property damage to his automobile. An answer to Farmers’ pleading was filed by the Gattenios. The Hausmanns, however, demurr...
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Defendant was found guilty of violating section 11530, Health and Safety Code (possession of marijuana). She has appealed. At about 1 a.m. on March 23, 1962, Los Angeles Police Officers Allen and Gates observed defendant come out of a bar on Figueroa Street and enter an unoccupied 1961 Ford convertible which had its top up. It was parked “approximately at 11th Street.” When she started the car ...
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Although denominated an action for declaratory relief and damages for breach of contract this is a simple suit for money and was tried as such. Walter 0. Lindley, the only interested plaintiff, recovered judgment of $9,291.90, consisting of three sums, separately earned, as a salesman for Sawyer Cabinet Company. Defendant appeals. Walter was in the employ of Sawyer from 1948 to November 1957 as a ...
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This appeal presents the not unfamiliar, but always delicate, problem of the defendant who discharges his counsel early in the proceedings and then, in the face of overwhelming evidence of guilt, contends that he has been denied due process of law. *630 The evidence shows that defendant conceived a plan: to pass forged Western Union money orders, and enlisted two confederates to carry out the...
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This is an appeal from an order of the probate court setting aside an order granting appellant a family allowance from the estate of her deceased husband. The respondent has moved to dismiss the appeal on the ground that the appellant has rendered the appeal moot by reason of the filing by her of a second petition for family allowance. The Record On May 22, 1961, appellant, Rose Hoffman, pr...
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This is an appeal from an order restraining and enjoining Flehr and Swain, a law firm, and Paul D. Flehr, one of its members, from appearing or acting herein as attorneys for appellant in this action and from disclosing any confidential and privileged information acquired during the period from October 1956, to August 1, 1960, when Flehr and his firm served as the attorneys for respo...
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This appeal is from a judgment voiding a property settlement agreement, and setting aside that portion of a final decree of divorce approving said property settlement agreement entered in the First Judicial District Court of the State of Nevada. Stavros and Bessie Protopappas were married in the State of Utah in 1941. Thereafter they moved to California, where they accumulated community pr...
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By an indictment the defendant Lopez was accused of the crime of violation of section 11503 of the Health and Safety Code. 1 It was also alleged that at a time prior to that offense he had been convicted of the crime of violation of section 11500 of the Health and Safety Code, a misdemeanor. In a jury trial, in which he was represented by a deputy public defender, he was found guilty. At the ti...
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The defendant Cross entered a plea of guilty to two counts of an indictment, each count charging the commission of the crime of abortion. (Pen. Code, § 274.) Probation was denied and the defendant was sentenced to be punished by imprisonment in the state prison for the term prescribed by law, the sentences to run concurrently. The remaining counts of the indictment were dismissed insofar as the d...
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Defendant, a corporation which operated an on-sale liquor establishment, was tried before a jury and convicted of offering for sale and keeping for sale two bottles of whisky which had been refilled or partly refilled in violation of subdivision (a) of section 26517 of the Health and Safety Code.1 Defendant appealed to the appellate department of the superior court, which affirmed by a divided cou...
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In this condemnation action, after a verdict was returned awarding defendant $707,780 as compensation and damages, the plaintiff abandoned the proceeding and, upon its motion, judgment of dismissal was entered. Defendant filed its memorandum of costs and disbursements in the amount of $153,565.43, which included $125,-000 as attorneys’ fees. After a hearing upon plaintiff’s motion to ...
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Plaintiff brought an action against defendant corporation for injuries allegedly sustained while attempting to board a public bus operated by defendant. Trial resulted in a jury verdict for defendant. Plaintiff appeals from the judgment, contending that a miscarriage of justice resulted from: (1) misconduct on the part of a juror and an agent of defendant; (2) misconduct on the part of defendant’...
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Defendant appeals from a judgment entered after a non jury trial, convicting him of possession of heroin for purpose of sale in violation of section 11500.5 of the Health and Safety Code. 1 We shall recite the essential facts reflected by the record viewed in the light most favorable to the respondent as required by the familiar rule. On December 27, 1961, Officer John Hanks of the Los Angele...
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This is a rear-end collision case in which a jury returned a verdict for the defense. Plaintiff was the owner and driver of the front car. Defendant was the owner of the rear vehicle. It is undisputed that plaintiff was eastbound on Adams Boulevard when he stopped to yield the right-of-way to a pedestrian in a marked crosswalk, and that the front end of defendant’s vehicle collided with the rear o...
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The defendant, Housing Authority of Los Angeles County, made a motion for judgment on the pleadings, which was granted. The plaintiff has appealed from the ensuing judgment. The action was filed on December 21, 1960. It is one to recover damages for personal injuries alleged to have been suffered by the plaintiff on or about April 9, 1960, as the result of the defendant’s negligence. The c...
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The present litigation represents one *720 phase of the same hostilities which produced our decision in Estate of Fritschi, * (Cal.App.) 28 Cal.Rptr. 86. Plaintiff Rose Marie Fritschi and Dr. Fritschi had married in 1934 and received an interlocutory decree of divorce in April 1958. At the time of their divorce they were the parents of two teen-age sons. For sever...
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In this action for damages for fraud brought against the sellers of certain real property and the real estate broker representing them, plaintiffs appeal from a judgment for the defendant broker entered after the sustaining of his demurrer without leave to amend. The complaint filed February 13, 1962, alleges in substance as follows: That plaintiffs are and, at all times since July 10, 196...
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In this action upon a rejected creditor’s claim for reasonable value of services performed for the deceased, testimony of plaintiff’s husband was ruled inadmissible by the trial court under the provisions of the dead man statute (Code Civ. Proe., § 1880, subd. 3), * an agreement signed by the husband on the date of the trial but prior to the proffered testimony, that the claim and al...
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This is an application for a writ of man *749 date to require the trial court to grant a motion to quash service of summons. Petitioner, a resident of Arizona, was a defendant in an action heretofore pending in the Superior Court, County of Los Angeles, denominated Newfield v. Seeburg Distributing Co., being proceeding numbered 749051 in the files of that...
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I concur in the determination that each judgment of conviction must be affirmed. However, in my judgment an erroneous answer was given by the court to the jury in response to the jury’s question as to whether “a second degree verdict on count 1,” the murder charge, would “contradict the guilty verdict on count 2 [the conspiracy charge] of one defendant while the other defendant is found guilty of ...
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The lower court consolidated Burge v. Michael, No. 56304, and Michael v. Burge, No. 59350, for trial. Since the cases are in no way related except that the people involved are the same, they must be treated as though separate appeals had been taken. Burge v. Michael, No. 56304 The business transactions involved in this case arose from the unusual circumstances of an accountant financing his client...
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This is an appeal from an order increasing child support payments and awarding counsel fees. Question Presented Did the trial court abuse its discretion in making the order appealed from? *795 The Record The instant proceedings arise out of a motion filed on September 12, 1961, seeking an increase in child support payments from $50 per month to $250, security for future child suppor...
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This is an appeal by Rose Hoffman, hereinafter referred to as appellant, from a summary judgment in favor of Jennie Goldstein and Gussie Zeman, hereinafter referred to as the respondents. Samuel Zeman, the executor of the last will and testament of Samuel Hoffman, hereinafter referred to as the executor, has been designated as a respondent on this appeal and has filed a brief herein as such. ...
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This is an appeal from a judgment based upon a jury verdict awarding respondent $18,000 damages for failure of appellants to restore respondent to union membership, and for mental pain, suffering, and humiliation, and from an order denying appellants' motion for judgment notwithstanding the verdict. The litigation between the parties has a considerable history. The relevant facts are here ...
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The question here is whether the one-year statute of limitations (Code Civ. Proe., § 340, subd. 3, or the two-year provision (Code Civ. Proe., § 339, subd. 1), applies to an action for malicious prosecution. Plaintiff department sued to recover costs of care of defendants, husband and wife, during their separate commitments to Napa State Hospital. Defendants cross-complained, joining with ...
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Oviatt Building Associates, a limited partnership, sued Ralph M. Parsons, doing business as The Ralph M. Parsons Company, for unpaid rent accrued under an oral agreement for rental of space by defendant in the Oviatt Building in downtown Los Angeles. Defendant moved to dismiss the third amended complaint and the action as sham, fictitious, and frivolous; also for entry of summary judgment in hi...
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This is an action based on repudiation of an oral agreement alleged to have been made by defendant to pay $7,768.13 to plaintiff in consideration of the latter’s dis *847 missal of an action against a third party pending in a federal district court. The cause was tried and a jury gave its verdict for plaintiff. Thereupon defendant moved the court alternatively for judgment notwiths...
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Defendant was tried before a jury on the charge that he had violated Yehicle Code section 23105 by driving a vehicle upon a highway while under the influence of narcotic drugs. There was a guilty verdict and he appeals from the judgment. On January 9, 1962, at approximately 1 p.m. a Stockton police officer stopped defendant’s vehicle after observing him driving at a speed of 35 to 40 miles per ...
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This is an appeal by Clyde Steele, as administrator of the estate of James D. Steele, from a judgment in favor of the defendant, Robert Hash, in a wrongful death action. The accident resulting in Steele’s death occurred on December 5, 1958, while he was riding as a passenger in the automobile of one Ralph Adams. On the morning of the accident, Adams and Steele were proceeding across Highway 299...
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This is an appeal from a judgment for plaintiffs in an action for damages for wrongful death and personal injuries. Plaintiffs are Rose Delgado, the surviving wife and administratrix of the Estate of Fortunato C. Delgado, and Jess L. Martinez. Delgado was killed and Martinez injured when the sides of a sewer trench collapsed. Delgado and Martinez were the employees of a subcontractor, retained ...
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This is an appeal from a judgment in favor of the respondent, Florence E. Vassallo, for personal-injuries sustained when a bottle of milk delivered by the appel *13 lants broke in her hands. The complaint alleged two causes of action: the first based on the negligence of the appellants ; the second cause on breach of implied warranty. The trial court, sitting without a jury, found ...
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Plaintiff filed an action alleging negligence and seeking damages for personal injuries sustained in a rear end type automobile collision. The case was submitted to the jury on the issues of negligence, proximate cause, contributory negligence and damages. The jury returned a verdict in favor of defendant. The specific injury for which plaintiff seeks damages is the detachment of the retina which ...
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Plaintiffs, coproducers of a motion picture, brought this suit to enjoin, as unfair competition, use by defendants of an advertising slogan which plaintiffs claim trades and capitalizes on advance publicity covering the title they have adopted for their picture. Defendants’ slogan is designed to advertise a picture arising from the same subject matter as plaintiffs’ picture. The complaint also ...
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In an amended information filed by the District Attorney of Los Angeles County, defendant was charged in Count I with committing an assault with a deadly weapon in violation of Penal Code section 245; in Count II with kidnapping for the purpose of robbery, in violation of Penal Code section 209; and in Counts III and IV with robbery, in violation of section 211 of the Penal Code. Count I was dism...
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Plaintiffs, John Raymond McCarty and Helen McCarty, filed an action to quiet title to an easement *42 over the land of defendant and for a mandatory injunction requiring defendant to remove certain obstructions placed by her on the road in question and also for damages caused by the barricading of such road. The trial court found that “at the time that plaintiffs purchased said real property fr...
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The plaintiff Cowan, who is the appellant herein, was a passenger in an automobile driven by the defendant Braden, who is one of the respondents herein; was injured when that automobile collided with an automobile driven by the defendant Bunce, who is the other respondent herein ; brought this action to recover damages on account of such injuries ; charged the driver of the automobile in which ...
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Defendant-appellant was charged with and convicted by a jury of selling heroin, in violation of Health and Safety Code, section 11501. He admitted three prior felony convictions; two for burglary, for which he served separate terms in Texas, and one for possession of a narcotic, for which he served a term in Chino State Prison. He was represented by counsel at the trial. He appealed from the judgm...
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Appellant, Royal Indemnity Company, an insurance carrier, brought action against the respondent, Security Truck Lines (hereafter referred to as Security), to recover moneys paid by appellant to its insured, General Petroleum Corporation (hereafter referred to as General Petroleum), for the replacement of a sign at a gasoline service station located on U.S. Highway 101 in Laytonville, California...
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This is an appeal by the defendants from a judgment of $40,000 rendered on a jury verdict in favor of the plaintiff, Leona Seckler, in a wrongful death action. The plaintiff’s son, Howard P. Seckler, the decedent, was working for the defendants as an independent contractor. The defendants, Joseph and Robert Yamin, residents of Texas, doing business as partners in Acme Building Sales, were the s...
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Plaintiffs-appellants, husband and wife, first filed this action in Los Angeles County on July 29, 1960, alleging a claimed cause of action against defendants T. A. Glenn, Glenn Construction, Inc., Don Oakes, Don Oakes Lumber Company, a bank, and several John Does. They were served with process. On a motion for change of venue by them, the action was transferred to San Bernardino County on Februar...
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This is an appeal by defendant landowners, D. Owen Alexander and Perle Alexander, from a judgment of $37,400 in their favor in a condemnation suit. The action was commenced by the State of California acting through the Department of Public Works for the acquisition of access rights only from and to a 17.8-acre parcel of land owned by the Alexanders and situated at the northeast corner of the in...
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Defendant doctor appeals from an order granting motion for a new trial after defense verdict in a malpractice action. Plaintiffs are husband and wife and their interests are identical insofar as this appeal is concerned. For convenience, Aliene Runyan, who was defendant’s patient, is hereafter referred to as “plaintiff.” Defendant performed a partial hysterectomy upon plaintiff for re...
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This is an appeal by the Department of Alcoholic Beverage Control (hereinafter called the Department) through its director, Malcom E. Harris, from a judgment of the trial court denying a petition for a writ of mandate or writ of certiorari, and discharging an alternative writ of mandate, directing the Alcoholic Beverage Control Appeals Board (hereinafter called the Appeals Board) to reverse its d...
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Petitioner Spalding G. Wathen seeks a writ of mandate in an action for breach of contract to compel the respondent Superior Court to change the place of trial thereof from Santa Clara County to Fresno County. McMillan Mortgage Co., a corporation (hereinafter called McMillan), the real party in interest herein and the plaintiff below, commenced the above action against petitioner and Wathen Brot...
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Plaintiff, Superintendent of Banks appeals from judgments rendered in three consolidated actions refusing to enjoin defendants from engaging in the business of transmitting moneys from the United States to the Philippines. In 1960, plaintiff commenced three separate actions for injunctions under Financial Code, section 3395, against defendants Jaime Catuira and Catuira and Associates, Inc.; aga...
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Appellant Bank of America filed this action against respondents Hutchinson to recover $20,000, the amount of a promissory note of which said respondents were the makers and said bank the payee. Respondents filed a cross-complaint against the bank, joining as additional cross-defendants the appellant Coates, one of the bank’s branch managers, and one Alexander T. Chohon. By their cross-complaint...
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Defendant was convicted of violating section 11500, Health and Safety Code (possession of heroin). He has appealed from the judgment. Narcotic Agent Diaz, accompanied by Agent Pizzo, went to a hotel at 148 South Figueroa Street in Los Angeles to make a narcotics investigation. They had been informed by Agent Velasquez that defendant Collins, who lived there, was engaged in narcotics activity. T...
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Grace S. Van Der Oef appeals from an order in probate denying her petition for a family allowance from the estate of her deceased husband. She sought an allowance of $350 per month for her support and $350 as attorneys’ fees “as a part of her support.” Petitioner was living with and supported by her husband at the time of his death. There are ample assets in the estate to meet her demands ...
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The County of Los Angeles brought an action against the City of Los Angeles wherein it sought a declaration that the county is not bound to comply with certain ordinances of the city in the course of its activities within the city’s territorial limits. The determination by the trial court of the issues raised by the pleadings was adverse to the contentions of the county and the county has appea...
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On September 12, 1958, plaintiff-appellant Roy Bristow and his Avife, Ettie May Bristow, were riding as guests in a Ford automobile owned and operated by defendant-respondent Thomas P. Bristow, the brother of Roy Bristow. At the intersection of Fairhaven Avenue and State Highway 55 (or Tustin Avenue), this car collided with a Cadillac automobile operated by defendant-respondent Marjorie Brinson a...
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This is an appeal from a judgment after order sustaining a general demurrer without leave to amend. The plaintiff, who is the appellant herein, by a first amended complaint as to a third cause of action against the City of Fontana and its council, the defendants and respondents herein, alleged: That, in 1954, the defendants employed Kroeger Associates to propose a classification and pay pl...
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Plaintiff Donata Visini brought this action to obtain a divorce upon the ground of extreme cruelty. Defendant Antonio Visini cross-complained for a divorce upon the same ground. After trial the court rendered its interlocutory judgment granting defendant the divorce; awarding custody of the parties’ two minor children to plaintiff, with defendant being ordered to pay $75 per month for the suppo...
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Plaintiff, appellant, brought this action for personal injuries arising from an accident in which she was driving respondent’s automobile, and respondent cross-complained for damages to the vehicle. The jury’s verdict was that neither party is entitled to damages. Plaintiff moved for new trial; the motion was denied by operation of law when the court did not grant it within the statutory period. T...
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In this divorce action, plaintiff (wife) appeals from an order granting defendant's motion to set aside his default. Defendant appeals from an order that he pay $1,500 as attorney’s fees to plaintiff’s attorney for services in resisting the motion. On August 22, 1958, the parties made an antenuptial agreement which provided, in part, that each one should continue to own his or her separate prop...
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Four men, Keller, McGowan, Bullard and Jones, were charged with conspiracy to commit burglary (Pen. Code, §§ 182 and 459) and attempted burglary (Pen. Code, §§ 459 and 664). Both counts relate to an attempted entry of Richard’s Men’s Clothing Store in Ventura during the early morning of February 7, 1961. Bullard failed to appear for *212 trial. The other three were tried before a jury which fou...
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Jointly charged with one Sheremeta, Marie Jane Russell was convicted in a non jury trial of three offenses of forgery; the case was tried upon the evidence adduced at *223the preliminary hearing. Appellant did not testify or offer other evidence. She applied for probation, which was denied, was sentenced to state prison and appeals from the judgment. Evidence was produced of the following facts. T...
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Plaintiff Donald S. Borden, a licensed real estate broker, commenced an action to recover a $12,500 real estate sale commission claimed under a written selling authorization signed by defendant. Issue was joined and the case was tried by the court sitting without a jury. Judgment was rendered in favor of defendant, and plaintiff has appealed from said judgment. The principal contention made by app...
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This is an appeal from a summary judgment. Plaintiff’s complaint alleged: On April 1, 1959, plaintiff was employed as a sawyer at a sawmill. For a long time prior to that date, defendants were the owners of the real property upon which the sawmill was located and, prior to the accident which occurred on that date, had leased the real property to a firm known as Caffey and Rice, with knowledge t...
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On September 7, 1961, Vernon E. Jeffries, an investigator for the District Attorney of San Joaquin County signed a petition, alleging that appellant was believed to be mentally ill and in need of supervision, care or restraint. Thereafter, after proceedings commenced under the Welfare and Institutions Code, sections 5047 et seq., duly appointed medical examiners appointed by the Superior Court of ...
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The plaintiff-appellant in this action seeks a declaratory relief judgment and damages for breach of contract. The action originally involved three defendants other than the respondents before this court, but a summary judgment was granted in their favor. The action came to trial on August 2, 1961. A jury had theretofore been requested and was present in court. At the time set for trial, Mr. Gord...
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The complaint in this action was filed July 14, 1961 and shows on its face that it was prepared for filing the previous day. Plaintiff sought to recover upon a note dated November 10, *242 1960, in the amount of $245,000, payable to James M. Banister and Helen G. Banister, and which provided for payments of $750 per month, payable on the 11th day of each calendar month. After ...
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The petitioner sought a writ of mandate in this proceeding and upon a denial thereof this appeal was taken. It appears that petitioners owned a parcel of real property in an unincorporated area of Orange County. The property is zoned under the county zoning ordinance. In 1955 petitioners sought a building permit from the county in order to construct a garage building upon their property. This perm...
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This appeal is from a judgment rendered August 23, 1961, for specific performance of a contract by which defendant and appellant Connie C. Chandler agreed to sell certain real property located in Orange County. By the terms of that decree it was ordered that appellant execute a proper conveyance of the property; that respondents pay into escrow funds as required by the contract of sale and execut...
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This appeal originated in a suit for damages for personal injuries sustained in an automobile collision oceuring at approximately 7:10 a.m. on December 14, 1960, between the car which plaintiff-appellant Fred Johnson was *257 driving and a car belonging to and being driven by defendant Delbert Turner Eaton. The complaint alleged that Eaton, at the time of the collision, was th...
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This is an appeal from a judgment for plaintiff in the net sum of $2,775 in an action for.personal services; the case was tried by the court without a jury. Plaintiff sought to recover the reasonable value of personal services rendered to the defendant for the period beginning January 10, 1958, and ending March 6, 1959. During this time the defendant owned and operated a rock and gravel an...
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Appellant, as chairman of respondent Housing Authority of the County of Kings,, was ordered by a peremptory writ of mandate to execute a housing cooperation agreement with the City of Hanford, County of Kings. The city chose to join in a countywide housing development plan under the county housing authority rather than establish a separate city housing authority. For the city to participate with t...
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This is an appeal from judgments approving the account of an executor, for preliminary distribution and related orders in a testate probate proceeding. The judgments appealed from, among other things, directed a preliminary distribution of equal one-third shares of specified property to each of two of decedent’s three daughters and denied distribution of the remaining one-third share to the truste...
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The appellant was charged by an information with the crime of violation of section 211 of the Penal Code, a felony, in that he and codefendant Vargas did wilfully and unlawfully rob a drugstore proprietor of narcotics and money. At the time of the offense, Vargas was armed with a .32 caliber automatic pistol and appellant was standing outside the store. Appellant was represented by counsel thro...
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An undercover agent for the Bureau of Narcotic Enforcement, while walking the streets in Pittsburg, California, in the company of a man from whom he had made narcotics purchases, but who did not know him to be an agent, met appellant at about midnight. The other man asked appellant, in the parlance of narcotics users, if he had any marijuana. Appellant replied “no” but to see him *306later. When t...
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This is an action brought under section 3 of the Usury Law 1 to recover treble damages for interest paid. After a trial without a jury the court gave judgment in favor of all defendants. Thereafter the court granted plaintiff’s motion for a new trial, specifying insufficiency of the evidence as one of the grounds for the ruling. Defendants have appealed from the order granting a new trial and p...
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The plaintiff, L. E. Service, appeals from a judgment denying recovery in an action for conversion. There is little or no conflict in the evidence; the court’s decision, therefore, is based on its view of the law as applicable to established facts. On May 23, 1956, L. E. Service secured a writ of execution in an action entitled “L. E. Service v. Joe D. Trombetta et al.,” ...
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Plaintiff appeals from an adverse summary judgment. Question Presented1 Were there any issues of fact to be tried? This depends upon whether plaintiff is entitled to attack in this action the dismissal of a prior action between the same parties for the same relief. Record November 1, 1960, plaintiff commenced this action to quiet title to real property. His complaint alleged the same claim and pra...
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This is an appeal by both parties to this litigation. The defendant, City of Fairfax, hereinafter sometimes referred to as the City, has appealed from the judgment and from the order after judgment for partial satisfaction of judgment and permanent injunction. The plaintiff, Elsie Frustuck, hereinafter sometimes referred to as Frustuck, has appealed from the said order after judgment. *...
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This is an appeal by the husband from an order which in effect modified a previous order or orders for the support and maintenance of the wife in a divorce action, and further ordered the husband to pay an additional attorney’s fees and costs on an appeal. On May 26,1960, after a full hearing the court ordered that the custody of the two minor children of the parties be awarded to the wife with...
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This is an appeal from a judgment entered after a motion for summary judgment was granted in favor of respondent, decreeing that appellant take nothing by its cross-complaint. The chronology of events is as follows: On October 10, 1961, cross-complainant (hereinafter sometimes referred to as appellant) filed its cross-complaint for breach of contract and upon written indemnity agreeme...
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The appeals by defendant in this case are from “the judgment and sentence and the denial of his motion for a new trial” in two separate cases, each involving a charge of possessing a narcotic (marijuana). In our case No. 8181 the defendant, on March 14, 1960, was charged in Los Angeles County in an information with possessing a narcotic. He was found guilty as charged on April 27, 1960. On May 18,...
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A jury found Frank Welch, Jr., who had previously admitted three prior felony convictions, William Gillis and Margaret Morton guilty of second degree robbery. Only Welch appeals. He does not question the sufficiency of the evidence to support the judgment, but contends that he was not properly represented by counsel and that the lower court erred in permitting the prosecution to question him conc...
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Defendant Jesus Alvarez appeals from the judgment of conviction which was rendered against him after a nonjury trial upon an indictment charging the sale of heroin in violation of section 11501 of the Health and *407 Safety Code. The sole assignment of error presented for our consideration is the assertion that prejudicial error was committed when the prosecution was allowed to introduce eviden...
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Appellant was convicted of petty theft with a prior felony conviction, to wit: burglary, in violation of section 667 of the Penal Code. He has appealed from the judgment. In seeking a reversal he makes two contentions: (1) the evidence is insufficient to establish his guilt of petty theft; and (2) the evidence is insufficient to show that he had suffered a prior felony conviction. On January 9, 19...
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Defendant appeals from a conviction, after a jury trial, of violation of Penal Code section 470 (forging or passing a forged cheek). Upon defendant’s request, James D. Walsh, Esq., was appointed counsel to represent him on this appeal. This attorney has advised the court he finds no merit in the appeal. After an independent review of the record, the same conclusion has been reached by the court. ...
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In 1958 defendants and appellants Nee, being the owners of real property in Buena Park, California, entered into a contract with Mr. R. L. DeJager for the construction on their property of an apartment building. Mr. DeJager entered into a contract with J. C. Guiles, named as a defendant herein and who, as subcontractor, undertook to do the plastering in the apartment building for a full contrac...
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We determine here conflicting claims to one-fourth of an award made in condemnation proceedings. The parcel of land involved is presently located in the City of Palo Alto and formerly, before consolidation of the two municipalities, in the town of Mayfield. On August 31, 1867, William Paul as party of the first part conveyed the land to Joseph N. Spencer, George W. La Peire and Alexander Y...
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This is an appeal by the plaintiff, Merlyn Kramer (hereinafter sometimes referred to as Kramer), from a judgment in favor of defendant, Ronald Barnes (hereinafter sometimes referred to as Barnes), pursuant to an order granting said defendant’s motion for a summary judgment. Question Presented Was a triable issue of fact presented to the trial court? The Record The plaintiff ...
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Plaintiff was induced by false representations, made to him by defendant Scannell, to buy 4,000 shares of stock in Sastex Oil & Gas Co. Scannell was employed as an “account executive” or salesman by defendant Hooker & Pay, a stock brokerage firm. Plaintiff purchased the stock in two lots, on November 7, 1956, and November 9, 1956, respectively, at a total cost of $3,606.17. He discovered t...
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Charged with assault with a deadly weapon with intent to commit murder (Pen. Code, § 217), defendant was tried to a jury and found guilty of the lesser included offense of assault with a deadly weapon (Pen. Code, § 245). He appeals from the judgment. The asserted assault was upon defendant’s wife. She testified that he pulled her into the bathroom and struck her on the head with a 11 great big ...
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The trial court found defendant guilty of three counts of bookmaking in violation of subdivisions 1, 2 and 4, section 337a, Penal Code. He appeals from the judgment of conviction and order denying motion for new trial. The issue relates to probable cause. The evidence viewed in a light most favorable to respondent discloses the following: After receiving information from Officer Maga of th...
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In an information filed by the District Attorney of Los Angeles County defendant was charged with four counts of abortion in violation of section 274 of the Penal Code. Defendant was also charged with a prior felony conviction of the crime of abortion. Defendant made a motion pursuant to section 995 of the Penal Code which was denied. Defendant entered a plea of not guilty to the offenses charged...
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Charged in an information with the murder of one Adell Reed and with the prior conviction of two felonies, defendant was found guilty of manslaughter and admitted the conviction of the prior offenses charged. His motion for a new trial was denied and he was sentenced to state prison for the term prescribed by law. We have concluded that none of the contentions made on his behalf on appeal from th...
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In an information filed by the District Attorney of the County of Los Angeles, defendant was charged with violation of section 192 of the Penal Code, manslaughter without malice. Defendant entered a plea of not guilty. Defendant and all counsel waived trial by jury and the matter was tried by the court. The court found defendant guilty of voluntary manslaughter. Probation was denied. Motion for a...
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This action arose out of a transaction on about August 1, 1958, by which defendants sold to plaintiffs real property in the City of Anaheim, improved by a motel, and adjoining real property upon which there was located a residence. The sale was for an agreed cost of $85,000. The plaintiffs brought action to recover damages for fraud; a judgment was rendered in their favor in the amount of $1,133....
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Appellants appeal from a judgment in favor of respondents after a court trial in which appellants sought to enjoin the unlawful extension or enlargement of nonconforming uses and the unlawful rebuilding of demolished nonconforming structures and the relocating thereof by respondents in violation of the City of Fontana zoning ordinance and Uniform Building Code. The first cause of action se...
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The plaintiffs, who, as stockholders in Central California Telephone Company, a California corporation (hereinafter called Central California), instituted this fraud suit against the former directors and majority stockholders of Central Western Corporation (hereinafter called Central Western) and joined Continental Telephone Company, a corporation, which is the surviving constituent corporation...
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Appellants’ liquor license was ordered revoked by the Department of Alcoholic Beverage Control on *517March 9, 1961, to become effective April 20, 1961. Appellants asked for reconsideration, which was denied, and they appealed to the Alcoholic Beverage Control Appeals Board, which affirmed the decision of the department, and so notified appellants on January 23, 1962. On March 7, 1962, appellants ...
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The pleadings disclose the following background. Plaintiff and Jacob Katleman were divorced March 1, 1950, and a property settlement agreement was approved by the decree; Jacob remarried March 2, 1950. On June 15, 1950, he died intestate, a domiciliary of the State of Nevada. On July 6,1950, defendant Liberty Katleman, his widow, and defendant First National Bank of Nevada were appointed coadmini...
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Edward Rodriquez appeals from a conviction, in a nonjury trial, of two counts of violating the Health and Safety Code, section 11500, possession of narcotics. Certain evidence, including two capsules of heroin and a *527 hypodermic needle in a mateheover, was introduced over objection. The evidence was obtained as a result of two separate searches and seizures, about three weeks apart, at the...
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This is an appeal by the plaintiff from a judgment in favor of the defendant in an action to recover damages for injuries resulting from an intersection collision between automobiles driven by them respectively. As grounds for reversal, the plaintiff contends that the court erred in rejecting demonstration evidence and striking part of the testimony of an expert witness, elicited on cross-...
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By a petition to determine heirship, the daughters of Walter L. Vinson, claimed to have been a predeceased spouse of the above decedent (referred to hereinafter as Cleo), sought an interest in her estate under sections 228 and 229 of the Probate Code.1 The appeal is from the order denying that they were entitled so to share. Respondents are Cleo’s sister and nieces and nephews. They contend that W...
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Plaintiff appeals from a judgment denying him the relief sought by him in his complaint alleging fraud and deceit in connection with the sale of certain real property. The first 80 pages of the brief filed by appellant are devoted entirely to the statement of abstract principles of law and to the discussion of matters not embraced within the issues as framed by the pleadings or as stated in the pr...
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The plaintiff and appellant, Nancy Miller, commenced this action against the defendant to recover damages for injuries alleged to have been the proximate result of an electric shock. It developed that in July 1960 the agents of the defendant San Diego Gas and Electric Company had occasion to install a new transformer upon the electric line in Chula Vista from which the Miller home was served. Thi...
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The appellants herein filed their petition in the Superior Court for a writ of mandate to require the Board of Directors of Leucadia County Water District to take the necessary steps for the holding of a referendum by submitting to the voters in the area sought to be included in what is known as Inclusion No. 1, the question of whether the voters would approve or veto such inclusion. The substa...
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Plaintiff Fidler, by a complaint in five counts, sought recovery of monies said to have been wrongfully withheld by defendant Schiller, a real estate broker. Schiller, by cross-complaint, demanded of Fidler and others the balance of commissions assertedly due him. From a judgment adverse to him on both the complaint and the cross-complaint, Schiller has appealed. He has also noticed an appeal ...
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Plaintiff appeals from a judgment denying the injunctive relief and the damages sought by its complaint alleging unfair competition. It is singular that appellant’s briefs fail to set forth any specific assignment of error. It is not asserted that any error was committed by the court below in the admission or rejection of evidence, nor is there any claim that the evidence is insufficient to susta...
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This is an appeal from a judgment after a jury verdict convicting appellant of manslaughter in violation of Penal Code, section 192, subdivision 3(a) (driving a vehicle with gross negligence). The case arose out of a head-on collision between an automobile driven north by appellant on County Road 102 in Yolo County and a pickup driven south thereon by one Herbert Schuler who was crushed to deat...
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This writ of review was issued to determine whether the Industrial Accident Commission has discretion to reduce a county’s lien for public assistance paid to the injured workman during his disability. *586 Respondent Wilkerson was injured in an industrial accident August 31, 1960. He was awarded compensation for temporary disability, liability for which was terminated as of July 31, 1961. The...
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Action for damages for breach of contract. In a nonjury trial, the judgment was that plaintiff take nothing upon his complaint, and that defendant recover $2,000 upon its counterclaim. Plaintiff appeals from the judgment. Appellant contends that the judgment was not supported by the evidence. Plaintiff is an architect and general contractor. Defendant is a nonprofit corporation engaged in charitab...
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This is an appeal “from that certain Order or Judgment of Dismissal made and entered ... on March 8, 1962 . . . and . . . from that certain Order made and entered . . . on April 19, 1962, refusing to vacate the said Order of the Dismissal hereinabove referred to. . . .” 1 On September 13,1957, defendants filed a demurrer and also a notice of motion to transfer the action to the Santa Monica...
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Plaintiff brought this action to recover $7,000 allegedly due to her as the beneficiary under a contributory group life insurance policy issued by defendant Aetna Life Insurance Company, hereinafter referred to as Aetna, through defendant Southwestern Engineering Co., hereinafter referred to as Sweco. Defendants appeal from a judgment in favor of plaintiff. Carl Eason, the husband of plain...
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This is an action for damages for personal injuries arising out of an automobile accident. Plaintiff Ralph T. Knight, a 14-year old boy, suing through his guardian ad litem, was struck by an automobile which was jointly owned by three persons, Norton Price, Jack Aulstott and defendant Walter Cook. At the time of the accident Price was driving and Aulstott was a passenger. Defendant Cook was not i...
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This is an appeal from a portion of a judgment. Shasta Douglas Oil Company is hereafter referred to as “appellant.” The two respondents are hereafter referred to as “Work.” Appellant sued Work for possession of land and for money due and money misappropriated, totaling over $16,000. Its claims were upheld. Work cross-complained and claimed that by appellant’s violation of California’s Anti...
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The issues on this appeal concern the sufficiency of the pleadings, the findings, and the evidence to support a judgment awarding damages to the plaintiff, the respondent herein, in an action which seems to be founded upon a charge of conspiracy by the defendants, the appellants herein, to convert to their own use personal property belonging to the plaintiff. The nature and extent of the controver...
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Appellant is administrator with the will annexed in the matter of the estate of Dickson A. Boyd, deceased. Boyd’s wife, Cecelia Doyle Boyd, survived him but died while her husband’s estate was in probate. Respondent, Winifred C. Woodruff, is administratrix with the will annexed of her estate. Respondent made claim to most of the husband’s estate upon the ground that it was the separate property...
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Plaintiff obtained a default judgment against defendant, a California corporation. The trial court set aside the default and default judgment on defendant’s motion, and plaintiff appeals. The record discloses these facts: The defendant corporation had designated as its agent to receive service of process one James G. Shaw, 940 East 12th Street, Oakland, California. Plaintiff filed thi...
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Constance Adele Jones, a minor, sues through her guardian ad litem to recover damages for personal injuries received by her while riding as a guest in an automobile driven by defendant Thomas Eugene Ayers on the evening of January 30, 1960. The car belonged to M. C. Bowers, who had given his son Rudolph Bowers express or implied permission to drive it on the occasion in question, and...
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Plaintiff sues defendant Waterbury Construction Company and its surety, Massachusetts Bonding and Insurance Company, for the price of certain millwork and cabinets furnished Waterbury as a general contractor. Waterbury having become insolvent, plaintiff’s action was brought pursuant to Code of Civil Procedure sections 1190.1 and 1192.1. In response to counsel’s request a separate hearing was he...
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Defendant corporation is owner of the Penn Mine, which lies adjacent to the Mokelumne River in Calaveras County, a few miles below Pardee Dam. The Attorney General sues it in the name of the People, seeking abatement of a public nuisance caused by drainage of toxic mine wastes into the river and resulting damage to fish life. Defendant demurred generally and on the ground of lack of subject-mat...
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Defendant Ruth E. Jackson (hereinafter “Seller”) appeals from a judgment for plaintiffs Ruppert (hereinafter “Buyers”) decreeing specific performance of a contract of sale of real property. Buyers by their complaint sued upon a “deposit receipt” which they alleged constituted an agreement by which Seller agreed to sell certain real property to them for $32,500. They alleged that they had o...
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This is an appeal from an order retaxing costs. Victor Bennett brought an action against Bernard Francis Brown to recover damages for personal injuries incurred as a result of an assault and battery. On August 28, 1959, Bennett filed his complaint. On March 17, 1961, Brown served on counsel for Bennett an offer of compromise which read: “Offer of Defendant To Compromise “To the P...
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InMarch of 1959 the petitioner, as a general contractor, entered into a contract for the construction of the Pacoima Memorial Lutheran Hospital and thereafter, under date of March 23, 1959, entered into a subcontract with defendant whereby the latter undertook to furnish labor and materials for the plumbing, heating, ventilating, and fire protection system for the agreed price of $374,-970. This ...
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The defendant and appellant, Donney Shepard, Jr., appealed from a judgment upon the verdict of a jury finding him guilty of the crime of possessing marijuana. Probation was granted upon conditions, and this appeal was taken. Appellant’s arrest grew out of an occurrence on November 26, 1961. Apparently a woman by the name of Helen Moore was driving an automobile owned by appellant, while appella...
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By the provisions of ordinance Number 2020 (N.S.) it is provided that the use of real estate in the unincorporated area of San Diego County for the purpose of quarrying rock, sand and gravel, and for the operation of a rock crushing and processing plant is prohibited unless a use permit has been granted by the board of supervisors. The plaintiff corporation made application for such permit in ord...
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The defendant and appellant appeals from a conviction of a violation of section 23101 of the Vehicle Code, which makes it a felony for any person while under the influence of intoxicating liquor to drive an automobile and while so doing to neglect any duty imposed by law, which act of negligence proximately causes injury to another than himself. The indictment charged that the defendant did “. ...
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This appeal originated in an action brought by Robert Burhans, Jr. and Gertrude B. Burhans, husband and wife, against Harry R. Wiley and Buena Vista Water Storage District. During the pendency of appeal, Miller & Lux, Incorporated, has been substituted in the place of plaintiffs, and Bank of America National Trust and Savings Association, as administrator, has been substituted in the place of d...
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The defendant, Eddie McNeal, was convicted of burglary of the second degree and sentenced to state’s prison. The crime as charged in the information was that he “. . . did wilfully and unlawfully enter a building, to wit: a tool shed on the property of Frank Cozzi, located near Dos Palos, with the intent to commit theft thereon. ’ ’ The corpus delicti was clearly proved. Mr. Cozzi’s tool shed, ...
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In this action for divorce two appeals have been taken by the plaintiff and cross-defendant husband. The appeal in No. 20199 involves the separate and community character of certain property of the parties, the division of the community property, the imposition of liens thereon and the award of alimony and attorneys’ fees. The appeal in No. 20494 involves the award of attorneys’ fees and costs on...
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Plaintiffs appeal from an order of the trial court granting defendant Stanford Research Institute’s motion for a change of venue. Plaintiffs’ contention is that defendants’ affidavits filed in support of the motion are not sufficient to support the court’s order as a matter of law. This claim is meritorious and the order must be reversed. The various plaintiffs, as surviving widows and chi...
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This case comes to us by certification from the Appellate Department of the Superior Court, in and for the County of Los Angeles, following its decision affirming a judgment of the Municipal Court of the Los Angeles Judicial *757 District, which awards damages to plaintiff, the purchaser of an automobile, against both the manufacturer and the dealer who sold the vehicle to plaintiff for breach ...
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The directors of the Morro Del Mar County-Water District have petitioned this court for a writ of prohibition to halt further proceedings in an injunction action which is now pending against them. Eeal parties in interest are the citizens who commenced the action in the respondent superior court to enjoin the operation of the district on the ground that the formation election was not lawfully c...
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By an information the defendant was accused of having committed four felonies. At the time of trial he withdrew his plea of not guilty and pleaded guilty to the charges contained in the first two counts. In one of those counts it was alleged that on or about April 20, 1961, the defendant had committed the crime of grand theft. (Pen. Code, § 487, subd. 1.) It was stated that the property taken was...
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This is an appeal from an interlocutory decree of divorce. By plaintiff’s complaint the court was requested to grant her an interlocutory decree of divorce from her husband upon the ground of extreme cruelty. The court was further requested to declare that a property settlement agreement theretofore executed between the parties had been abrogated by the parties upon a reconciliation, and, finally...
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This is an appeal by the defendant from an order of the trial court granting plaintiffs’ motion for a new trial, following a jury verdict for the defendant, on the ground that the court had erred in refusing plaintiffs’ requested instructions on res ipsa loquitur. The requested instructions were substantially in the form of BAJI No. 206 (revised) and BAJI No. 206-A (revised). Question Pres...
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Plaintiff appeals from judgment, after jury verdict in favor of defendant. Questions Presented 1. Does failure by an insurance company to comply with section 16060, Vehicle Code, and section 229 subdivision (b), Title 13, California Administrative Code, by notifying the Department of Motor Vehicles of noncoverage, estop the company from claiming noncoverage, or does it constitute an admission of c...
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By this mandamus proceeding, petitioner board seeks to compel the county auditor to issue a warrant for $16.45 in favor of a service station operator who, pursuant to purchase orders issued by the county welfare director, furnished gasoline for transportation of three indigents for medical treatment. Judgment was for respondent auditor, and petitioners appeal. Under the findings, there is no quest...
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The plaintiffs sought declaratory relief with respect to the meaning of an agreement made after a business venture of a corporation in which the parties were interested had failed. The agreement was deposited in an escrow by means of which the plaintiffs transferred their corporate stock to the defendant. The defendant has appealed from a judgment adverse to his contention with respect to the e...
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This is an action to havé a deed declared a mortgage. The complaint alleges as follows: That plaintiff is the only child, sole heir, and sole beneficiary of Erma Toth, who died April 28, 1960. On June 8, 1959, Erma Toth executed an instrument which on its face purported to convey her home to Erma Toth and Frank Crawford (defendant herein) as joint tenants. The complaint alleges that this conveyan...
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The appeal before us was taken by Barbara Bissinger Grant from an order overruling her objections to ■the seventh account of Security First National Bank (successor tó Farmers and Merchants National Bank) as trustee under the will of Frederick M. Bissinger, and approving and settling said account. The ground of appellant’s objections, and the contention on appeal, is that the trustee failed in the...
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Petitioner is the plaintiff in a divorce action who seeks a writ to compel the trial court to grant leave to file an amended and supplemental complaint. The facts alleged in the petition are not controverted. The complaint, filed October 24, 1961, sought a divorce from the defendant wife (real party in interest here) upon the ground of desertion. The wife answered and cross-complained for ...
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After a trial by the court defendant was convicted of violation of section 11530 of the Health and Safety Code, possession of a narcotic, marijuana. Defendant appealed the judgment of conviction on the sole ground that the evidence introduced against him was illegally obtained, and therefore that the court erred in admitting the evidence. “Viewing the evidence most favorably to respondent’s eas...
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Warren F. Gallinger was accused by information of the crime of petty theft with a prior conviction of petty theft. (Pen. Code, § 666.) It was also alleged that he had suffered a prior conviction of grand theft. Also charged by the same information was Ollie N. Jackson, who was accused of petty theft with a prior conviction of grand theft. Upon arraignment each defendant pleaded not guilty and den...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of Penal Code, section 470, forgery, in six counts. Defendant was represented by counsel and pleaded not guilty to each count. The jury returned a verdict of guilty on counts I, II, III, V, and VI, and not guilty on count IV. Defendant’s motion for a new trial was denied. Proceedings w...
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Frank Cooper was convicted by a jury of the crime of robbery in the first degree. He has appealed from the judgment which was entered. Pursuant to Mr. Cooper’s request for counsel this court appointed William N. Foley of the Sacramento Bar to represent Mr. Cooper on this appeal. Mr. Foley has informed this court that after a review of the record and interviews *864with the appellant he has not fou...
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Appellant was convicted after a jury trial of (1) assault with intent to commit murder, (2) robbery, and, (3) violation of Penal Code section 12021 (possession of a gun by a felon). The indictment had charged appellant with two prior felony convictions, (1) robbery in the first degree and burglary in the second degree and, (2) robbery in the second degree, for each of which he had served a term i...
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Ruby Rozell- appeals from an order granting her probation after a jury found her to be guilty of the crime of grand theft by false pretenses. The basis of the charge was fraudulent receipt of welfare funds under the aid to needy children program. In 1959 Ruby Rozell, -the mother of four minor children, applied for aid -under the. aid. to needy children program. At this time she was told that it...
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In the above-entitled action the cross-complainant, Cecil R. Cotton, doing business as Cotton Construction Company, sought to recover the balance claimed to be due to him under a contract involving the construction of a school building. At this time there are pending four different actions now on appeal in this court, as follows: *880No. 6905, in which Cotton Construction Company was plaintiff and...
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Both the plaintiff and defendant herein appeal from parts of an interlocutory judgment in an eminent domain proceeding involving the acquisition of a gas pipeline easement. At the time of oral argument before this court each of the parties moved to dismiss the appeal of the other. *884 The judgment appealed from ordered that upon payment into court by the plaintiff, for the b...
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Appellant appeals from judgment (jury waived) determining that all of the assets of the estate of *894 Ira W. Ney were the separate property of decedent, and overruling appellant’s exceptions to the report accompanying first and final account and petition for distribution. Questions Presented Are the assets of the estate separate property? (a) Is the present estate t...
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Appeal by defendant Royal Dutch Dairies from an order denying its motion to discharge ■ a writ of attachment. (A motion of defendants Veldhuis and Hilarides, individually, as copartners doing business as Firestone Dairies, to discharge writ of attachment [as to them] was granted.) On March 30,1961, defendant Royal Dutch Dairies assigned its assets to defendant Richard M. Durall for the benefit ...
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The present appeal is one of an increasing number of appeals taken in propria persona in which the record on appeal is prepared at county expense. In this case, as in many others, application has been made for appointment of counsel. In accordance with our usual practice, we read the transcript of the evidence and examined the record for error. Having determined that the appeal is frivolous we den...
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The Saint Germain Foundation brought three actions to recover real property taxes paid under protest to Siskiyou County for the tax years 1953-1954, 1954-1955, and 1955-1956. The three actions were consolidated for trial and the trial court determined that certain of the properties were tax exempt and ordered that the county return to the foundation a portion of the taxes paid under protest. Si...
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Appellant appeals from a judgment in favor of respondent for $50,000 due on a note, plus interest and attorneys’ fees. Appellant was a director of Cleary Oil Company Limited, a Canadian corporation, from its inception until October 1955, *923 and Victor I. Sandell was appointed a director of this corporation in February 1955, later becoming its president in 1956. The corp...
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Defendants appeal from a judgment granting plaintiffs declaratory relief and a judgment for $2,876.24 plus $350 attorney’s fees. Questions Presented 1. Is the lease ambiguous as to the payment of “excess” taxes and hence parol evidence should have been admitted? Did the trial court properly interpret the lease? 2. Should this court determine attorney’s fees for this appeal? ...
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In this action the plaintiff and appellant sought recovery of a balance alleged to be due upon a construction contract. On May 26, 1959, the superior court made an order by which this action was consolidated with cause No. 6904 [ante, p. 879 (28 Cal.Rptr. 438) ] in this court and with two other actions likewise pending herein. This order provided for the appointment of a referee and further provid...
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In this action the plaintiff and appellant sought recovery of a balance alleged to be due upon a construction contract. On May 26, 1959, the superior court *943made an order by which this action was consolidated with cause No. 6904 [ante, p. 879 (28 Cal.Rptr. 438)] in this court and with two other actions likewise pending herein. This order provided for the appointment of a referee and further pro...
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The defendant was found guilty of violating Penal Code section 270 in that he failed to support two children alleged to be his. It was admitted that the children were illegitimate. He appeals from the order granting probation and the order denying a new trial. With but few éxeeptiohs, none of which exist here, an order denying a new trial in a misdemeanor case has not been appealable since Penal C...
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Defendants appeal from an adverse judgment in an action upon a contingent contract for legal services rendered by plaintiff’s assignor, which is a law firm. Defendants were husband and wife. The defendant wife died on July 1, 1958, and her husband was thereafter appointed administrator of her estate. For the purpose of clarity, the husband will be referred to herein as the appellant and the law...
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Defendant was accused, in two counts, of forgery. He admitted allegations of the information that he had been convicted four times on felony charges (larceny of auto, Missouri; assault with intent to commit robbery, Missouri; issuing check without sufficient funds, California; forgery, California). In a trial by jury he was convicted on both counts. He appeals from the judgment and the order denyi...
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This is an appeal by defendant from a judgment for damages in favor of plaintiff on account of the motor vehicle accidental death of plaintiff’s husband. Facts The essential facts follow: On April 6, 1958, plaintiff’s deceased, Leroy Wood, was employed at the Flat Top Truck and Car Terminal and service station near Fresno. Between 9 and 10 p. m., Elwood Humphries drove an Autocar truc...
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This is an appeal by defendants from a judgment for plaintiffs in an action for damages and injunction on account of alleged unfair use of business secrets. Pacts Plaintiff Marvin Bledsoe is the sole stockholder in the corporate plaintiff. He is a licensed real estate broker. Defendant John M. Rooney is the salaried president of the corporate defendant, which has three directors, hims...
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Defendant-appellant Harvey Shannon, with his codefendant Joe William Sawaya, was convicted by a jury on a charge of grand theft, in that they took a tube caddy carrying about 500 tubes and other paraphernalia estimated to cost from $1,500 to $3,000, from a television company. Motions for new trial were denied and defendants were sentenced to prison. Each appealed from the judgment and order denyi...
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This is an appeal by defendant from a judgment of conviction of burglary, first degree, and grand theft, and an attempted appeal from an order denying defendant ’s motion for a new trial. Facts No challenge is made to the sufficiency of the evidence. Defendant did not take the witness stand nor present any evidence in his own behalf. It is therefore unnecessary to give a detailed account of t...
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Plaintiffs appeal from a summary judgment rendered in favor of respondents in a suit for declaratory relief. Plaintiffs had sought a declaration by the trial court that the respondents were obligated to retransfer a liquor license to the plaintiffs for a sum agreed upon in a written lease, a copy of which was attached to the complaint. The sole defense, and the basis of the summary judgment, wa...
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Plaintiff appeals from an order entered February 17, 1961 setting aside defaults and default judgments rendered against defendants Martha Hayes and Dorothy Davis. Plaintiff has also included in the clerk’s transcript a second notice of appeal dated October 26, 1959, but this notice relates to a former appeal which has heretofore been decided, and we therefore give no consideration to this notice. ...
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Plaintiff (husband) brought this action for declaratory relief seeking an adjudication of the rights of the parties in certain Oklahoma properties; the defendant filed a cross-complaint to quiet title to the same properties. *551 Plaintiff, Calvin L. Tinney, and defendant, Juanita Tinney, were married in Arkansas on December 31, 1953. On the day before—December 30—the parties exec...
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This is an appeal from a judgment denying a petition for revocation of probate of a will of decedent on *557 the ground that the contestants were not persons “interested” within the purview of section 380 of the Probate Code and that for lack of such interest they were incapacitated to maintain their contest. Contestants sought revocation of the probate of a will dated July 3,1959, on the gro...
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Petitioner Waco-Porter Corporation, an Illinois corporation, seeks a writ of mandate to compel the Superior Court of Tuolumne County to enter its order quashing service of summons in an action brought by plaintiff M. Dale Keyser, Jr., the real party in interest. (See Code Civ. Proe., § 416.3.) The action was brought against Waco-Porter to recover damages for personal injuries suffered by plaint...
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An information was filed by the District Attorney of Los Angeles County charging defendant and codefendant, Gene Evans, with violation of section 211 of the Penal Code, robbery. The information further alleged that defendants were armed with a deadly weapon at the time of the commission of the robbery. Defendants entered pleas of not guilty. The jury spent three days in deliberation before return...
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The appellant Martin I. Jacobson filed a motion to modify an order for the support of respondent, Roberta G-. Jacobson. The order was based upon a property settlement agreement previously executed by the parties. At the hearing on the motion the respondent objected to the introduction of evidence on the ground that the court had no jurisdiction because the order sought to be modified was based ...
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Question Presented The sole question presented on these appeals from judgments of conviction for the crime of burglary is whether there is sufficient corroborative evidence to sustain the convictions. The Record Three witnesses testified at the trial, to wit: Lloyd L. Murray, Sesto Luzzi and Robert W. Hayes. Additionally, the testimony of Joseph Uvdic and Charles Quacken...
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Plaintiffs, appellants, are husband and wife, John and Hermain Wisdom, and their son Bobbie Lee Wisdom and they have brought this action against an insurance company which had issued an automobile garage liability policy to plaintiff John Wisdom. During the effective period of the policy, on August 9, 1958, Bobbie Lee Wisdom, then a minor, drove an automobile which became involved in an accident ...
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The plaintiff appeals from a judgment in favor of the defendant in a personal injury action tried by a jury. The jury also returned a verdict against the defendant on his cross-complaint. Question Presented The sole question presented is whether the jury was guilty of misconduct which would warrant the impeachment of its verdict. The Record This appeal is presented u...
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Plaintiffs, R. L. Avery and Matt Carroll, hereafter collectively referred to as Avery, 1 and cross-complainant Leonard Henderson, hereafter referred to as Henderson, separately appeal from a judgment entered on February 10, 1961, vacating and setting aside a previous judgment entered on November 23, 1960, in their favor and ordering that said parties take nothing by their complaint a...
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This is a petition for a writ of mandate seeking to compel the Superior Court of Alameda County to grant a motion for change of venue to Mendocino County. The Facts The real party in interest, Fred J. Walker, hereinafter referred to as the respondent, commenced an action in Alameda County against the petitioner for the recovery of installments allegedly due on a contract for the sale of laundry ...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of possession of a narcotic, marijuana, in violation of section 11530 of the Plealth and Safety Code. The information further alleged a prior felony conviction, to wit, violation of section 11500 of the Health and Safety Code. Defendant entered a plea of not guilty and denied the prior con...
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This is an application by S & Q Construction Company and Hartford Accident and Indemnity Company for a writ of prohibition or supersedeas to prevent enforcement of a money judgment in favor of M. D. Haynie. S & Q was the contractor on a public construction project for the City of Stockton. Hartford was its surety on a bond furnished in accordance with the provisions of section 4200 et seq. of the ...
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COUGHLIN, J. — This is an action by a material-man against a surety on a contractor’s bond to recover the alleged unpaid portion of an indebtedness for materials furnished at the request of the contractor. The ease was heard upon a stipulation of facts, from which it appears that a contractor named Posey agreed to do certain construction work upon property owned by a corporation named C. ...
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The defendant James G. Justice was charged in an information in three counts: In Count I with the unlawful entering of an inhabited dwelling house with intent to commit assault with a deadly weapon in violation of section 459 of the Penal Code; in Count II with the unlawful entry of an inhabited dwelling house with intent to commit assault by means of force likely to produce great bodily harm in ...
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The question here is whether the findings support or contradict the joint and several judgment entered against all defendants for publication, as well as republieation, of an assertedly libelous letter. Judgment was for $5,000 for each of the two plaintiffs, each such award including “special and general damage. ’ ’ All defendants appeal. Vick, Dickson and Parks and their wives, all joined...
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Plaintiff obtained a deficiency judgment against the defendant arising out of the sale of a BU 135 Skagit, a large piece of logging equipment. The conditional sales contract of the parties was entered into in April of 1957. Defendant was unable to make any substantial use of the Skagit and in 1958 he parked it in the woods, built a cover for it, and removed the starting motor. Defendant paid on...
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R. W.Borders appeals from a judgment denying his petition for a writ of mandate. He was a policeman, with civil service classification, in the police department of Beverly Hills from March to October 7, 1960. On September 29, 1960, the chief of police notified him by letter that he was discharged from such position, as of October 7, 1960, for the following causes: misconduct, failure to perform du...
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Plaintiffsued for an accounting, damages for usury arising from successive agreements to factor accounts receivable, and damages for breach of contract based on revocation of a check drawn by defendant in favor of plaintiff. The court found the first factoring agreement to be usurious but held the second free of the taint. Damages for revocation of the check were refused. Thereupon, the court str...
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This is a boundary dispute involving a line which is the north line of plaintiffs’ property, the south line of defendants’ property, which adjoins the Steeles’ on the north. The area involved in the dispute constitutes a frontage along a county road of approximately 58 feet, with a depth of 440 feet more or less. The trial court quieted the title of plaintiffs Steele, denying the claims of the ...
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This is an appeal by plaintiff from a judgment of nonsuit in an action for damages for alleged breach of contract. Facts The facts come to us in an engrossed settled statement. Because it is succinct and terse, we quote it: “Plaintiff contracted to construct a public improvement for defendant consisting of Huntington Beach Channel and a portion of Talbert Channel, in the County o...
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The defendant was charged with the offense of burglary, i.e., a violation of section 459 of the Penal Code, and with the commission of a prior offense, i.e., burglary, for which he served a term of imprisonment; denied the charge of burglary but admitted the prior offense; was convicted of the former upon a verdict finding him guilty of burglary in the second degree; was sentenced to imprisonment ...
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The defendant was charged with the offense of selling marijuana, i.e., a violation of section 11531 of the Health and Safety Code, and with a prior conviction of the offense of possession of a narcotic, i.e., a violation of section 11500 of the Health and Safety Code, for which he served a term in the state prison; denied the selling charge but admitted the prior conviction; was tried by the cour...
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Defendants appeal from an adverse “Declaratory Judgment and Decree of Permanent Injunction. ’’ Questions Presented Is section 9(a) of order of the commission 9-57 of 1957 inapplicable to plaintiff- 1. Stewardesses- (a) because of the preemptive effect of the federal Railway Labor Act; (b) because of the commerce clause of the federal Constitution ? 2. Ticket Agents...
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In this action for damages for the cutting, logging and removal of timber, the sole question for our determination is whether the evidence is sufficient to justify an award of treble damages in favor of the plaintiffs. The plaintiffs J. C. Caldwell, hereafter referred to as Caldwell, and Rachel V. Caldwell are husband and wife. The defendants Kenneth W. Walker, hereinafter referred to as Walker...
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— This is an appeal by the defendant from an order made October 25, 1961, denying his motion to set aside the default judgment that had been entered January 27,1960. The ground of the motion was that the judgment, one entered by a court commissioner, granted relief not demanded in the complaint and therefore unauthorized because of the restrictions of section 580, Code of Civil Procedure. The mot...
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— The two defendants, jointly charged in the fourth count of an amended information with having conspired to commit forgery in violation of sections 470 and 472, Penal Code, and to commit the crime of violating section 4463, Vehicle Code, were tried by the court without a jury and found guilty. Defendant Kay was placed on five years’ probation, a condition of which was that he spend 90 days in the...
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This appeal is taken from a judgment rendered in favor of plaintiff in an action brought to recover damage to a building in Sacramento caused by fire. The only issue presented on appeal is as to the sufficiency of the evidence to sustain the judgment. The building housed a series of bowling alleys. Offset against the front or western face of the building was a vertical sign pylon, holding on eith...
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Defendants, Harold Pearl and Robert Kennedy, appeal from judgments of conviction entered after a jury found them guilty of the crimes of abortion and murder of the second degree. Upon Pearl’s request for counsel this court appointed Rudolf H. Binsch, Esq., to represent him on this appeal. Mr. Binsch has advised the court that he finds no valid grounds for an appeal and no brief has been fi...
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The decisive issue on this appeal relates to the effect of a provision in an industrial family insurance policy that it shall take effect only if the insured, his spouse, and his dependent children, all of whom are covered thereby, are in sound health at the date of issuance. Two such policies of insurance were issued by the American National Insurance Company, the plaintiff, cross-defenda...
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In this proceeding we are called upon to review an award of the Industrial Accident Commission in favor of respondent employee. Petitioner, the insurance carrier for the employer, urges that the award of the commission must be annulled because it was (1) completely in excess of the commission’s powers; (2) manifestly unreasonable; and (3) wholly unsupported by any substantial evidenc...
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Plaintiff minor, a girl of 7 years, was struck by a pickup truck driven by defendant while she was riding a bicycle across a street in the residential district in which she lived. She appeals from that portion of the judgment herein which awards her $5,500 as general damages, on the ground that the amount thereof is inadequate as a matter of law. The action was tried without a jury and the tr...
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On June 9, 1961, the defendant motor vehicle was used unlawfully to transport narcotics. Such use was without the knowledge of its owner, Carfagni. One Santiago, who was on parole for a narcotics offense and was living in Carfagni’s home, was using the vehicle with the express permission of the latter. Santiago and an accomplice held up a pharmacy and Santiago drove away in the vehicle with cas...
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This action arises out of a transaction between the plaintiffs, the owners of a trailer park, and the defendant contractor relating to electrical work to be done on the plaintiffs’ property. The work was not completed. The plaintiffs sued to recover a payment of $500 made to the defendant. The defendant filed a cross-complaint in which he sought to recover damages for breach of contract. The plain...
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Defendant, in propia persona, appeals from judgment of conviction, after jury trial, of two counts of burglary. Defendant was represented at his trial by an attorney of his own choosing. Defendant admitted seven prior felony convictions. At his request this court appointed an attorney to represent him on this appeal. Later, the attorney advised this court that after and from a full study of the re...
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Defendant was charged with selling heroin on March 30, 1962, in violation of section 11501, Health and *504Safety Code. It was further charged that he had suffered four prior felony convictions, two of which were violations of section 11500, Health and Safety Code. Defendant was found guilty of the main offense as charged. The court also found the priors to be true, denied probation, and sentenced...
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Defendants appeal from a money judgment recovered by plaintiffs against them for rentals due under a lease of 2,230 acres of grazing land owned by plaintiffs. The validity of the judgment depends upon whether the lease was extended beyond its original term. The lease was for 11 years, ending September 30, 1958, at an annual rental of $2,000. It contained an option to renew for an additiona...
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Plaintiffs 1 and certain defendants 2 have appealed from certain portions of the judgment and from certain findings of fact and conclusions of law in this action for declaratory relief. No appeal lies from the findings of fact or conclusions of law. 3 Therefore, the purported appeals by the respective parties from the findings of fact and conclusions of law mus...
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This is an action for damages sustained by plaintiff when its furniture moving van was struck by defendant’s electric railway car on July 14, 1959. Liability was admitted and the action was tried by a court sitting without a jury on the damages issue only. The judgment was for $3,600, from which defendant appeals. Defendant’s contentions here are that the trial court refused to make findi...
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Defendant corporation appeals, after trial by the court, from a judgment entered against it in plaintiff’s suit to recover the final month’s salary of a one-year employment contract and 10 per cent of the net profits, during the contract period, of certain corporations named in the contract and affiliated with defendant corporation. The background evidence, which is not in conflict, discloses t...
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On March 7, 1962, plaintiff wife Bosalia B. Davis filed an action for divorce against defendant husband James F. Davis. The record contains a verified complaint which, among other things, made a specific request for attorney’s fees and costs. Pursuant to a declaration signed by the wife, an order to show cause in re attorney’s fees, court costs, alimony pendente lite and restraining orders was ...
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Di Giorgio Fruit Corporation commenced an action against the AFL-CIO, an unincorporated association, Norman Smith, Louis ICrainoek, DeWitt Tannehill, Franz Daniel and the Agricultural Workers Organizing Committee, an unincorporated association, alleging that the said defendants had published a libelous film entitled “Poverty in the Valley of Plenty” and praying for compensatory and punitive damage...
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This is an appeal from a judgment quieting title in the respondent to certain real property in Oakland, California. Question Presented In this action to quiet title brought by a surviving husband against his three stepdaughters, the sole question on appeal is whether there is sufficient evidence to support the trial court’s finding that a deed executed by the deceased wife was not...
Views: 4

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