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All Reporters → cal-app-lexis → Volume 1967

Opinions in cal-app-lexis Volume 1967

Plaintiffs, who are 18 Texas fire and casualty insurance companies, appeal from a judgment deling recovery of retaliatory taxes in the aggregate amount of *0 $929,833.42 imposed on them for the years 1959 and 1960. The levy had been made by respondent Board of Equalization, pursuant to Insurance Code section 685 et seq., upon the board’s determination that the insurance tax laws of...
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Plaintiff, Lorene Gaunt, appeals from the adverse portions of a judgment for defendant, The Prudential Insurance Company of America (“Prudential”), in an action brought to recover the proceeds of a policy of insurance upon the life of Daniel Gaunt, the deceased husband of the plaintiff. On appeal Mrs. Gaunt contends: (1) The evidence was insufficient to support the trial court’s finding that Pr...
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In this proceeding an applicant for workmen’s compensation seeks review and annulment of an order of the Workmen’s Compensation Appeals Board which denied her claim and allowed only reimbursement of medical-legal costs. Applicant, a public health nurse, was employed as a school nurse by the Bassett Unified School District. In her application for workmen’s compensation she alleged that she suffe...
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Appellant and William V. Johnson were charged with murder and robbery (Pen. Code, §§ 187 and 211). Appellant entered a plea of not guilty. The trial court suspended proceedings pursuant to Penal Code, section 1368 and appointed psychiatrists to examine appellant. After a hearing he was found presently insane within the meaning of section 1368 and committed to Atascadero State Hospital. *32 Twen...
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The Department of Alcoholic Beverage Control (hereinafter “Department”), through its director, appeals from a judgment of the trial court denying the Department’s petition for a writ of mandate and discharging an alternative writ of mandate. The writ sought would have directed the Alcoholic Beverage Control Appeals Board (“Board”) to reverse its decision which had, in turn, reversed an administ...
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Appellants, the Sacramento County Board of Supervisors and its members, seek a writ of supersedeas pending their appeal from a preliminary injunction issued by the Sacramento Superior Court. The injunction was sought to enforce the Brown Act (Gov. Code, §§ 54950- 54960), the objective of which is to prevent closed meetings of local legislative bodies. 1 The preliminary inj...
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Plaintiffs, H. H. Costerisan and Allan H. McFarland, in their complaint each alleged a separate cause of action for false imprisonment against Tejón Ranch Co. and its agent, Henry Melendy, resulting from their detention while upon Tejón Ranch land during a hunting expedition. Plaintiffs alleged a right of access across Tejón Ranch land to their own landlocked property. Tejón Ranch and Melendy both...
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Appellants James Lee Paxton and Raymond Sparks and defendant Jimmy Wendle Theus were jointly charged and tried on four counts: kidnaping with intent to commit robbery (violation of Pen. Code, § 209) (count I); rape (violation of Pen. Code, § 261, subd. 3) (count II); oral copulation (violation of Pen. Code, § 288a) (count III) ; and robbery (violation of Pen. Code, § 211) (count TV), all felonies...
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Duncan was charged by information with driving an automobile while under the influence of narcotic drugs and while addicted to the use of narcotics, in violation of section 23105 of the Vehicle Code and with a prior conviction of robbery. Duncan pleaded not guilty and denied the prior felony. Duncan was initially represented by the public defender, but private counsel was subsequently substituted...
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Y. L. Creed married Flossie Creed in 1919. Respondent Betty Knoll is the sole surviving child of the marriage. Flossie Creed died in 1942. During the marriage, Y. L. Creed was employed as a contractor and acquired property, including the commercially developed real property hereinafter described as the Bell property. In 1943, Y. L. Creed married appellant Pauline, a divorcee and a long time acq...
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Defendant City Title Insurance Company appeals from a judgment of $6,250, plus interest, recovered by plaintiff John R. Howe in a negligence action. The negligence consisted of the failure of defendant to record a request for notice of default and sale under a trust deed as authorized by Civil Code section 2924b. As a result, plaintiff, holder of a junior trust deed on real property, was denied a...
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Defendant and cross-complainant Mary J. Hudson (hereinafter Mary) appeals from a judgment in favor of plaintiff and cross-defendant Pearl D. Hudson (hereinafter Pearl) denying Mary’s claim to retirement benefits •arising from the death of Howard Ellsworth Hudson (hereinafter Howard). Questions Presented Did certain language in Howard’s will effect a change of beneficiary under the State Emplo...
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Plaintiff was injured in a scuffle with defendant occurring in a high school gymnasium, and sought recovery of damages under a complaint in two counts; the first alleged defendant “so negligently squeezed, struck, grabbed and hit plaintiff so as to proximately cause plaintiff to sustain the hereinafter described injuries ’ ’; and the second alleged defendant “assaulted and battered plaintiff so...
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Plaintiff James Bradley brought this action to obtain a decree quieting his title to a parcel of San Francisco real property and canceling a deed in favor of defendants John Scully and Ruth Cottle. Plaintiff prosecutes this appeal from a judgment decreeing that defendants Scully and Cottle -are the owners of an undivided one-half interest in the property in question and are tenants in common with...
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In these consolidated mandamus petitions petitioner, defendant in an action for medical malpractice, seeks to prevent discovery by plaintiff (real party in interest) of certain materials and certain information. The subjects are suitable for separate discussion. Re Sufficiency of the Affidavit Supporting the Subpoena Duces Tecum. (No. 11702) At a preliminary to the taking of the depos...
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On rehearing. Petitioner Wallace Dean Cline is confined in Folsom State Prison by force of two separate felony commitments, one issued in Santa Clara County in 1955, the other in Los Angeles County in 1962. He seeks habeas corpus, alleging constitutional vices in his 1962 Los Angeles conviction. Since petitioner attacks only one of two unsatisfied commitments, the writ cannot accomplish his rel...
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Defendant was convicted of two counts of selling marijuana, viz., violations of Health and Safety Code, section 11531; admitted two prior felony convictions for illegal possession of marijuana; was found to be a narcotics addict within the meaning of Welfare and Institutions Code, section 3051; was committed to the California Rehabilitation Center for treatment; subsequently was rejected by the D...
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On December 17, 1958, Bill and Betty Butler, husband and wife, entered into a property settlement agreement. At that time there were one minor child of the marriage and Betty’s minor child by a previous marriage who had been adopted by Mr. Butler. By the property settlement agreement each of the parties was to receive certain specifically described personal property. ■ Additionally, it was provide...
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Defendant, Thomas Montoya, appeals from a judgment of conviction entered on a jury verdict finding him guilty of robbery (Pen. Code, § 211), arguing that he was arrested pursuant to an invalid warrant that did not contain any description of the person to be seized and was therefore in violation of article I, section 19, of the state Constitution, as well as the Fourth Amendment of the Constitutio...
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This appeal presents the question as to whether the trial court’s determination that the defendant Belle Wiley Young holds in trust an undivided one-half interest in certain acreage in San Marino and must convey that interest to the executor and executrix of the estate of. May Wiley Adams, deceased, has substantial support in the record when viewed in the light of the applicable law. The action...
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The defendant was accused of the crime of possession of marijuana (Health & Saf. Code, § 11530) and of the crime of rape (Pen. Code, § 261, subd. 5), it being alleged that he had an act of sexual intercourse with a named woman “who was at the time unconscious of the nature of the act and this was known by the defendant.” Two prior narcotics convictions were alleged. In a nonjury trial the defen...
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On March 17, 1967, the superior court entered a judgment which affected three parties: it-awarded the plaintiff Valley Vista Land Co., (“Valley Vista”) the sum of $40,000 against the defendant Nipomo Water & Sewer Co., (“Nipomo”) and adjudged that this indebtedness “shall not constitute a vendor’s lien ... as against defendant Jake Will . . . but that the deed of trust in favor of sa...
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Appealing from a summary judgment, declaratory relief plaintiff City of Santa Ana contests a trial court’s determination defendant Board of Education of the City of Santa Ana is not subject to the city’s garbage collection regulations. Plaintiff seeks to compel defendant to employ plaintiff’s garbage collection services. Plaintiff contends the state has imposed upon local political subdivisions...
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The Workmen’s Compensation Appeals Board filed an order March 9, 1967, in its Santa Ana office, denying.George Cavanaugh’s petition for-eommu*178tation. Proof of service complied with the board’s Rules of Practice and Procedure, section 10520, title 8, California Administrative Code,1 with the following notation on the order: ‘1 Served By Mail On Persons Shown On The Official Address Record 3-9-67...
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Victor Albert Curcio appeals from a judgment of conviction entered upon a jury verdict of first degree burglary (Pen. Code, §§ 459 and 460). He admitted four prior felony convictions. On November 10, 1965, Curcio entered the B.C.A. Distributing Company's San Diego warehouse carrying a cardboard carton, walked upstairs to the second floor display area, and, after about three minutes, came downstair...
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The plaintiffs are both members of the Socialist Labor Party and instituted this action in their individual capacities, and upon behalf of other members of the Party, for the purpose of enjoining the City of Anaheim and the City of Garden Grove from exacting the payment of a business license fee from members of the Party who distribute and sell the official newspaper of the Socialist Labor Part...
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Defendant appeals from a judgment adjudging that it suffered no damage when the state obtained an order of immediate possession of certain access rights to a parcel of land owned by defendant and subsequently abandoned the proposed acquisition before trial. Plaintiff filed an action in eminent domain to acquire several parcels of land, including 3,094.79 lineal feet of access rights (leaving an...
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Defendants appeal from an order denying their motion to dissolve a writ of attachment. By agreement dated March 15, 1965, defendant AMA Corporation, doing business as Bella Vista Community Hospital, agreed to sell its accounts receivable to plaintiff, Investors Thrift, an industrial loan company located in Fresno. The individual defendants, Herman Kaye and Dolores Kaye, guaranteed AMA’s faithful ...
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Michael P. Garten, publisher of the “News-Ledser,” a paper of West Sacramento in Yolo County, filed a petition in the superior court to have its standing as a newspaper of general circulation in the county ascertained and established. (Gov. Code, § 6020.) In due course, the owner *208and publisher of the “Woodland Record,” a competing newspaper in Yolo County filed' objections to the petition. Aft...
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Defendant after jury trial was convicted on two counts, (I) attempted robbery in the first degree and (II) assault with a deadly weapon. The jury also returned special verdicts that defendant was armed with a deadly weapon when he committed these offenses. The court denied defendant’s application for probation and sentenced him under count I, attempted robbery in the first degree. On Septe...
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After a court trial defendant was convicted of the offense of possession of heroin for sale, in violation of Health and Safety Code section 11500.5. He is appealing from the judgment. Narcotics officers had been conducting an investigation of defendant for at least 30 days prior to his arrest on September 30,1963. At about 10:55 a.m. on that date Sergeant Pesler of the narcotics division of the Lo...
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Defendant was charged with statutory rape (Pen. Code, § 261, subd. 1). Defendant pled not guilty; the cause was tried without a jury; defendant was found guilty as charged; a probation report was ordered • probation was denied and defendant was sentenced to state prison for the term prescribed by law. Defendant met the prosecutrix Margaret Jean McCoy after Christmas in December of 1965, and t...
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Defendants Sullivan and Brown were accused of robbery (Pen. Code, § 211) while Brown was armed with a deadly weapon (count 1). Brown was also accused of kidnaping for the purpose of robbery (Pen. Code, § 209) (count 2). A prior felony conviction (a violation of Pen. Code, § 487, subd. 2) was alleged against Brown and was admitted. After various procedural steps not now material, the case *230 ...
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Following a preliminary hearing, defendant Thomas Cole and a codefendant were held to answer to the charge of possession of marijuana (Health & Saf. Code, § 11530). An information charging them with this offense was subsequently filed. Cole then moved in the superior court, under section 995 of the Penal Code, to dismiss the information as to him. His motion was granted. The People appeal pursuant...
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This is an action for wrongful death of a 14-year-old boy who died by drowning in a swimming pool maintained by defendant. The jury returned a verdict in favor of plaintiffs, but the court granted defendant’s motion for a judgment notwithstanding the verdict and alternative^ ordered a new trial on the ground of the insufficiency of the evidence to support the verdict. 1 Plaintiffs ap...
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Plaintiff obtained a judgment for a real estate commission in the sum of $7,200, for the sale of defendants’ property. On March 6, 1961, defendants gave plaintiff an open, nonexclusive listing to sell their 105-acre ranch in Merced County for $88,950, with a down payment of $40,000. The agreement provided for a 10 percent commission. The listing was for three years, unless sooner terminated by th...
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The Superior Court of Sacramento County, sitting as a juvenile court, has adjudged the two minors, Timateo (Timothy) and Frances Raya, nine and seven years of age, respectively, to be dependent children within the meaning of Welfare and Institutions Code, section 600, subdivision (a). 1 Five court orders are involved. Their net effect was to remove said children from the custody of b...
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At some date in mid-July 1964, the parties hereto entered into an escrow agreement to buy and sell the real property which is the subject of this litigation. The pur *267 chasers deposited $10,000 into that escrow, which upon the subsequent cancellation of the escrow due to the purchasers’ inability to perform, the $10,000 was later returned to them. On November 16, 1964, a se...
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Plaintiffs (hereafter taxpayers) appeal from a judgment in favor of defendant, Franchise Tax Board (hereafter Board) denying them a refund of personal income taxes paid under protest to the State of California, following disallowance by the Board of a deduction or a tax credit for certain Japanese income taxes. The taxpayers contend that sections 17204 and 18001 of the Bevenue and Taxation Code...
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This is an appeal by Peter Alvarado from the judgment entered upon his conviction by a jury of two counts of robbery (Pen. Code, § 211). He was tried together with one Robert Frazer who was also convicted of two counts of robbery but who does not appeal. Both defendants were charged in a' single information which alleged three counts: Count one charged Frazer alone, alleging that, on August 18,...
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This is a petition for writ of prohibition following a denial of motion under Penal Code section 995. Laurel, the petitioner here, and his codefendant, Russell, were charged by amended information with the following counts: (I) solicitation of one Beverford to join in the commission of a robbery (Pen. Code, § 653f); (II) robbery of one Simpkins (Pen. Code, § 211) ; (III) kidnaping one Simpkin...
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Defendant Chrysler Motors Corporation (Chrysler) appeals from a preliminary injunction granted plaintiff Thayer Plymouth Center, Inc. (Thayer) on November 10, 1966, enjoining Chrysler from terminating a Plymouth dealership agreement existing between Thayer and Chrysler. Chrysler has also filed a petition for writ of supersedeas seeking a stay of the preliminary injunction. In June 1961 Chr...
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Plaintiff appeals from a judgment entered on a nonsuit in her action against the County of Kern for dam *306 ages for personal injuries. At the time of the accident the County of Kern owned, operated and maintained boating facilities at Lake Isabella. Plaintiff and her husband launched their boat at a dock on the lake in the forenoon of Monday, April 13, 1964. Between 4:30 and...
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The failure of the appellants to furnish this court with a complete transcript of evidence to support the positions taken by them permeates the entire appeal. As developed during this opinion, if all of the evidence received by the trial court had been incorporated in the reporter’s transcript, it is possible that a different view of one or more of *314 the issues would have been d...
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This is an appeal by Joseph B. Schaefer and Margaret Terry Schaefer from a judgment of the superior court in Sonoma County, a portion of which declared that appellants’ lands were subject to an implied easement in favor of respondents Joseph P. Piazza, Jr., Lena Piazza, Ralph C. Hardisty and Jeannette Hardisty. The implied easement found entitles respondents to maintain a pipeline across appell...
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A jury found defendant guilty of possession of a knife while confined in a prison (Pen. Code, § 4502). He was sentenced to a term concurrent with that he was already serving. He appeals. Two prison-made knives were found wrapped in a rolled blanket at the foot of defendant’s bed. Brought before the prison disciplinary committee, he admitted an infraction of prison rule D-1205, possession of a w...
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Defendant appeals from a judgment of conviction of felony, robbery in the first degree. (Pen. Code, § 211.) Appellant appeared without counsel at his arraignment in the municipal court, at the preliminary hearing, and at the ensuing jury trial in the superior court. He now contends that he did not intelligently waive his right to counsel and that the trial court’s failure to procure certain mater...
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This is an appeal from a judgment of the Superior Court of Shasta County. Appellant was charged with murder. After a jury trial, she was found guilty of voluntary manslaughter. Probation was denied and she was sentenced to prison. Appellant was the common law wife of the deceased Robert “Rusty” Patón. The relations of the two for years had been stormy. On July 5, 1966, appellant and Patón had d...
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This appeal from a decree of distribution tests the responsibility of the probate judge in California to administer on his own motion the requirements of section 1020.1 of the Probate Code, which provides: “The court before making distribution of any property of a decedent to any assignee or transferee of any heir, devisee or legatee or before making distribution to any person other than an heir,...
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proceeding in prohibition was instituted by the petitioner to prevent a hearing on an order to show cause why petitioner should not be committed for contempt of court in failing to make payment of monies ordered by a Nebraska court in a divorce judgment which, after some 16 years, was renewed and made applicable in Stanislaus County. The petitioner claims that the order by which he was required to...
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This is an action by an employer under section 3852 of the Labor Code, to recover the amount of workmen’s compensation benefits paid to an employee who was injured in the course of employment by the alleged negligence of the defendants. The question squarely addressed by the appeal is whether the applicable period of limitations for commencement of the action is one year (Code Civ. Proc., § 340...
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Whiting appeals from a summary judgment which dismissed his complaint to quiet title and declared valid a special assessment lien of the City of Pasadena against his property. In February 1965 Whiting purchased a lot in Pasadena at a trustee’s sale. In October 1965 the city notified him that a special assessment of $947 was due on the lot, a sum which represented the cost of demolishing a house on...
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255 Cal.App.2d 378 (1967) THE PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. VIVIAN CURTIS et al., Defendants and Appellants. Civ. No. 30021. California Court of Appeals. Second Dist., Div. Three. Oct. 26, 1967. Thorpe, Sullivan, Clinnin & Workman, Henry K. Workman, Loeb & Loeb and Herman F. Selvin for Defendants and Appellants. *381 Harry S. Fenton, R. B. Pe...
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On August 4, 1966, Crespin Martinez Donel was arrested on a traffic warrant. The arresting officer concluded that Donel was addicted to the use of narcotics or, by reason of repeated use of narcotics, in imminent danger of becoming addicted. Another officer thereupon made an application for Donel’s admission to a hospital, to wit, the Los Angeles County jail infirmary, pursuant to section 3100....
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Eloi J. Amar died on May 24, 1963, and his will was duly admitted to probate in the Superior Court of Los Angeles County. A state inheritance tax appraisement and report were made, dated Stepember 30, 1964, and a hearing on the report was set for October 20, 1964. On that date the report was approved and the tax set at $725.28. This amount was paid on November 6, 1964. Thereafter, a federal estate...
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255 Cal.App.2d 409 (1967) JAMES O. PATHE, Plaintiff and Respondent, v. CITY OF BAKERSFIELD et al., Defendants and Appellants. Civ. No. 788. California Court of Appeals. Fifth Dist. Oct. 26, 1967. Kenneth W. Hoagland, City Attorney, and Raymond C. Clayton, Assistant City Attorney, for Defendants and Appellants. *412 William T. Hays for Plaintiff and Respondent. GARGANO, J. This is an appeal...
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Respondents Earl Vounker and A. E. Cahlan, partners doing business in Nevada under the firm name of Earl E. Vounker Enterprises, were awarded summary judgment against appellants Reseda Manor, a corporation, and Sam Len, on a promissory note. The note was for the purchase price of land in Nevada, and the land was hypothecated by deed of trust to secure the debt of $95,353. The note was executed ...
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In her second amended complaint against the defendants Bank of America and George E. McCullen (a manager of bank), Carmalita T. Hanley, as executrix of the will of Raymond J. Hanley, deceased, sought declaratory relief with reference to a “continuing guaranty” which the decedent had executed in favor of the bank, and sought recovery of bonds which had been pledged with the bank as security for th...
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This appeal presents the question whether defendant was tried on a charge after having been once in jeopardy. Charged by information with attempted robbery, defendant pleaded not guilty. On January 18, 1966, a jury was impaneled and sworn. 1 After the information was read, the trial judge called a noon recess, indicated the court would reconvene at 2 p.m. that afternoon and admonished the jur...
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Appellant Churchill was by information charged with the following felonies: count I, violation of *446 section 211 of the Penal Code, armed robbery of Joel Robinson on 22 October 1965; count II, violation of section 496 of the Penal Code, receiving Joel Robinson’s credit cards on 28 October 1965; count III, violation of section 211 of the Penal Code, armed robbery of Moe Pollner on 28 October 1...
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Sandra Sue Whelchel and Donald Whelchel, Jr., appeal from orders committing them under Welfare and Institutions Code, section 3050 as persons in imminent danger of becoming narcotic addicts. Preliminarily appellants pled guilty before the municipal court to the misdemeanor offense of possession of dangerous drugs, a violation of Health and Safety Code, section 11910 were certified to the s...
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After accusation and hearing before a hearing officer who recommended revocation, respondent board concurred and petitioner’s license as a nurse was revoked. He was accused and found to have taken Librium, a prescription drug, without authorization from Patton State Hospital where he was employed, and gave some of said drug to one Glenna Marie Jermain who had been a patient at the hospital and ...
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This is an appeal from a judgment of conviction of escape. In an information filed in Santa Barbara County on Octo *466 ber 14, 1965, defendant was charged with escape in violation of section 4532, subdivision (b), Penal Code, in that he did on September 19, 1965, “escape without force and violence from the Santa Barbara County Sheriff’s Honor Farm while confined therein as a prisoner of the ...
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This is an appeal from a judgment of conviction of possessing marijuana. In an information filed in Los Angeles on June 18, 1965, defendant was charged with a violation of section 11530, Health and Safety Code, in that she did have possession of marijuana on about April 1, 1965. She pleaded not guilty. Defendant made a motion to quash the search warrant and that matter was argued before the cou...
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This is an appeal from a judgment of conviction of possession of heroin for sale. In an information filed in Los Angeles on December 11, 1964, it was charged that defendant did on October 29, 1964, possess heroin for sale. It was further charged that defendant previously had been found guilty of breaking and entering a motor vehicle in Texas in 1955 and that he had served a term in the state pr...
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This is an appeal from a judgment of conviction of murder in the first degree and of assault with a deadly weapon with intent to commit murder. In an information filed in Los Angeles County on December 2,1965, Jethro Bolton was charged in count I with murdering Micha Thompson on November 8, 1965, with malice aforethought. In count II he was charged with committing an assault with a deadly weapon u...
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This is an appeal from a judgment of conviction of a violation of section 10851, Vehicle Code. In an information filed in Los Angeles on February 3, 1966, defendant with Thomas Reed was charged in count I with grand theft, in that they did on January 8, 1966, feloniously take the motor vehicle of David M. Culver; in count II they were charged with feloniously taking and driving the automobile o...
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This is an appeal from a judgment of conviction of burglary in the second degree. In an information filed in Los Angeles on March 23, 1966, defendant was charged with burglary in that he did on January 26, 1966, enter the office and building occupied by Cal-Pacific Escrow Company with intent to commit a felony. It was further charged that on September 30, 1965, defendant was convicted of a viol...
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Uninsured motorist coverage. In March 1962, in Miami Beach, Florida, Samuel and Ida Diskin, California residents, received personal injuries when the taxicab in which they were riding collided with a fire hydrant. The taxicab operator was covered by liability insurance issued by Preferred Insurance Company of Grand Rapids, Michigan, but the company became insolvent in May 1963, a fact of w...
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Defendants Billy and Leon Henderson and David Hawkins were jointly charged, in a three count information, with the robbery (Pen. Code, § 211) of William Edwards (count one) and Granville Card (count three) and with the attempted robbery (Pen. Code, §§ 211 and 664) of Burr Thomas (count two). A jury found Leon Henderson guilty as charged. Billy Henderson and Hawkins were found guilty of counts one...
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Limón appeals from a judgment convicting him of violating section 11500.5 of the Health and Safety Code (possession of heroin for sale), entered March 10, 1966. The information against Limón and his two codefendants charged Limón with violating section 11500.5 and with at least three prior felony convictions. Limón initially denied the priors, but at the time of trial admitted them. At the same t...
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Petition for a writ of mandate brought to compel the Superior Court of Sacramento County to hear further testimony and take additional evidence on the issue of the effect of petitioner’s homosexual conduct upon the well-being of petitioner’s daughter. The father of the child has appeared herein as the real party in interest. This proceeding arose out of a divorce action brought by petitioning w...
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On April 7, 1964, the plaintiff Am-Cal Investment Co., Inc., a California corporation, which is owned solely by its president Louis Weinberg, entered into a written agreement with the defendant Sharlyn Estates, Inc., a California corporation, wherein the plaintiff agreed to purchase, and the said defendant agreed to sell, 6.589 acres of raw land located on Tustin Avenue in the City of Orange, f...
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Defendant and one Leathers were found guilty of burglary, second degree (§ 459, Pen. Code); probation was denied and defendant was sentenced to the state prison. He appeals from the judgment. On June 10, 1966, in the absence of Arthur Williams, his apartment at 4729 West San Vicente was entered and various items were removed. The draperies which had been left open were drawn, pillows were scatt...
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Defendant, Jones and Armstrong were charged with kidnaping for purposes of robbery (§ 209, Pen. Code) and robbery (§ 211, Pen. Code). Defendant was charged with a prior felony conviction (manslaughter) which he admitted. The kidnaping charge was stricken on motion of the People. A jury found defendant and Jones guilty of robbery, second degree; it acquitted Armstrong. Defendant appeals from the ju...
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This is an appeal from a judgment of conviction of conspiracy (§ 182, subd. 1, Pen. Code), and pandering (§ 266i, Pen. Code). In an information filed in Los Angeles on December 19, 1963, appellant with Melvin Mack Brown, Willie Charles White, Varina Ann Griffin and Venera De Bois, was charged with conspiracy to violate certain numbered sections of the Penal Code in that they did between Decembe...
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This is an appeal from a judgment of conviction of forcible rape in violation of section 261, subdivision 3, of the Penal Code. In an information filed in Los Angeles on June 29, 1966, defendant was charged with raping Caroline Maiden on May 21,1966, by force and violence. Defendant pleaded not guilty. A jury trial was waived and it was stipulated that the cause be submitted on the testimony in...
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Defendant Poindexter was charged by information filed June 17, 1965 with a violation of Penal Code section 211 (robbery). Poindexter entered a plea of not guilty, waived right to trial by jury, and submitted upon the preliminary hearing transcript, subject to the production of further evidence by either side. Poindexter testified following the trial judge’s reading of the transcript. The court ...
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On May 10, 1966, this court filed its decision denying petitions for habeas corpus sought by Kenneth *568 Van Brunt and Hugh Vizzard (Crim. Nos. 3996 and 4003; reported as In re Van Brunt, 242 Cal.App.2d 96 [51 Cal.Rptr. 136]). A year later, on May 5, 1967, the Supreme Court filed its decision in In re Smiley, 66 Cal.2d 606 [58 Cal.Rptr. 579, 427 P.2d 179]. In the course of the Smiley opi...
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This matter comes to us upon a petition for a writ prohibiting further proceedings in the Superior Court of Fresno County by real parties in interest, nonresidents, whom the court ruled need not file security for costs pursuant to Code of Civil Procedure section 1030. A. D. Willburn filed an action in the Fresno County Superior Court against petitioners and others, seeking damages. The complain...
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This is an appeal from part of a judgment in a mandamus proceeding which orders the various respondents below to allow petitioner Robert E. Hartman, as a director of a corporation at the time of its dissolution, to inspect the corporate books and records in their possession. A similar right was denied the remaining petitioner, Chester R. Hartman, it being found that he was not a director at the t...
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A jury found defendant guilty of first degree robbery while armed with a dangerous weapon (§ 211, Pen. Code), rape (§ 261, subd. 3. Pen. Code) and kidnaping (§ 207, Pen. Code), a lesser but necessarily included offense, and that the victim was subjected by defendant to bodily harm (defendant had been charged with kidnaping for the purpose of robbery [§ 209, Pen. Code]). Out of four alleged prior ...
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Defendant Linnick, an attorney at law, appeals from a judgment awarding plaintiff damages in a declaratory relief action. Plaintiff, Munson, acquired apartment houses, through foreclosure proceedings, in which a man named Singer theretofore had installed carpeting and drapes under a contract of sale with a man named Kelly. The agreed price was $8574. Kelly defaulted under the contract. Sin...
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Appellant owners were awarded $12,225.25 for 28.93 acres of land covered by dredger tailings. The prop *595 erty was condemned for the avowed purpose of first removing the dredger tailings for use in the embankment of the Oroville Dam, and eventually for fish and wildlife preservation and recreation purposes. The first ground of appeal relates to instructions concerning fair market value and ...
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This is an appeal from a judgment entered pursuant to a demurrer sustained without leave to amend. Appellant was injured when her automobile was struck by a vehicle driven by respondent’s minor daughter but owned by a third person. In her first action, appellant sued the minor and the owner of the car but did not join respondent, who had signed his minor daughter’s application for a driver...
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Powell, a longshoreman, who is not a party to this appeal, brought an action for injuries he had suffered aboard a vessel owned by Isthmian Lines, Inc., when he was struck by a forklift truck owned by West Coast Terminals Company of California, a corporation. The action was against Isthmian and West Coast. Powell was employed by Schirmer Stevedoring Company, Ltd., a corporation. Isthmian cross-co...
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Appeal by Hayes from a judgment on the pleadings and from an order dissolving a preliminary injunction, and appeal by Risk from order reinstating preliminary injunction pending appeal. The history of the litigation which spawned the filing of the *612 action in which these appeals are taken is as follows: On February 9, 1961, Ruth Katherine Risk, hereinafter referred to as Ris...
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Defendant was charged by information with three felonies: Count I, armed robbery (Pen. Code, § 211) ; count II, assault with intent to murder Raymond Bash (Pen. Code, § 217); count III, assault with intent to murder William Watson (Pen. Code, § 217). On March 12, 1963, defendant pleaded guilty to counts I and III. On April 8, 1963, the court permitted defendant to change his plea to not guilty on ...
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This is an appeal from a money judgment for personal injuries received by plaintiff in a trip and fall accident, and from an order denying a motion for judgment notwithstanding the verdict. In her complaint plaintiff alleges that at about 9 p.m. on August 26, 1964, she was a business invitee and licensee upon the apartment house premises of defendants in the Van Nuys area of Los Angeles. It was...
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A jury convicted Williams and Jenkins of two counts of first degree robbery and found each to have been armed with a deadly weapon at the time of the commission of the offenses. Later other counts were dismissed in the interest of justice. Defendants appeal from the judgments. Count I On September 9, 1965, around 9:30 p.m., Williams pointed a gun at Mr. Carlson, manager of Alpha Beta Food M...
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This is an appeal by each of the defendants from a judgment of conviction of several counts of grand theft and forgery, and an attempted appeal from an order denying a motion for a new trial. In an amended indictment filed in Ventura County on November 10, 1965, defendants were jointly charged with committing grand theft in counts I, V, VII, IX, XI, XV and XVII and forgery in counts II, VI, VII...
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Appellant is appealing from an adverse judgment in a will contest. Respondent has moved to dismiss the appeal upon the grounds (1) that the notice of appeal was filed late, and (2) appellant has failed to designate and pay for a record within the time allowed by the rules. Appellant has offered an explanation for her delay in purchasing a record and has stated that she now has funds available and ...
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Defendant killed his wife Marcile with a target pistol in the early hours of July 5, 1965. He pleaded “not guilty. ’’ There was no plea of “not guilty by reason of insanity.” After a jury trial in which he was represented by private counsel he was found guilty of murder in the second degree. Three issues are involved in this appeal: 1. Was the jury adequately instructed on the subject of dimi...
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After a preliminary hearing the People filed a two-count information against defendant and respondent Ann Marie Monson. Count I charged her with possession of heroin (Health & Saf. Code, § 11500), count II with possession of marijuana (Health & Saf. Code, § 11530.) The superior court dismissed the information pursuant to section 995 of the Penal Code. The People appeal. All of the evidence...
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A jury found defendants guilty of murder of one Gadaire in the first degree and fixed the penalty of Boggs at death and that of McKinney at life imprisonment. The court reduced the sentence of Boggs to life imprisonment. A third defendant, Elbert Gilhousen, was allowed to withdraw his plea of not guilty at the outset of the trial before the jury was impaneled, and at his request, was sentenced im...
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This proceeding arises out of a divorce action in the respondent court in which petitioner is the defendant. The plaintiff in that action, the real party in interest here, obtained an interlocutory judgment of divorce from petitioner in May 1958. That judgment, which became final in May 1959, was modified in March 1962 and again in December 1965, insofar as it provided for the payment of alimony....
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Lillian E. Drummond brought an action against the City of Redondo Beach (hereinafter sometimes referred to as the City) for personal injuries which she sustained when her car struck a washout at the edge of the pavement and went into a ditch. She appeals the trial court’s orders granting the City both a judgment notwithstanding the verdict and a new trial. Appellant contends that the court...
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This is an appeal from a judgment of conviction (upon a plea of guilty) of issuing checks without sufficient funds and an appeal from a judgment of conviction of forgery. On about October 27, 1964, defendant with counsel pleaded guilty to a complaint charging a violation of section 476a, Penal Code (superior court case numbered 295,971). Proceedings were suspended, defendant was placed on probatio...
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Defendants were charged with grand theft (§ 487, subd. 1, Pen. Code); the cause was submitted to the court on the transcript of the testimony taken at the preliminary hearing. No additional evidence was offered and neither defendant testified or offered a defense. Both defendants were found guilty of petty theft (§ 488, Pen. Code), a lesser but necessarily included offense. They appeal from the ju...
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Elysium, Inc. (“Elysium”), appeals from an order granting the motion of Cowles Magazines and Broadcasting, Inc. (“Cowles”), for a preliminary injunction preventing Elysium from using the name “Nude Look” as the title of its magazine on the ground that the public was likely to confuse “Nude Look” with Cowles’s “Look” magazine and to associate Cowles as publisher of 1 ‘ Look ’ ’ with the publicat...
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Certain of the defendants in an action [#117628] pending in the respondent court have petitioned for a writ of prohibition directed to respondent against the further prosecution of said action,- and for a writ of mandate that respondent sustain demurrers filed to the complaint in said action, grant motions to strike portions of the complaint; order that the real party in interest give notice of...
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This appeal involves two consolidated cases: No. 8340—Desert Outdoor Advertising, Inc. versus the County of San Bernardino, and No. 8341—County of San Bernardino versus Desert Outdoor Advertising, Inc. The legal problems involved are identical. For sake of convenience, Desert Outdoor Advertising, Inc., will be referred to as “plaintiff,” and County of San Bernardino will be referred to as “defe...
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W & B Realty Co., Inc., Continental Parking Corporation and Walter M. Briggs (hereinafter sometimes referred to collectively by the name in which they conducted their parking lot operation Saf T Park) appeal a judgment entered in favor of the plaintiff Erbe Corporation (hereinafter sometimes referred to as Erbe) by the trial court sitting without a jury. The court awarded Erbe treble damages, a...
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This is an appeal by Sheldon Builders, Inc., (hereinafter sometimes referred to as Sheldon) from the judgment of the trial court, sitting without a jury, denying its claims for money due for services rendered as a building contractor, for money had and received, and upon an account stated. Sheldon contends that there was insufficient evidence to support the trial court’s findings (a) that obtai...
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This is an appeal from a judgment which, in effect, declared that defendants (fraternity houses) be enjoined from occupying, maintaining and using certain described properties in an “R-4” zone unless a variance or exception to the zoning ordinance of Long Beach be obtained. The City of Long Beach brought an action to enjoin the named fraternities from continuing to use and occupy described...
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Defendant’s demurrer to plaintiff’s first amended complaint was sustained without leave to amend. Plaintiff appealed “from the order of the above-entitled Court filed on May 12, 1966, sustaining without leave to amend the *804 demurrer of said defendant. ’' The Notice of Ruling on Demurrer signed May 16, 1966, recites that an Order of Dismissal was signed and filed on May 12, 1966,...
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In this wrongful death action plaintiffs, as the heirs of decedent, Lawrence 0. McDonald, appeal from the judgment in favor of defendant, the City of Oakland (hereafter referred to as “City”). The judgment was entered upon a jury verdict in the City’s favor. Plaintiffs challenge the propriety of various instructions and the admissibility in evidence of a certain document. Statement of th...
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On August 2, 1966, Boland Howard Bryan filed notice of appeal from the trial court's order of July 28, 1966, granting the application of his former wife, Joanne Bryan, for a writ of execution, and denying his motion to dismiss her application. On October 27 he filed notice of appeal from the trial court’s order of October 6, 1966, denying his motion for various orders including stay of execution....
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This is an appeal from a judgment of conviction of possessing heroin and marijuana for sale. In an information filed in Los Angeles on September 1, 1965, defendant and Rachel M. Gonzalez were charged in count I with possessing heroin for sale on August 6, 1965, and in count II with possessing marijuana for sale on August 6, 1965. Each of the defendants pleaded not guilty and, after many continu...
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This appeal is from a judgment of dismissal predicated upon an order sustaining without leave to amend the demurrer of respondents to appellant’s complaint. Under settled rule (Schaefer v. Berinstein, 140 Cal.App.2d 278, 288 [295 P.2d 113]) we must accept the allegations of the complaint (fourth amended in this case) as facts. Appellant Beatrice and decedent Elme...
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This is an action for indemnity. The plaintiff in this action, Kenneth Ramsdale, who is not a party to this appeal, obtained a judgment for personal injuries against Schackman and Universal. Universal was required by the judgment rendered on the cross-complaint to hold Schackman harmless from the judgment obtained by Ramsdale and to reimburse Schackman for the necessary and reasonable expenses ...
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Plaintiffs, owners of a restaurant on Highway 18 at Rim Forest, San Bernardino County, brought this action against defendants for alleged negligence in the use of a welding torch in cutting a hole in a steel plate in plaintiffs’ building, causing the building to catch fire and be severely damaged. The complaint by the plaintiffs, David A. Pekus and Neva E. Pekus, husband and wife, hereinafter refe...
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Plaintiff Rosener appeals from a judgment on verdict against Merle E. Larson and Ray P. Sanchez in the amount of $2,250 as damages suffered in an accident caused by the negligent operation of a truck. Named as defendants were Larson and Sanchez, owners and operators of the truck, and certain others, against Avhom no judgment was rendered. The sole ground of appeal is inadequacy of the awar...
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The proceeding before us arises out of an action in the Superior Court for Los Angeles County entitled Green Tree Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., et al., number 816567, for damages for fraud and misrepresentation with respect to a contract for the sale of certain real property to the plaintiff in that action, herein referred to as Green Trees, by the defendant Palm Springs...
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Plaintiff brought this action in eminent domain to acquire (1) a perpetual easement for the installation and maintenance of a storm drain conduit; (2) fee title to a small parcel for an appurtenant intake facility; and (3) a temporary construction easement along the perpetual easement. Following a jury trial on values, an interlocutory judgment was entered for a net award to the owner of $28,47...
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Plaintiff, Indiana Plumbing Supply Company, sued Bank of America for $6,060, alleging that for a valuable consideration three checks drawn on two other banks for $3,300, $1,380 and $1,380, respectively, to the order of plaintiff and J & J Plumbing, were delivered by the drawers to Joe Pinedo (J & J Plumbing) and presented by him to defendant Bank of America which paid the proceeds thereof to Pi...
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Kings Industries, Inc., (hereinafter sometimes referred to as Kings), appeals from the judgment of the trial court, sitting without a jury, which awarded plaintiffs $11,911.60 damages for losses by theft which occurred when their Kings burglar alarm system failed to operate as represented. The case was tried on the theories of breach of contract, *917 breach of warranty, and n...
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This ease comes before us on an agreed statement under rule 126. Prom this statement it appears that plaintiff and appellant Lisa Gustin is a minor who at the age of two *Supp. 931years went to visit a tenant of respondents ’ under an oral lease of an apartment in respondents’ building. While so visiting, Lisa fell through a second floor window which was equipped with a screen which was defective ...
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Petition for habeas corpus was filed in the superior court, seeking Carl E. Clark’s discharge from the custody of the Department of Corrections. The superior court *2 granted the petition and the People appeal. (Pen. Code, § 1506.) Petitioner is presently on bail. Clark had been committed to state prison in 1962 for forgery. The Adult Authority released him on parole in July 1964. Allegations...
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The plaintiff-school district was successful in this condemnation proceeding in acquiring a parcel of land as a site for the construction of an elementary school. The jury awarded $474,000 as the fair market value of the land taken and fixed severance damages in the sum of $188,-000, and no issue is involved as to the adquaey of the monetary award. The dispute to be resolved on appeal is whethe...
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The defendant, John M. Cerda, was convicted by a jury of two counts of forgery (Pen. Code, §470), and a third count of possession of a fictitious check with intent to pass it. (Pen. Code, § 475a.) The record shows that he and a eodefendant, Robert Richard Lopez, concocted what they apparently thought was a well-organized plan to issue numerous forged cheeks in the Bakersfield area. Unhappily for ...
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Defendant was charged with possession of heroin (§ 11500, Health & Saf. Code) and a prior federal narcotic felony conviction. The matter was submitted to the trial court on the transcript of the testimony taken at the preliminary hearing. No additional evidence was offered and defendant did not testify. He was found guilty as charged and the prior conviction found to be true. Defendant appeals fro...
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This is an appeal from a judgment of conviction of murder in the first degree and of robbery in the first degree. In an information filed in Los Angeles on November 30, 1965, defendants Hutchinson and a George Eugene Young were charged in count I with murdering Haw Dai Yee on October 23, 1965, and in count II with robbing May Pong Yee on October 23, 1965, of about $35. It was first alleged...
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Defendant’s demurrer to the complaint was sustained without leave to amend; the plaintiff filed a notice of appeal; the trial court ordered the action dismissed; we find that the demurrer was properly sustained and are affirming the judgment. Some time ago the plaintiff commenced action, numbered 866583, against the defendant on the same oral contract that he made the basis of this action. A gener...
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Plaintiff brought this action July 7, 1961, to recover three hundred thousand dollars damages from the defendant county because of injuries suffered by her on February 27, 1961, as a result of her unsuccessful attempt to commit suicide. Early in 1966, the trial court heard and granted a motion for a nonsuit, made upon plaintiff’s opening statement which was supplemented by a couple of exhibits....
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254 Cal.App.2d 52 (1967) THE PEOPLE, Plaintiff and Respondent, v. JOE CAMPUZANO, Defendant and Appellant. Crim. No. 12570. California Court of Appeals. Second Dist., Div. Four. Aug. 31, 1967. Worrell & Niles and Claude Vibart Worrell, Sr., for Defendant and Appellant. Thomas C. Lynch, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Plaintiff and Respondent. FILES, P...
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In this action to recover damages for personal injuries sustained by plaintiff, Mary Lubeck, as a result of a collision between the automobile being driven by defendant Eve Dooney, in which plaintiff was riding, and the automobile driven by defendant Anthony Lopes in the course and scope of his employment for defendant B. F. Goodrich Company, defendants Lopes and Goodrich appeal from the *66 or...
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Appellant instituted this action to set aside a final judgment of condemnation acquired by respondent City of Fresno 'against the Bowen Land Company, Inc., a public utility company. Respondents filed general demurrers to the complaint, which were sustained by the trial court (Judge Thompson) with leave to amend. Appellant, however, elected to rest on its complaint, and after it failed to amend,...
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Arthur Lee Partin, more than 21 years of age, was convicted on two counts of violation of section 11532 of the Health and Safety Code for selling marijuana to Christopher Robert O’Neil, aged 16 years, on two occasions. He was sentenced to state’s prison on each count for the term prescribed by law, with the sentences to run concurrently. The evidence for and against the defendant adduced respec...
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This is an appeal from a judgment denying Doctor William Shakin’s petition for a writ of mandate directing the Board of Medical Examiners of the State of California (hereinafter sometimes referred to as the Board) to vacate and annul its order revoking the doctor’s license to practice medicine and surgery in the State of California and to reinstate said license. On January 29, 1965, an acc...
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In an information filed in Los Angeles County on September 16, 1965, Johnson and Garrison were charged with robbing William Harris of about $25 on June 22, 1965. It was further charged that Johnson previously, on November 10, 1964, was convicted of a violation of section 11530, Health and Safety Code, a felony. Defendants pleaded not guilty and Johnson denied the prior conviction. In a trial befo...
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In this wrongful death action the defendants had summary judgment and plaintiff appeals. Plaintiff’s decedent was killed while riding in a car driven by Craig Wood, a minor. Wood too was killed in the accident. Defendant Mrs. W. C. Dick is the mother of Craig Wood. Plaintiff seeks to hold her liable under Vehicle Code provisions imposing liability on a parent who signs his minor child’s driver’...
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— Appeal is taken herein by defendants from a judgment in favor of plaintiff John B. Bertero following a trial without a jury. Plaintiff’s action is one in equity in which he sought a judgment for declaratory relief with respect to the rights and duties of himself and the defendants to three written contracts. The first, an employment contract between plaintiff and defendant National Gener...
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Defendant was accused in two counts of assault by means of force likely to produce great bodily injury upon peace officers, in violation of section 245, subdivision (b), of the Penal Code. He pleaded not guilty and not *153 guilty by reason of insanity. In a nonjury trial, upon the plea of not guilty he was found guilty on both counts; and in the trial upon the other plea he was found not g...
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Suit against respondents as guarantors of a secured note for a deficiency after a nonjudicial foreclosure of real property under power of sale. The note was executed by Playa Del Rey Medical Center, a partnership in which each individual respondent was in effect a partner, and reflected moneys’lent for interim construction, not'for the purchase price. The demurrer of respondents was sustained wit...
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Defendants appeal from the judgments entered following a nonjury trial that resulted in their convictions of the crime of burglary. Appellants’ guilt being unquestioned, the sole question presented for our consideration is: Was the information possessed by the police at the time of appellants’ arrest such “as would lead a man of ordinary care and prudence to believe and conscientiously entertain a...
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Defendant appeals from the judgment entered following a jury trial that resulted in his conviction on three counts of an information, each charging him with the crime of robbery. The jury determined that the robberies were of the first degree and that appellant was personally armed during the commission of one of these crimes. Appellant admitted his prior conviction of possession of marijuana. ...
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This is an appeal from an order of the superior court denying defendant’s motion to vacate his default and set aside the interlocutory judgment of divorce and for permission to file his answer. The question presented is whether the court abused its discretion in denying defendant’s motion. Plaintiff filed a verified complaint for divorce in December 1964. Subsequently, there was a conditional reco...
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Appellant, Ernest Ray Sheldon, and his eodefendant, Ashenbrenner, were charged by information with violating section 11501 of the Health and Safety Code (sale of heroin). Both men were also charged in a separate information with violating section 11531 of the Health and Safety Code (sale or furnishing of marijuana) and section 11530.5 of the Health and Safety Code (possession of marijuana for sal...
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On his appeal from a judgment of conviction, following a jury trial, of selling marijuana in violation of Health and Safety Code section 11531,1 defendant contends that (1) the prosecution failed to prove the corpus delicti of the crime with which defendant was charged; (2) defendant was denied the right to confront the informer; and (3) statements obtained from defendant in violation of his right...
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Defendant was convicted of kidnaping (§ 207, Pen. Code) and violations, sections 288 and 288a, Penal Code ; an alleged prior felony conviction (§ 211, Pen. Code) was found to be true. He was found not to be a mentally disordered sex offender; his motion for a new trial was denied and he was sentenced to the state prison. Defendant appeals from the judgment and order denying motion for new trial; ...
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The grand jury of Orange County issued an indictment accusing the defendant Arthur V. Jones, and two codefendants, Donald Franklin and Robert Sisko, of conspiracy (Pen. Code, § 182) to commit perjury in two civil suits; the second count accused defendant of subornation of perjury (Pen. Code, § 127) in that he induced Franklin, Sisko and Laurence Boothe to commit perjury in stating as true a mater...
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Plaintiff appeals from an order granting the motion of defendants to quash service of summons upon them on the ground of lack of jurisdiction based upon plaintiff’s noneomplianee with Code of Civil Procedure section 830. 1 The sole issue which this appeal poses is whether the posting of a cash deposit with the clerk of the trial court pursuant to Code of Civil Procedure section 1054a...
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This, is an appeal from a judgment of conviction of possessing marijuana for sale. In an information filed in Los Angeles on July 29, 1966, defendant was charged with possessing marijuana for sale on July 10, 1966. It was further charged that defendant previously had been convicted in the federal court system of a violation of the narcotics laws in 1959 and had served a term therefor in a feder...
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Clyde E. Heath, an applicant,' petitions for review and annulment of an award of the Workmen ’s Compensation Appeals Board. Applicant, a painter, injured his back on December 3, 1964, while pulling a heavy bucket of paint from the ground to the roof of a building. Upon his application for workmen’s compensation benefits award issued against the employer’s insurance carrier for permanent disabil...
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Plaintiff Skolsky brought an action against Eleetronovision Productions, Inc. on March 2, 1965, by which plaintiff sought, among other things, to recover money due him upon an alleged contract. On April 26, 1965, a writ of attachment issued and on April 27 a garnishment was levied upon De Luxe Laboratories, 1 which was holding a negative motion picture film of the photoplay “Harlow.”...
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This action against the surety on a release of attachment undertaking resulted in a summary judgment for plaintiff, in the amount of $50,000 plus interest, from which defendant appeals. This is the undertaking which was given to release the attachment in Skolsky v. Electronovision Productions, Inc., ante, p. 246 [62 Cal.Rptr. 91] 2 CIV 30504. The complaint in the instant action states in substance...
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This appeal involves certain problems that arise when a defendant to a criminal charge claims that the prosecution against him is the result of discriminatory *258 enforcement of the law and therefore a denial of equal protection. (Y ick Wo v. Hopkins, 118 U.S. 356 [30 L.Ed. 220, 6 S.Ct. 1064].) Both defendants were convicted of violating section 38.03 of the Los Angeles Municipal Code wh...
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Plaintiffs Robert O. Lewis and Phoebe Sehaap, brother and sister, adult children of Orin Lewis, deceased, appeal from an adverse judgment in a suit (for convenience hereinafter called by its number in the superior *273 court, No. 20601) brought by plaintiffs. In part it sought equitable relief which would effectually vacate an earlier default judgment in action No. 19901 in which d...
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Defendant appeals from a judgment of conviction of possession of marijuana in violation of Health and Safety Code, section 11530, after trial before a jury. The information filed also charged defendant with a prior conviction of a felony which defendant admitted. Because of the limited nature of the contentions made upon appeal, we set forth only those facts essential to their consideration. ...
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Appellants Norris and Parham, and their codefendant Alvarez (who is not appealing), were charged in count I with statutory rape, in violation of Penal Code section 261, subdivision 1, in that they did have sexual intercourse with a girl named Betty, aged 16. In count II Alvarez was charged with oral copulation with a girl named Doranne, in violation of Penal Code section 288a. The jury found al...
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Plaintiffs as heirs of decedent Edward G. Hart filed their complaint based in essence upon a charge of wrongful death resulting from a failure to summon medical care while he was a prisoner in the jail of defendant-appellant County of Orange. Trial before a jury resulted in a verdict for plaintiffs and defendant appeals from the judgment entered on the verdict. The case is divisible into two ba...
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This is an appeal from a judgment entered on a jury verdict denying probate of a codicil to the will of Annie L. Lockwood on the ground that the testatrix lacked testamentary capacity on February 28, 1964 when the codicil was executed, four days before her death. The will itself was admitted to probate, there being no question of Mrs. Lockwood’s testamentary capacity on July 28, 1958 when it was e...
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This is an action for damages for bodily injuries allegedly sustained when plaintiff’s car, at a stop sign, was struck from the rear by a car driven by defendant Hutcheon in the course of his employment by defendants Burdick. Jury verdict and judgment were for defendants. Plaintiff’s motion for new trial was granted, and defendants appeal. *318 The doctrine of res ipsa loquitur applies uncond...
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Defendants were convicted by a jury of robbery, first degree and found to be armed; Wigginton *323 admitted three prior felony convictions. They appeal from judgments of conviction. Around 12:50 a.m. on December 15, 1965, defendants entered a service station in Downey where one Strayhorn was working in the office. Wigginton, holding a gun in his hand, slipped open the door to the office and t...
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Petitioners seek a writ of mandate to compel respondent court to enter an order granting their motion for a summary judgment. Petitioners contend that a prior judgment in their favor as defendants in a personal injury case brought by a husband and wife is a bar to a subsequent wrongful death action brought by the daughter of the deceased wife, and that the motion for summary judgment should hav...
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The minor plaintiff filed a damage complaint against the defendant school district alleging personal injuries suffered while she was participating in high school physical education activities. The school district demurred, pointing out that the complaint failed to show compliance with the Government Code provisions requiring timely claim filing as a prerequisite to suits against public agencies. ...
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This case concerns the time within which an appeal may be taken to the Alcoholic Beverage Control Appeals Board (herein called Appeals Board) under Business and Professions Code section 23081 (herein called section 23081). On April 29, 1965, the Department of Alcoholic Beverage Control (herein called Department) made and mailed a decision imposing discipline on respondent licensees Norman ...
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By their “Petition for Writ of Review (and/or, in the Alternative, a Writ of Prohibition or Mandamus) ’ ’ petitioners seek review of orders of the superior court in an action commenced by them against Matthew Katz, hereinafter referred to as Katz, who is here the real party in interest. Concerned is the Artists’ Managers Act which we shall hereafter refer to as the Act. The Act comprises s...
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Plaintiff appeals from an order of dismissal based on an order sustaining a demurrer without leave to amend, and from the order sustaining the demurrer without leave to amend. Prom plaintiff’s second amended complaint, it appears that plaintiff was found guilty of a crime on June 8, 1965, and was granted probation for one year on condition that he pay a fine of $300, plus a penalty assessment o...
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Plaintiffs appeal from a judgment in their favor entered on or about February 15,1966. Plaintiffs are Viola M. Mixon (Viola) and B. H. Mixon (Mixon), wife and husband. Defendants are Riverview Hospital (Hospital) and Harry E. De Haven, Jr. (De Haven), a medical practitioner. The complaint was in four causes of action. In the first, Viola alleged damage of $40,000, caused by the neglig...
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Cotton Construction Company contracted to build a school in Holtville for the Holtville Union High School District. Cotton subcontracted electrical work to Encanto Electric Company. Encanto employed plaintiff Albert E. Freire. At the construction site, a utility pole owned and installed by defendant Imperial Irrigation District fell and injured plaintiff. The school district’s plans called for a j...
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Defendant was charged with unlawfully using a credit card issued by May Company, a retail merchandising corporation, to Dr. Charles Luckey, a violation of Penal Code section 484a, subdivision (b) (6); was tried by a jury; was convicted; and appeals. May Company issued a credit card to Dr. Luckey and his wife. On January 7, 1966, defendant made eight purchases from May Company, using this credit ca...
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Defendant was charged with possession of heroin and two prior federal convictions of narcotics offenses; denied the charge of possession but admitted the prior convictions; was tried by a jury and found guilty; applied for placement and treatment as a narcotics addict as provided by Welfare and Institutions Code, section 3051, which was denied; was sentenced to imprisonment in the state prison;.a...
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—Defendant appeals from a judgment sentencing him to concurrent terms for two violations of the penal provisions of the Health and Safety Code. He was convicted of possession of marijuana for sale on September 12, 1966, and of selling marijuana on September 14,1966. A San Diego police officer, Gogin, working as an undercover agent, became acquainted on August 19, 1966, at the San Diego pol...
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Defendant James Lee Dugan was found guilty by a jury of armed robbery (Pen. Code, § 211) and possession of a revolver capable of being concealed upon the person by one previously convicted of a felony (Pen. Code, *404 § 12021-). He appeals from the. judgment of conviction entered upon the verdicts. Three witnesses identified defendant as the person who robbed a supermarket. When arrested late...
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In this declaratory relief action the defendant-insurer appeals from a judgment in favor of the widow of its named insured, Carl M. Calhoun. 1 Mr. Calhoun died on April 29, 1963 from injuries received on April 20, 1963 in a collision in New Mexico between an automobile driven by him and one driven by James Bach, also killed in the same accident. *409 The insurer had issued an automobile l...
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On July 27, 1961, the Industrial Accident Commission made special findings in regard to petitioner’s claim against several defendants, including the real *417 party "in interest. The commission found that a compromise and release, approved by order of July 29, 1960, relieved all defendants from further liability with the exception of the real party in interest. Petitioner was awarded the sum of...
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An information is pending against the three petitioners charging them with the burglary of a residence in Atherton. After the trial court denied their motion to set aside the information under Penal Code section 995, petitioners sought a writ of prohibition under Penal Code section 999a, asserting that the magistrate’s order committing them for trial was made without probable cause. A summary of ...
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Defendant was arrested as a fugitive and for possession of heroin for sale. A preliminary examination *429 was held; an information was filed accusing defendant of violating 11500.5 of the Health and Safety Code; a motion under Penal Code section 995 was made and denied; defendant pled not guilty. Defendant personally, and all counsel, waived a jury trial and the cause was submitted on the test...
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Defendant was charged with burglary (Pen. Code, § 459). He waived a jury trial and agreed to submit the case upon the transcript of the preliminary examination. No evidence was offered by defendant. He was found guilty and is appealing from the judgment. The evidence shows the following: On November 25, 1965 (Thanksgiving Day), someone broke a window and entered the business premises of Aamicor...
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Defendant Arthur Williams appeals from a judgment entered after trial by jury finding him guilty of possession of marijuana, in violation of Health and Safety Code section 11530. Defendant contends that various prejudicial errors were committed by the prosecuting attorney during his closing arguments to the jury. On Sunday, July 31, 1966, at shortly before noon, defendant was found by a Los Angele...
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This is an appeal from a judgment of the superior court denying a petition for writ of mandate to compel respondents, California Unemployment Insurance Appeals Board, to set aside an atvard of unemployment . compensation benefits to appellants ’ employees, and to strike certain charges made to appellants ’ reserve accounts. Appellants are 44 wholesale meat companies operating in the San Francis...
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Appellant charged with violating Vehicle Code, section 20001 (felony hit and run), moved under Penal Code, section 995, to set aside the information. The motion was denied and he pleaded not guilty. A jury found appellant guilty as charged. His motion for a new trial was denied and he was placed on probation for five years. He appeals from the judgment and order granting probation (Pen. Code, § 1...
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This action was begun by the state to condemn real property owned by the Los Angeles County Flood Control District. A certain portion of the property sought to be condemned by the state, hereinafter called parcel A, is improved with paved ramps, which ramps provide the only means of ingress and egress to four parcels of land, hereinafter called B, C, D, and E. Defendants own parcels B. D and E ...
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This is an appeal from an action in inverse condemnation. Plaintiff, appellant here, owns 40 acres of land in Trinity County across which runs the Mad River, a *483 nonnavigable stream. The river approximately bisects the land of appellant from east to west. He has access to the north portion by a public road. His access to the south portion is by fording the river. The property in common with ...
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Defendant Jesse Wilson was found guilty by a jury of assault with a deadly weapon with intent to commit murder (Pen. Code, §217). The court thereafter ordered the conviction reduced to that of assault with a deadly weapon (Pen. Code, § 245a). From an order granting probation this appeal is taken. At the trial substantial evidence in support of the charge was introduced by the prosecution. ...
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This is an appeal by Argonaut Insurance Company, a workmen’s compensation carrier, from an order awarding counsel for plaintiff attorney’s fees in the amount of $825, to be paid from the proceeds of a $4,960 settlement partially reimbursing Argonaut for workmen’s compensation benefits paid to plaintiff. 1 Plaintiff Johnson was injured on or about June 30, 1961, when a truck owned by the L.D.S...
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This is an appeal by defendant Bess Bradford from an interlocutory judgment of partition wherein it is adjudged that she and plaintiffs (hereafter “Woods”) each own, as tenants in common, an undivided one-half interest in a 2,133-acre parcel of land in San Benito County and that said property should be sold and the net proceeds divided equally. (See Code Civ. Proc., § 752 et seq.) While claimin...
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Petitioner Ascherman, a physician, is plaintiff in two actions for reinstatement of hospital staff privileges. One ease, against the Mount Zion Hospital and Medical Center, is pending in San Francisco. The other, against the Marin Hospital District, is pending in Marin *509 County. The present proceeding tests the propriety of an order of the respondent Superior Court of San Franci...
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254 Cal.App.2d 517 (1967) THE PEOPLE, Plaintiff and Respondent, v. JOSE P. MIRANDA, Defendant and Appellant. Crim. No. 12336. California Court of Appeals. Second Dist., Div. Two. Sept. 20, 1967. Lawrence William Steinberg for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Robert H. Francis, Deputy Attorney General, for Plaintiff ...
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Plaintiff recovered judgment for the restitution of real property which she had been fraudulently induced to convey. Plaintiff is appealing from the judgment insofar as it fails to make an award against the defendants Helen James and Crete Dye for the use of the property and as exemplary damages. The trial was by the court sitting without a jury. The findings of fact reflect the following:...
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Following a trial and an adverse judgment, the defendant made a motion to vacate the judgment upon the *535sole ground that it is “void on its face.” The motion was heard and denied. Defendant is appealing from the order denying that motion. The judgment attacked is the one which is the subject of plaintiff’s appeal in 2d Civil No. 30395, decided this day. Defendant’s brief argues that the complai...
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The State of California, as plaintiff, appeals from a judgment denying recovery of an alleged overpayment to the County of San Diego, defendant, for the Junior College Tuition Fund, arising out of the apportionment of state funds pursuant to Education Code section 20211. The Education Code provides a method for financing the education of junior college pupils not residing in any school district ma...
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Donald DeGeorge, plaintiff in an action for personal injuries, appeals from a judgment entered following a defense verdict. He urges error in the giving and refusing of certain instructions. His first assignment of error is stated as: The court committed prejudicial error in refusing to give to the jury plaintiff’s requested instruction on looking and not seeing. The action in...
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Defendants, the County of Mendocino and various public officials of that county, who were sued in their official capacity, have appealed from a judgment entered in four consolidated actions in which plaintiff, San Francisco Boys’ Club, Inc., sought and was awarded a refund of real property taxes paid under protest on assessments made for the fiscal years 1962-1963, 1963-1964, 1964-1965 and 1965...
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This is an action for slander brought by Floyd Stoneking against Clarence Briggs, who made the statements complained of, and his employer, the United Brotherhood of Carpenters and Joiners of America (hereafter “international”). A jury returned a verdict in favor of Stoneking in the sum of $22,000 compensatory damages. A motion for a new trial was denied and this appeal follows. Events Preceding...
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Defendant was charged with grand theft from the person in violation of subdivision 2 of section 487 of the Penal Code. He pled not guilty; trial by jury was duly waived; the ease was submitted on the transcript of the testimony taken at the preliminary examination together with additional testimony.1 Defendant was found guilty as charged; probation was denied;2 defendant was sentenced to state pri...
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Doud Lumber Company, Inc. (hereafter Doud) appeals from an adverse judgment on its complaint to impose an equitable lien on certain funds realized by defendant, Guaranty Savings and Loan Association (hereafter Guaranty) after a foreclosure sale of an uncompleted apartment building in San Jose. Doud argues that the materials it supplied enhanced the value of the security and unjustly enriched Gu...
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Defendants appeal from the judgment entered in an eminent domain proceeding following a second trial by jury. The first judgment was set aside upon the granting of plaintiff’s motion for a new trial made on the ground that the evidence was insufficient to justify the verdict. Defendants ’ appeal from the order granting the new trial was unsuccessful. The order was affirmed by Division 4 of this c...
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Defendant was convicted of violations of section 11911 (possession for sale of dangerous drugs) and section *600 11912' (offering to sell a dangerous drug) of the Health and Safety Code. 1 He was sentenced to state prison for each offense, the sentences to run concurrently. On this appeal from the judgment we consider whether (1) there was sufficient evidence to support the finding of guilt a...
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This is a mandate proceeding brought by appellant property owners against the City of Los Angeles and its appropriate administrative officials to require the issuance of a building permit for the remodeling of a gasoline service *607 station. Issuance of the permit was refused because the property owners failed to comply with the demands made upon them under the provisions of section 12.37 of t...
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This is an appeal from a judgment of dismissal in favor of the County of Los Angeles following the sustaining of a demurrer to the second amended complaint without leave to amend. Appellants seek to recover damages for personal injuries and loss of personal property sustained in a vehicular accident which occurred when the driver of a Ford pick-up truck in which plaintiffs were riding, as passe...
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Petitioner is the defendant in a personal injury action. He filed an answer, then moved for leave to amend it in order to assert the bar of the one-year statute of limitations on personal injury claims. After considering the parties’ affidavits, the trial court denied petitioner’s motion. He seeks relief by mandate. Under some circumstances mandate is available to compel allowance of a pleading a...
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This appeal concerns opposing claims to a parcel of real property denominated “Park” on an 1887 subdivision map of Del Mar Heights, at that time in San Diego County and since annexed to the City of San' Diego. The trial was of two consolidated quiet title actions. The first filed was that in which Settlors Corporation (Settlors) appellant here was plaintiff. The second filed was that in which H...
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I dissent. If the broad language of the majority opinion obtains, all contracts wherein one party is unlicensed under a regulatory licensing statute are ipso facto illegal and unenforceable. Such a broad implication flies in the face of Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141 [308 P.2d 713], one of the cases upon which the majority opinion rests. Unless the question of enforceability is se...
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On February 19, 1964, fire destroyed a portion of the Bakersfield Inn, owned by one Reichert. At the time, the property was subject to a first deed of trust in which defendant was the beneficiary. Pursuant to the requirements of the deed of trust, defendant’s interest in the property was protected by policies of fire insurance. On March 16, 1964, Reichert, as owner in possession, entered into a...
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Mrs. Tang and her husband were the proprietors of a variety store. She was murdered in the course of a robbery during which she was struck at least 30 times. Some of the blows were inflicted by use of a blunt instrument, presumably a footstool which was broken into several pieces; she also suffered stab wounds inflicted by a sharp instrument, apparently a broken bottle. The evidence amply suppo...
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Defendant was convicted of an attempt to commit grand theft. He appeals on the ground that the evidence was insufficient to establish specific intent, an essential element of the crime. In support of his contention, defendant raises two collateral issues, first, that evidence of other offenses was improperly admitted to prove the requisite intent and, second, that evidence of one of the other a...
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On this appeal by plaintiff from a judgment in favor of defendant in her action for personal injuries, the only question presented is whether the trial court properly concluded that plaintiff’s action was barred by the statute of limitations. The case is one of first impression as to the interpretation of section 17463 of the Vehicle Code. The facts are not in dispute. About 8 a.m. on January 1...
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The petitioner, charged with a misdemeanor in that he had operated a number of stamp vending machines without the license that a city ordinance required, first demurred and moved to dismiss, without success, and then filed this petition for an alternative writ of prohibition, leading to a peremptory writ. He made the municipal court in which he was being prosecuted a respondent, and named the Peop...
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The plaintiff and appellant, F. Bartell Todd, a property owner in the proposed Visalia improvement district which was sought to be organized under the Municipal Improvement Act of 1913 (Sts. & Hy. Code, div. 12), attempted by this proceeding in administrative mandamus (Code Civ. Proe., § 1094.5) to restrain the formation and operation of the district. The trial court denied mandate and held tha...
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On this appeal from a judgment on a cross-complaint decreeing the reformation of appellants’ deeds to *696 provide. access to a roadway for a lot owned by plaintiffs and respondents, Frank and Geraldine Shupe (hereafter Shupes), 1 the contentions are that: respondents had no standing to seek the relief granted pursuant to section 3399 of the Civil Code; the evidence does not support the judgm...
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John Page Sivell, Hugh Gordon Sivell, Verna Page Armstrong and Ernest Gamble Jr., who for convenience are designated as remaindermen, have appealed from an order entered in response to a testamentary trustee’s petition for instructions (see Prob. Code, §§ 1120, 1240). The order directs the trustee to distribute at the testatrix's daughter’s death that share of the trust estate held for her benefit...
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In this mandate proceeding, wherein we issued an alternative writ, the question presented. is whether the court below abused its discretion in ordering plaintiff to further answer certain of defendant’s written interrogatories, to pay $250 attorneys’ fees, and imposing the sanction that if said answers were not filed within five days plaintiff could not present any witnesses at trial. 1 ...
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Emilio L. and Mary Isabelle Urrea 1 owned an interest in a motel in Reno, Nevada. Urrea listed the motel for sale with Kish & Co., a San Francisco realty firm owned by Stephen O. (and Lily D.) Kish. Michael J. (and Mary lee) Sussman owned a house in San Francisco. He wanted to buy the Reno motel. In a single transaction, he sold his San Francisco house to Kish and bought the motel on...
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In September of 1965 appellant commissioner filed an accusation against respondent which alleged that he was subject to disciplinary action under section 10177.5, Business and Professions Code, by reason of a final judgment in a civil action entitled Watts, et al. v. Spec-tor, et al., ordering rescission of a certain contract for the exchange of real properties upon the ground of respondent’s f...
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In a trial by jury the defendant was found guilty of murder in the first degree. The penalty was fixed as life imprisonment. He was sentenced to be punished by imprisonment in the state prison for the term of his natural life. He has appealed from the judgment. Three contentions are made: 1. The defendant’s statement that he had choked the victim, Diane Harley, was received in violation of the Esc...
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In a nonjury trial the defendant was found guilty of murder of the second degree and of assault with intent to commit murder. He has appealed from the judgment. 1 We reversed a prior judgment of conviction of murder of the first degree and of assault with intent to commit murder because at the trial on the issue of guilt the court erred in restricting the defendant’s proof on the question of hi...
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In the midst of a major strike of farm workers formerly employed by the real parties in interest on their 8,000 acres of vineyard in Kern County and southern Tulare County, the trial judge herein issued a preliminary injunction in Giumarra Bros. Fruit Co. et al., v. United Farm Workers Organizing Committee et al., Kern County No. 100011, which contained, in addition to a comprehensive restraint...
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This appeal presents a factual oddity in motor vehicle-train collision cases—an implied finding that the truck driver’s recovery is not barred by contributory negligence, but that his fellow employee, who rode on the right side of the vehicle and did not touch its controls, was eontributorily negligent. Plaintiff Weeks was the driver, and plaintiff Spataro the relief driver, of a tractor-trailer c...
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Plaintiffs sued for breach of contract to purchase a ranch, for conversion of 1,392 head of cattle, and for fraud, all in connection with a single transaction for the sale of a Nevada cattle ranch. After a nonjury trial, plaintiffs took a judgment of $20,425 for defendants’ breach of contract. The court found against defendants on their cross-complaint for breach of two subsidiary contracts in ...
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This is an appeal from a judgment confirming an uninsured motorist arbitration award in the amount of $9,260. The appeal lies. (Code Civ. Proe., §§1294, subd. (d), 1287.4.) 1 The sole basis of this appeal is that the award was improperly confirmed because it was incomplete and ineffective since three rules of the American Arbitration Association were violated in the course of the arbitration ...
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This is an appeal by defendants from a judgment rendered against them for $10,000 plus 7 percent interest from December 13, 1960. The complaint, filed by plaintiff, was one for money had and received and for declaratory relief. The facts are as follows: On or about August 24, 1960, plaintiff and defendants entered into two written instruments. One related to the purchase by plaintiff of certain...
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Appellant, Keystone Mortgage Co., Inc. (“Keystone”), a licensed real estate broker, sued Jack II. MacDonald and his coadventurers (“MacDonald”) to recover a $7,000 broker’s fee alleged to have been earned by obtaining a loan commitment complying with a written authorization. Judgment was entered for MacDonald following the granting of MacDonald’s motion for judgment pursuant to section 631.8 of...
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Defendant appeals from a judgment of conviction, following a trial by jury, of a violation of Penal Code section 667 1 (petty theft after conviction of a felony). 2 His contentions on appeal are as follows: (1) the trial court erroneously declared a mistrial in defendant’s first trial; (2) the trial court erroneously accepted defendant’s admission of a prior convicti...
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Petitioner, the Santa Fe Trail Transportation Company, a Kansas corporation authorized to do business in California, is a common carrier engaged in the transportation of freight by truck. Its stock is wholly owned *843by the Atchison, Topeka, and Santa Fe Railway Company (hereafter “Railroad”), also a Kansas corporation. In the month of October 1964, petitioner was required to pay to the State of ...
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Appellant appeals from a judgment granting respondent specific performance of a contract to convey real property to respondent and requiring appellant to account to the respondent for all rents and profits accruing from the property from May 16, 1966, until possession of the property is transferred to the respondent. Procedural and Factual Summary All of the parcels of property wi...
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This appeal concerns the priority of trust deeds pertaining to the same parcel of real property. The facts are somewhat involved, but are essentially as follows: In September 1958, appellants George R. Carpenson and Emma L. Carpenson sold a parcel of vacant land, hereinafter referred to as the Mario Motel property, to Karl Reichert and others; as part of the purchase price the Carpensons took a...
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Plaintiff Wilson Harrison, an employee of Oakdale Poultry Company, was injured in the course of his employment by the alleged negligent conduct of William Englebrick, Jr., and Safeway Stores, Inc. on October 15, 1961. He filed a complaint against Englebrick and Safeway in the Municipal Court, Santa Rosa Judicial District, Sonoma County April 3, 1962, within one year of his injury. On October 13...
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Convicted of pandering (Pen. Code, § 266i), defendant was sentenced to prison. Execution of sentence was suspended and she was admitted to probation on condition, among others, that she serve one year in county jail. She appealed, and was released on bail pending appellate determination. The judgment was affirmed (People v. Schultz, 238 Cal.App.2d 804 [48 Cal.Rptr. 328]) and defendant commenc...
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Battery on a peace officer. About 9 p.m. on September 20, 1965, William Perkins, a police officer of the City of Los Angeles, who worked as a part-time employee for Thrifty Drug Store in detecting and apprehending shoplifters, observed Hooker engaged over a period of 30 minutes in removing various items of merchandise from counters in the drugstore and secreting them on his person. When Ho...
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Petitioner seeks a writ of mandate commanding the respondent court to grant her motion for an order requiring the real party in interest to answer certain interrogatories. This is another chapter in the litigious life of the parties to the action now pending in the respondent court. The original complaint in that action was filed October 15, 1958. In September 1964, this court reversed a judgme...
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This ease is before us on certification from the Appellate Department of the Superior Court for Los Angeles County pursuant to rule 63, California Rules of Court. Section 367d of the Penal Code, enacted in 1911, reads: “Any person operating or driving an automobile, motor cycle or other motor vehicle who becomes or is intoxicated while so engaged in operating or driving such automobile, motor c...
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Petitioners are: United Pacific Insurance Company, a Washington corporation which claims to have a principal place of business in the City and County of San Francisco,- Gardiner Johnson, an individual who has his office in San Francisco but is a resident of Alameda County; and Eunice V. Hilliard, a resident of Alameda County. Petitioners are defendants in a wrongful attachment action pending in Su...
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In this case the original plaintiffs, Joseph F. D’Orazi and Violet B. D'Orazi, his wife, sued Victor W. D’Orazi, individually and doing business as D’Orazi Investment Company, and others, for moneys alleged to have been due to the plaintiffs; Joseph F. D’Orazi having died, the administratrix of his estate was substituted as a plaintiff. The complaint contained three counts, the first two dealin...
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Kern County Water Agency was established by an act of the Legislature in 1961 (Stats. 1961, ch. 1003, p. 2651; West’s Ann. Water Code App. 1959 Supp., 1966 Cum. Pocket Part, p. 89 [Deering’s Wat. Code, Uncodified Acts, Act 9098.]); by its terms the Agency in extent covered the entire area of the county. The Agency was created to enable it to acquire a supplemental water supply for its member units...
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The parties to this appeal are dentists. They were formerly associated together in the practice of their profession. At the termination of their association, appellant Corrigan sued respondent Cox for breach of contract, and the alleged wrongful taking and withholding of patients’ records. He demanded damages, together with an injunction against what he essentially described as unfair competition...
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This action was brought by Tad Travers against Arthur J. Louden and wife and Robert E. Highman seeking declaratory relief. The Loudens made a motion for summary judgment, the motion was granted and the action was dismissed as to all defendants. Plaintiff appeals. The respondents have not filed a brief. The amended complaint alleged that on August 12, 1963, Louden agreed to sell and Travers agre...
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We issued an order to show cause on the petition of the defendant-cross-complaining husband for a *3 writ of prohibition in this divorce action to examine the question whether the trial court had lost jurisdiction to reconsider and possibly extend an alimony award on the wife’s petition. The latter petition had been made after the final decree of divorce in which the subject of ali...
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On May 29, 1962, plaintiff Julia Casey filed a complaint to recover damages for personal injuries sustained in an automobile accident which occurred on December 6, 1960, while she was riding as a passenger in a ear driven by defendant Leonora Anschutz with the consent of the owner, defendant Mary Anschutz. After the cause was at issue, it was pretried. The pretrial order provided that the ...
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Plaintiff sued defendant General Film Laboratories Corporation (General), his former employer, for libel. The libel was uttered by Everett L. Hanson, plaintiff’s immediate superior at General. Hanson was also named as a defendant. A jury trial resulted in a verdict against both defendants for $15,000 compensatory damages. The jury awarded punitive damages as follows: $2,500 against General and ...
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After a jury trial, appellant was convicted of robbery (Pen. Code, § 211) and of burglary with intent to commit robbery (Pen. Code, §459). On his appeal from the judgment, the question presented is whether the trial court erred in admitting in evidence a police photograph of appellant. The photograph in question is in the format described in the vulgate as a “mug shot.’’ The information chargin...
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— On January 20, 1966, plaintiff, a mail-order vendor, filed in propria persona Complaint for Breach of Contract and for Unfair Competition against an advertising agency and two of its officers, praying for $756, $6,000 attornejr’s fees and $25,000 punitive damages. On February 1, 1966, defendant agency, The Bogerts, Inc. (hereinafter referred to as defendant), in addition to filing an answer, ...
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Evelyn E. Cosgrove, Joe J. Kendrick, Lee E. Stewart and Douglas Tyler, employees of the County of Sacramento, on August 7, 1963, filed this proceeding in the superior court praying for a peremptory writ of mandate against the County of Sacramento and its board of supervisors to require compliance with section 63, article XIV (Labor and Employment) of its charter, which reads as follows: “In fix...
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Appellants, who were defendants in an eminent domain action, appeal from a judgment entered upon a jury verdict awarding them $257,352.48 for 29.54 acres of land. The intended public use was a sewage disposal facility of the City of Santa Cruz. The condemned property is part of a parcel of 44.81 acres purchased by appellants in 1962 for $250,000. Appellants ’ first assignment of error is stated...
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This is an appeal from a summary judgment in favor of defendant, Walter F. Fitzgerald, in plaintiffs’ action for the wrongful death of their son, who died as the result of bodily injuries sustained on November 1, 1961, in an accident involving a 1958 Ford automobile driven by John E. Thompson and formerly owned by defendant. Defendant’s affidavit in support of his motion for a summary judgment ...
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Appellant Patterson filed a complaint against respondent Philco Corporation, his employer, and D. Joyce, a fellow employee for damages for his wrongful discharge. This is an appeal from the judgment of dismissal entered after the demurrer of respondent (Philco Corporation) to appellant’s first amended complaint was sustained with leave to amend. A demurrer by defendant Joyce, the fellow employe...
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This proceeding in mandamus seeks to secure an inspection, and copies, of statements made by the *70 mother and father of Ronald Lee Christy, a minor of the age of three years, who is plaintiff in an action against Mazzie Farms, Inc. and others (Kern County Superior Court No. 98709) ; these statements are alleged to have been made by Mr. and Mrs. Christy to an insurance investigator, who said t...
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On this appeal, by our reversal in 1965 of the order granting defendant’s motion for a new trial, we affirmed defendant’s conviction for two counts of selling and furnishing marijuana in violation of Health and Safety Code section 11531. (237 Cal.App.2d 320 [46 Cal.Rptr. 855].) In our decision we found no error excepting that which occurred when the district attorney commented in his argument o...
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Defendant appeals from the judgment of conviction entered upon a verdict finding him guilty of kidnaping for the purpose of committing robbery (violation of Pen. Code, § 209), 1 assault with a deadly weapon on a peace officer (violation of § 245, subd. (b), possession of a firearm by a convicted felon (violation of § 12021), and two counts of robbery (violation of § 211). Defendant’s contention...
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Plaintiffs appeal from a judgment of dismissal entered upon the sustaining of defendant’s general and special demurrers to their Fourth Amended Complaint (hereafter “complaint”) without leave to amend. The following factual summary is based upon the allegations of that complaint, which allegations are deemed to be true at this point. Plaintiffs own a residential lot in a Sonoma County tract known ...
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In a grand jury indictment, defendants Gant and Romero, together with Patrick M. Buckman, Salvatore S. Polani and Winston Major, were charged with conspiracy (Pen. Code, § 182) to commit burglary and also with burglary (Pen. Code, § 459). The indictment charged that all were armed with deadly weapons during the commission of the alleged crimes. 1 A jury acquitted Buckman on both counts; found...
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252 Cal.App.2d 120 (1967) FARMERS INSURANCE EXCHANGE, Plaintiff and Respondent, v. ERNEST C. BROWN et al., Defendants and Appellants. Civ. No. 23466. California Court of Appeals. First Dist., Div. Three. June 28, 1967. Smith, Parrish, Paduck & Clancy, Thomas Schneider and William Shannon Parrish for Defendants and Appellants. Clark, Heafey & Martin and Chris G. Gasparich for Plaintif...
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In a nonjury trial the defendant was adjudged guilty of burglary of the second degree. He appeals from the judgment. Appellant contends that there was no probable cause for arresting or searching him, and that the court erred in receiving in evidence certain articles which allegedly were obtained from him by illegal arrest and search. Burglary was committed at the office of Mr. Avery, at 936 Hunti...
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This appeal involves a question of first impression in this state: what are the legitimate criteria for the exercise of the trial court’s discretion, when a mother, divorced from the father of her children and since remarried, petitions to have the surname of the children changed to that of her second husband and the natural father objects? Laurie Lynn Worms, born December 21, 1953, and Curtis ...
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The City Council of the City of Coachella appeals from a judgment directing the issuance of a peremptory writ of mandate commanding the city to reinstate the respondent as its chief of police and awarding him judgment for accrued salary. *139 Coachella being a general law city, the chief of police is appointed and holds office “during the pleasure of the city council.” (§§ 36505-36506, Gov. C...
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Defendant was charged in two separate counts with the crime of assault with intent to murder (Pen. Code, § 217) his wife and a woman friend of his spouse. The public defender was appointed to represent the defendant; a plea of “not guilty” was entered; a jury trial was waived; and on July 17, 1963, defendant was found guilty on both counts. He was sentenced to state prison with the sentences to r...
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The record before us is the most verbose and futile we have yet had the misfortune to dissect. It comprises four complaints, the original and three amended, answers and counterclaims, numerous affidavits and declarations in support of a number of repetitive and prolix motions. The motions embrace requests for reconsideration of rulings, summary judgment, judgment on the pleadings, early setting...
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Wrongful death action. Charles and Hazel Hibbs appeal from a judgment dismissing the Los Angeles County Flood Control District as a defendant on the ground that no cause of action had been stated against it. This action is for the wrongful death of the plaintiffs’ son, seven years of age, who drowned on February 8, 1962, in the improved channel of the Los Angeles River at Canoga Park. In thei...
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The judgment in this cause was affirmed August 17, 1965. (People v. Hudgins, 236 Cal.App.2d 578 [46 Cal.Rptr. 199].) Pursuant to judgment and mandate of the Supreme Court of the United States (Hudgins v. California, 386 U.S. 265 [18 L.Ed.2d 43, 87 S.Ct. 1035] ) vacating the judgment and remanding the cause for reconsideration in the light of Chapman v. California (386 U.S. 18 [17 L.Ed...
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The plaintiffs, Lemuel F. Sylvester, Jr., and his wife, Thetis L. Sylvester, appeal from a judgment of dismissal granted in Kern County case No. 87180 on the ground that recovery was barred by collateral estoppel. In a prior action (Kern County No. 86796), filed June 18, 1963, the Soulsburgs had sued the Sylvesters to terminate a contract for the purchase of real and personal property; that sui...
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The petitioner, Louie Queriolo Trucking, Inc., is a corporation plaintiff in an action pending in the Superior Court of Kern County and numbered therein 95463. The suit is against Tumblin Company, a copartnership, and C. R. Tumblin, Wilbur Rickett and J. C. Reaves, Jr., its alleged members, arising from an automobile accident in which a Kenworth tractor with a utility semi-trailer attached and loa...
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252 Cal.App.2d 202 (1967) ANGELINA DI NAPOLI, Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; TEJON POTATO COMPANY et al., Real Parties in Interest. Civ. No. 823. California Court of Appeals. Fifth Dist. June 29, 1967. Angelina Di Napoli, in pro. per., for Petitioner. No appearance for Respondent. Borton, Petrini, Conron & Brown and Warren C. Wetteroth for Real Parties in ...
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Bank of America National Trust and Savings Association, plaintiff below, which we shall call the Bank, appeals from a declaratory judgment in favor of respondent Controller of California. The judgment relates to the rights of the parties under the Uniform Disposition of Unclaimed Property Act, herein called the act. The act, which was enacted as sections 1500-1527, Code of Civil Procedure,...
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Defendant has appealed, through separate notices of appeal filed individually and by his attorney, from a judgment sentencing him to life imprisonment following his conviction by the court of murder in the first degree. (Pen. Code, §§ 187, 190.) *225 The defendant, following his indictment for the murder of his wife, entered pleas of not guilty and not guilty by reason of insanity...
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Action for damages for assault and battery committed by appellant B. Haynes while acting in the *258 course and scope of his employment as a police officer of appellant city. After a nonjury trial, the court entered judgment against the city and Haynes in the amount of $12,000 in compensatory damages and against Haynes alone in the amount of $5,000 as exemplary damages. Both appeal from the jud...
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After a nonjury trial, defendant appeals from a judgment of conviction of violation of section 11500 of the Health and Safety Code (possesion of heroin). The evidence most favorable to the judgment establishes that appellant had in his possession at the time of his arrest a small quantity of heroin and a kit of paraphernalia to be used for injection of that narcotic. The only question in the appea...
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In this action for damages for personal injuries resulting from a gunshot wound, judgment upon a verdict was in favor of the defendants. Plaintiff appeals from the judgment. Appellant contends that the court erred in not giving his requested instructions on the doctrine of conditional res ipsa loquitur; and that certain comments made by defendants’ counsel in his argument to the jury const...
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Appeal from a judgment of conviction of violation of section 487, Penal Code, entered in the Superior Court in and for the County of San Bernardino. On September 21, 1963, Mr. Paul Edward Teal, the manager of the Gordon Ayres Camera Shop in Ontario, primarily a retail store for the sale of cameras and supplies, purchased for the store a Hassleblad camera made in Sweden. It remained in the store’s ...
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This is an appeal by defendant from a judgment of conviction for two counts of armed robbery. We have concluded that there is no merit to his sole contention that certain evidence was inadmissible on the basis that it was obtained as a result of an illegal search and seizure. The pertinent factual background of the instant case is as follows: Michael O’Neal testified that on September 13, 1965 he ...
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This petition seeks review and annulment of an award of workmen’s compensation benefits *329 to Hugo W. Ratzel for permanent disability rated at 14% percent. Petitioner, the compensation insurance carrier, contends that the referee included in his instructions to the Permanent Disability Rating Bureau a factor of disability which has no support in the evidence and, therefore, ...
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Appellant and his codefendant (not a party to this appeal) were tried by a jury and convicted of three counts of armed robbery (Pen. Code, § 211). This appeal is from the judgment. *337 The evidence pertinent to the issues on appeal will be summarized. Mrs. Dolores Widgins testified that about 2:30 p.m. on December 11, 1964, appellant and his codefendant, entered the office of the Southern ...
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Appellant corporation instituted this action against the respondents in the Superior Court of Sacramento County to recover the county taxes it allegedly paid by mistake on a parcel of real property which it did not own. The respondents filed general and special demurrers to appellant’s first amended complaint which were sustained by the trial court with leave to amend. Appellant, however, elect...
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Appellant, an attorney at law, was adjudged guilty of two counts of contempt (1) for his wilful misrepresentation to respondent court on Sepember 13, 1965, of the fact that he was required to appear in the federal district court in Chicago on September 14, 1965, for pretrial in Sibley v. Illinois Central Railroad; and (2) for his wilful failure to appear for trial of ...
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Cross-complainants appeal from the judgment entered in respondent’s favor following a non jury trial of their cross-action seeking recovery under an indemnity agreement for attorneys’ fees incurred in defense of the primary action. In essence, the determinative question presented hy this appeal is the following: Is the indemnitee under the terms of the indemnity agreement here involved ent...
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The defendant school board, headed toward the acquisition of a school site within two miles of an airport, had its plans brought under review by this action, commenced by some residents and taxpayers of the school district, who sought a judgment declaring the selection and acquisition of the proposed site void, and enjoined. A demurrer to the complaint, already once amended, was sustained without...
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Defendant has appealed from a judgment sentencing him to state prison following his conviction, after trial by the court, of burglary in the second degree (Pen. Code, §§ 459-460) 1 with an admitted prior conviction of a violation of the Jones-Miller Narcotic Act by a federal court. In his notice of appeal he specified “Excessive Bail,’’ “Appointment of Counsel” and “Illegal Search and Seizure...
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Defendant appeals from a judgment of conviction, following a jury trial, of receiving stolen property (violation of Penal Code section 496). His contentions on appeal are as follows: (1) Certain statements which he made to the police were improperly admitted into evidence since defendant was not advised of his right to counsel and his right to remain silent prior to making these statements; and (...
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Defendant was charged with possession of heroin for sale (Health & Saf. Code, § 11500.5) and possession of marijuana (Health & Saf. Code, § 11530). Trial was by the court, the People’s case being submitted on the transcript of the preliminary examination. The defense called the People’s witnesses for further cross-examination, and defendant testified, admitting two alleged prior felony convictions...
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Plaintiff appeals from an order granting a motion to quash service of summons on defendant, a Wisconsin corporation. Defendant was served in the manner provided by section 411, subdivision 2, of the Code of Civil Procedure by service upon the Secretary of State of the State of California who, in turn, sent defendant a copy of the summons and complaint by certified mail to its address in Wiscons...
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Defendant was convicted of two counts of robbery. He appealed in propria persona. No request for the appointment of counsel was made. No brief was filed and, on September 6, 1962, the appeal was dismissed under rule 17a of the California Rules of Court. Defendant has recently retained counsel through whom he has filed a motion seeking recall of our remittitur and vacation of the judgment of dismis...
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Defendant was convicted of one count of burglary and three counts of forgery. He appealed in propria persona and duly applied for the appointment of counsel. The request was denied, this court saying, in its opinion deciding the appeal: "This court having made an independent investigation of the record and having determined that it would neither be advantageous to defendant nor helpful to this cou...
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Plaintiffs appeal from a judgment entered after the sustaining of a demurrer to their second amended complaint without leave to amend. *441 The second amended complaint (referred to herein as complaint) is entitled “For Injury to Real Property” “ (Inverse Condemnation).” It alleged the following: Plaintiffs acquired a parcel of land (referred to herein as parcel 2) in 1962, a part...
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Plaintiff brought an action for refund of personal property taxes for 1964-1965 paid under protest. The complaint alleged that a petition was filed with the Board of Equalization on July 14, 1964 and Avas denied, of which petition a copy was attached to the complaint. That petition alleged: “. . . that the Appraiser through mathematical error or inadvertence has assessed to Petitioner prop...
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This is an appeal from an interlocutory decree of divorce. On January 23, 1964, Odessa R. Bause (hereinafter referred to as wife) filed a complaint in divorce against Lawrence John Bause (hereinafter referred to as husband). The husband answered the complaint on February 3, 1964, and filed a cross-complaint for divorce. An answer to the cross-complaint was filed February 25, 1964. No demurrers wer...
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This is an appeal from a money judgment for plaintiff after he was bitten and injured by defendant’s dog. Burden filed his complaint on October 26, 1961, alleging, among other things, that defendant was the owner of a certain dog of mixed breeding; that on July 10, 1961, while on defendant’s premises, plaintiff was attacked and bitten by the dog; that plaintiff suffered severe injuries and...
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This is an appeal by each of the named defendants from a judgment of conviction of two counts of robbery. In an information filed in Los Angeles County on April 28, 1965, defendants were jointly charged in count I with robbing Ronnie Levine of certain suits of clothes of the value of $7,230 and of $115 in money on or about February 23, 1965, and further it was charged that at the time of the co...
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Defendant was indicted with two codefendants for the murder of Roberto Jordan (§ 187, Pen. Code) and the armed robbery of Robert Crosley (§211, Pen. Code) ; he was convicted of both crimes and the death penalty was imposed. Following an automatic appeal, the judgment as to defendant was reversed by the Supreme Court and the cause remanded for a new trial (People v. Clark, 62 Cal.2d 870 [44 Ca...
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The proceeding is by city employees seeking a writ of mandate commanding the City of Los Angeles, and certain of its departments, to fix the salaries and wages of city employees for the fiscal year 1962-63, which the defendants had failed to do. It is a representative proceeding on behalf of all city employees. Issue was joined, trial was had and a writ of mandate was issued and served. The defen...
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Frances C. Rogars instituted the present action against St. Jude Hospital for damages for injuries she suffered as a patient, allegedly caused by negligence of the defendant’s nurses. In a jury trial verdict and judgment were in favor of the defendant, and the appeal is from the judgment. The gravamen of the action, in summary, is that following surgery plaintiff, while in the bathroom of her h...
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This appeal has been before this court and once decided April 21, 1966, in an opinion certified for nonpublication. By that opinion we affirmed as to each defendant-appellant (Jimmie Garrison and Raymond Belcher) a second degree burglary conviction following a jury conviction. Hearing was denied by the California Supreme Court. After Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct...
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The Department of Alcoholic Beverage Control accused appellant, the holder of a general on sale liquor license, of permitting a bookmaking violation (Pen. Code, § 337a) at the licensed premises. After a hearing before the Office of Administrative Procedure, the department adopted the hearing officer's proposed decision that the license be suspended for 15 days. The licensee successfully appealed ...
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This is an appeal from a judgment of conviction of murder in the first degree. *526 In an information filed in Los Angeles County on December 31, 1964, defendant was charged with murdering Marshall Allen Taylor on December 5,1964. (Pen. Code, § 187.) A jury trial was duly waived and the judge found defendant guilty of murder in the first degree and sentenced defendant to the state prison for ...
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This is an appeal from the “sentence imposed Dec. 29,1965 in Dept. 110 of Superior Court ...” In an information filed in Los Angeles County on March 27, 1962, defendant in count I was charged with assaulting Florence Fisher with a deadly weapon with intent to commit murder on or about March 1, 1962, and in count II with assaulting Valerie B. Gilmore with a deadly weapon with intent to commit murde...
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The appellant has filed a petition which he has designated as a “Petition For Writ of Error” whereby he seeks to have his appeal reinstated. We have treated the petition as an application to recall remittitur and find no basis for recalling the remittitur and reinstating the appeal. We have, however, on our own motion, considered the petition in the light of Anders v. California, 386 U.S. 738...
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Defendant appeals from a judgment of conviction, following a trial by jury, of possession of a sharp instrument by a person confined in a state prison in violation of Penal Code section 4502. 1 As to the first contention on appeal, that section 4502 is unconstitutional, we find it to be without merit. As to the other contention, that the trial court abused its discretion in imposing a consecuti...
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Defendant was found guilty of assault with a deadly weapon (§ 245, Pen. Code) ; his motion for a new trial was denied. Thereafter criminal proceedings were adjourned and defendant was remanded to the Department of Corrections for diagnosis and treatment (§ 1203.03, Pen. Code). Returned to the superior court, defendant renewed his motion for new trial which was denied. No finding on the prior felo...
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This is a proceeding for a writ of mandate requiring the respondent court to vacate its order of April 18, 1967, action number 835754, entitled United States Liability Insurance Company v. Haidinger-Hayes, Inc., granting defendant’s motion to dissolve and discharge the writ of attachment which plaintiff had obtained concurrently with the filing of its complaint. The material facts are admitted....
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Plaintiff appeals from a judgment of dismissal following an order sustaining a demurrer without leave to amend. The sole point involved is whether an action may be maintained against a decedent’s personal representative upon an unverified claim. We hold that the provisions of section 705, Probate Code, require that a claim must be verified, and that no equitable considerations are present ...
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Petitioner (hereafter “insurer”) seeks a, writ of mandate to compel respondent superior court to set aside its order vacating an arbitration award which denied any recovery to real party in interest (hereafter “insured,”). The insured was injured in a two-car collision with an uninsured motorist. The insurer had issued an insurance policy to the insured, containing the usual uninsured motorist ...
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Appellant was convicted of violation of section 20001 of the Vehicle Code (hit and run in personal injury accident). ; The vehicle of which appellant, Peter Limón, was the driver was seen by the victim of the accident a moment before it struck him. The victim, Samuel Murdock, had been walking along a sidewalk. Murdock saw no one in the car but the driver. At that time the car was only five feet...
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Plaintiff sued for damages ($100,000 general, $25,000 punitive, costs incurred for medical care, loss of wages and costs of suit) for personal injuries arising out of an assault and battery. The cause was tried to the court sitting without a jury. The facts as they appear in the findings show that on December 13, 1963, defendant struck, assaulted and attacked plaintiff causing severe personal inju...
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This Petition to Determine Heirship was filed by Julia II. Marsh and Jack Shubin, as devisees named in the *589 will of their father, Jim A. Shubin, deceased. Harry Shubin, named executor in the will, is a son of decedent. 1 The decedent died on June 27, 1965, leaving a will dated March 7, 1957, and naming his son Harry as executor. The will, in paragraph Fourth, dispo...
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Atlas Hotels, Inc. appeals from a judgment enforcing the City of San Diego’s 4 percent transient room tax (San Diego City Ordinance No. 9033 [New Series]). The ordinance requires all room tax revenues be used solely for promoting the City of San Diego, and allocates all room tax revenue to the San Diego Convention and Tourist Bureau. The stipulated question is whether the transient room ta...
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Plaintiff, Darlene Harvey, a Minor, appeals from an order denying her petition, filed pursuant to former Government Code, section 912, requesting permission to present a late claim against the defendant City of Holtville. Plaintiff brought the instant action to recover damages for injuries allegedly caused by the dangerous and defective condition of property owned by defendant. A condition...
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Defendant National Automobile & Casualty-Company (National) appeals from an adverse judgment in an action for declaratory relief. The plaintiff sought a declaratory judgment as to which of the two defendant insurance companies was obligated to furnish insurance benefits to her because of damage suffered by her from an uninsured motorist. The decree placed the obligation upon Nat...
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This proceeding in prohibition was brought to restrain the Superior Court of San Bernardino County from proceeding further in a quiet title action, the subject matter of which is alleged in the petition to be in the State of Arizona. Petitioner (River Farms, Inc.), an Arizona corporation, is a defendant in the quiet title action. The real parties in interest are Erwin P. Werner and ...
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In the fall of 1961 respondent, a licensed architect, contacted appellants who were joint owners of two adjacent parcels of real property located near the shores of Lake Tahoe, California, and secured their permission to submit a design proposal for the construction of a motel on their land. A month or two later respondent prepared an architectural rendering of a four-story motel and in due tim...
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A jury found defendant guilty of kidnaping (§ 207, Pen. Code) and rape (§ 261, subd. 3, Pen. Code); the court struck the allegation from both counts that he had been armed with a deadly weapon, a knife. Defendant’s motion for a new trial was denied. He appeals from the judgment. The purported appeal from order denying the motion is dismissed. We view the evidence in a light most favorable to th...
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The State of California seeks a writ of mandate to compel the respondent court to grant its motion for a change of venue. The action was commenced in the Superior Court of Los Angeles County, against three corporations, Volkswagon, Inc., Universal Motors, Inc., and Goodyear Tire Company, and the State of California, to recover damages for personal injuries resulting from a highway accident...
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In a trial without jury Richard Louis Balsz was convicted of the possession of heroin for sale, was found to have suffered two former narcotic felony convictions and was sentenced to state prison. He appealed from the judgment in propria persona; we appointed counsel. Balsz was arrested by Officers Slagle and Maga in front of the Chicago Hotel, 323 North Soto Street in Los Angeles. The officers...
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This mandate proceeding is the outgrowth of a personal injury action pending in the Superior Court of Sacramento County. Petitioners are the defendants. Real party in interest is the plaintiff Charles F. Williams. Under the provisions of Code of Civil Procedure section 598 the defense moved in the trial court for a bifurcated trial at which the issue of liability would be heard and decided before...
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In a trial by jury the defendant was found to be guilty of robbery of the first degree. Probation was denied and he was sentenced to be punished by imprisonment in the state prison for the term prescribed by law. He has appealed from the judgment. The defendant contends that a tape recording of a conversation between him and a visitor at the jail was erroneously received in evidence contrary to...
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Plaintiffs are the heirs of Byron W. Orser. Decedent was shot accidently by one of two of the named defendants: Vierra or Jacobson. Plaintiffs filed this wrongful death action against all defendants. They appeal from summarjr judgments in favor of four of the above named defendants: George, Hughes, James and Young. They also appeal from a summary judgment in favor of Jacobson, a fifth defendant...
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The appeal is from a judgment establishing a claim against the estate of John V. Miscione, deceased, after its rejection by defendant administrator. The claim was rejected and the action was defended upon the ground that Miscione had been declared a bankrupt and had been discharged from all his debts. The court found that Mizrahi or his attorneys had no notice or knowledge of the bankruptcy proce...
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Plaintiffs, by a third amended complaint in three counts, sought declaratory relief, injunction and damages; alleged they were heirs at law of Elizabeth Bohn, deceased ; also alleged Elizabeth Bohn, while of unsound mind and acting under undue influence by and fraud of Christine Smith, caused all of her property, real and personal, to be placed in joint tenancy with Christine Smith; and further...
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This is an appeal from an order of the Superior Court of Tuolumne County denying appellant’s request for an order directing respondents to release a bank account. Since the circumstances of this appeal are somewhat unusual, we will set forth the facts in detail. In 1961 Mary Spencer, who had engaged the respondents as her attorneys, instituted an action in the Superior Court of Tuolumne Co...
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This appeal is from a judgment granting a writ of mandate ordering Max Rafferty, Superintendent of Public Instruction, to certify to Alan Cranston, State Controller, that $24,833.88 is due respondent, County of Tuolumne, under section 20211 of the Education Code, and commanding Cranston to draw his warrant on the general fund of the State of California in that amount payable to the County Treasur...
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King filed a personal injury action in Contra Costa County against Frazier, which arose out of a collision between a motorcycle operated by King and a pickup truck operated by Frazier. Allstate Insurance Company had issued a liability insurance policy covering the truck and retained attorney Kitehel to defend the action. *700 Frazier failed to appear at the trial and the jury...
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Plaintiff John Karpinski brought this action against defendants Gene and Ruth Collins and the Santa Clara Creamery to recover secret rebates which plaintiff was allegedly compelled to pay defendants in order to secure and retain a Grade A contract for the sale of plaintiff’s milk. Plaintiff, the sole witness at the trial, was a dairyman. Prior to April 1962, he had sold his milk to a chees...
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Plaintiff, as purchaser of a vacant hillside lot in the Lake Hollywood area, sought damages and, in the alternative, rescission and restitution by reason of certain fraudulent representations respecting the suitability of the parcel for construction of a dwelling thereon. He appeals from an adverse judgment, contending that the evidence was insufficient to support certain material findings. In ...
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This is an appeal from a money judgment in favor of plaintiff and against defendant Southland Construction Co., Inc. (sometimes hereinafter referred to as South-land) and Citizens Insurance Company of New Jersey, a corporation (sometimes hereinafter referred to as Citizens), the bondsman for Southland. Cunningham brought the action for money, for the value of materials furnished to Southland on a ...
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This is an appeal from a judgment of conviction for murder in the first degree and from an order denying a motion for new trial. Defendant was found guilty by jury verdict, his motion for new trial was denied, he waived jury trial on the penalty and was sentenced by the court to life imprisonment. The evidence discloses that on the evening of December 3, 1964, Lee Harris visited the 1044 Club i...
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The trial court found defendant guilty of rape (§ 261 subd. 1, Pen. Code) and denied his motion for a new trial. He appeals from the judgment and order denying the motion. The purported appeal from the order is dismissed. Around 8:30 in the morning of May 14, 1965, Minnie Jefferson, 16 years old, in A-ll grade at Fremont High School, was on her way to school when defendant drove up in a pink 19...
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The Department of Water and' Power of the City of Los Angeles seeks review and annulment of an award of workmen’s compensation benefits to an employee, a meter reader, who sustained injury when, while off work on a Saturday, he participated in an agility test given by the City of Los Angeles as a part of an open competitive test for a position with the department, as a cable splicer helper. ...
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On May 13, 1965, Oleo King, born December 28, 1919, sustained an injury arising out of and in the course of his employment as a plasterer. The injury caused total temporary disability through November 30, 1965, for which he was paid temporary disability benefits at the maximum rate. Award issued for permanent disability benefits of $4,305 payable at the rate of $52.50 per week for 82 weeks. The...
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Appeal from judgment of dismissal after sustaining of demurrer without leave to amend. The plaintiffs filed their first amended complaint, wherein it was alleged in substance that the plaintiff Charles Oliver Bean (hereinafter referred to as “Bean”) is the principal party involved herein as to all matters; plaintiff National Automobile and Casualty Insurance Co., a corporation (hereinafter...
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Defendant was charged with escape from a state prison, also with one count of robbery, two counts of kidnaping and 12 prior convictions. He admitted five of the “priors,” denied the others. The jury found defendant *763 guilty of the robbery charge, the two counts of kidnaping and found seven of the prior convictions to be true. 1 During the trial defendant withdrew his not guilty plea to the...
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Respondents for several years prior to the institution of this action had been writing ordinary group life insurance on the lives of California veterans insured under the commonly called “Cal-Vet” loan program, pursuant to certain agreements which they entered into with the California Department of Veterans Affairs. By supplemental agreement dated January 20, 1960, effective February 1, 1960, t...
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This is an appeal by defendants City and County of San Francisco and L. A. Willbrand from a judgment notwithstanding the verdict in favor of plaintiff Alice Spillman. 1 Plaintiff sues for personal injuries allegedly sustained when the car in which she was riding was struck from the rear by a vehicle owned by the City and County of San Francisco and negligently operated by its emplo...
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This is an appeal by Central Coast Fryer Farms, Inc. (hereafter referred to as “Central”) from a judgment of dismissal entered upon the sustaining without leave to amend of a general demurrer to Central's complaint in intervention. On July 16,1963, plaintiff Nulaid Farmers Association filed a complaint to foreclose certain chattel mortgages held by it against Vito LaTorre and others, and asking...
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This is an appeal from a judgment for defendant, City of San Pablo (hereafter City), in an action seeking declaratory relief to determine the constitutionality of a retroactive zoning ordinance requiring all portable or temporary vending establishments to obtain a use permit. The major contentions concern the constitutionality and interpretation of the ordinance and whether the trial court corr...
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On this appeal by the administratrix of the estate of the decedent from an order directing her to pay $250 for legal services rendered to the public administrator and $12 costs of filing his unsuccessful petition, the only question is whether the court abused its discretion. The facts are not in dispute. The decedent, Frederico Morinini, also known as Fred Morinini, a resident of Monterey County, ...
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Melvin E. Kassan appeals from a summary judgment granted respondents Russell W. Bledsoe and Leon *812 J. Garrie in Kassan’s action for malicious prosecution against these and other defendants. Kassan is an attorney who was originally served as a “Doe” defendant in certain actions directed against several defendants, principal among them one H. Red or Hugh Fraser, his client. Bledsoe and Garri...
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This is an appeal by David Dean Siplinger from a judgment of conviction on one count of first degree murder (Pen. Code, § 187) and two counts of assault with a deadly weapon with intent to commit murder (Pen. Code, § 217). Appellant pleaded not guilty and not guilty by reason of insanity, but the jury found him guilty as charged and sane on the date the offenses charged were committed. The death ...
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This is an appeal from a judgment in a-mandamus proceeding decreeing issuance of a writ of mandate directing Maybelle B. Spencer, as treasurer and license collector of the City of Anaheim, a respondent in the proceeding, to issue a business license to Web Service Company, Inc., the petitioner in the proceeding. 1 The issues on appeal concern the applicability and constitutionality ...
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Defendants appeal from an award of $26,500 in a condemnation action wherein plaintiff county sought 10 acres of defendants’ 27-acre tract. The appeal rests solely upon the alleged error of the trial court in refusing to hear testimony, outside the presence of the jury, to prove that a letter *841 written on behalf of plaintiff county to the defendants constituted a statement of value and as suc...
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A jury convicted the defendants, Teoñlo Gomez and Gilbert Gomez, of the crimes of kidnaping for robbery, accompanied by bodily harm, in violation of Penal Code section 209, sex perversion in violation of Penal Code section 288a, sodomy in violation of Penal Code section 286, and robrey, of the second degree, in violation of Penal Code section 211. The trial judge denied probation and a new trial,...
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In this action brought by plaintiff, Holmes Packaging Machinery Corp., to recover from defendant, Byrum C. Bingham, money allegedly due in the form of rent under two leases of personal property, further to recover attorney’s fees under these agreements, and finally to have the respective rights of the parties under these agreements determined, Holmes appeals from a judgment in favor of Bingham....
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Defendant appeals from a judgment of conviction of second degree burglary in violation of Penal Code section 459. The Record At approximately midnight on June 6,1966 Officers William Ambrose and Daniel 0 ’Connor of the Concord Police Department arrived at the Bel Air Pharmacy in Concord in response to a silent burglar alarm at police headquarters. Upon arriving at the pharmacy, Ambrose exam...
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Plaintiff, Everett J. Matthews (hereafter Matthews), appeals from an adverse judgment in his action for declaratory relief against W. B. and Betty Starritt (hereafter Starritt), holding that he was not entitled to a real estate broker’s commission under either the exclusive listing agreement or the deposit receipt. He contends that the trial court erred in construing the written agreements of t...
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This is an action for slander. Demurrer to the second amended complaint (referred to herein as “the complaint”) was sustained with leave to amend, but plaintiff declined to amend and judgment of dismissal followed. In general, the complaint charges that defendants conspired, on or about October 9, 1962, to defame and to disparage plaintiff in matters connected with his occupation and profe...
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Plaintiff was injured while riding a bicycle which was struck from the rear by an automobile operated by defendant. A jury having found in plaintiff’s favor, defendant successfully moved for judgment notwithstanding the verdict and, in the alternative, a new trial, contending that the evidence was insufficient to support the verdict and that the court erred in instructing the jury on the doctri...
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Defendant pleaded “not guilty” and “not guilty by reason of insanity” to an information charging him Avith three violations of section 217 (assault with intent to commit murder) of the Penal Code. After a nonjury trial he was found guilty and legally sane at the time of the commission of the offenses. On appeal the only contention made by privately retained counsel is that the evidence doe...
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In 1951, plaintiff K. C. Hawkins, an Illinois physician and surgeon, defendant Edward J. Rehfeldt, and one Hanson formed a corporation known as Transonic, Inc. to deal in electronic equipment; the three were then the sole owners of the capital stock of the organization. In 1957, *920Mr Rehfeldt purchased the stock previously owned by Hanson, and in 1958, the stock of the plaintiff, Hawkins. The la...
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Janine J. Johnston, as guardian for her minor children, Marie and Carole Johnston, appeals from an order of the trial court which in relevant part instructed Croclcer-Citizens National Bank, the executor of the will of Elizabeth I. Johnston and testamentary trustee under that will, that it shall not honor any writs of execution or attachment levied against Joseph Johnston, the beneficiary of a tru...
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Defendant has appealed from a judgment sentencing him to life imprisonment following jury verdicts which found him guilty of murder in the first degree in connection with the charged infanticide of his seven-year-old daughter, and thereafter fixed the penalty at life imprisonment. Defendant asserts that the trial court erred in proceedings for the selection of the jury, in rulings which admitte...
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Plaintiff appeals from an order dated March 5, 1965, dismissing his action for failure to bring the matter to trial within the time required by section 583 of the Code of Civil Procedure. Plaintiff argues that: (1) the court was without jurisdiction to grant defendants’ motion for dismissal as the proper notice was not given; (2) the five-year statutory limitation provided for in said section r...
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On October 23, 1963, plaintiff filed a complaint to establish paternity; on February 21, 1966, judgment of dismissal without prejudice to refiling was entered. On plaintiff’s motion to vacate judgment of dismissal under section 473, Code of Civil Procedure, order was made on May 18, 1966, Amcating the judgment only upon performance within 30 days by plaintiff of certain conditions precedent, i....
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— Defendant John Tyrone Reed was charged, along with codefendant Cockerham, with violation of Penal Code section 211, robbery (count I); violation of Penal Code section 459, burglary (count II); and that at the time of commission of these offenses defendant was armed with a deadly weapon, a gun, and committed an assault upon a person; violation of Penal Code sections 664 and 187, attempted murder...
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Petitioner,1 now confined in Folsom State Prison at Represa, petitions this court for a writ of habeas corpus.2 Sole Question Pbesented Where one convicted of violation of section 11530 of the Health and Safety Code (possession of marijuana) is committed as a narcotic addict for placement in the California Rehabilitation Center and the Adult Authority revokes his parole on prior convictions may he...
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In a jury trial, defendant was found guilty of murder of the second degree. He appeals from the judgment and from the order denying his motion for a' new trial. Appellant contends that the court erred (1) in refusing to give requested instructions' on manslaughter, and (2) in receiving evidence of statements made by defendant while he was in the custody of the police. Jo Ann Pickrell was murd...
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Appellants Santa Maria Joint Union High School District and its Board of Trustees (“district”) were respondents to a writ of mandate below. Respondent Williams, petitioner below, had started the proceedings under section 1094.5 of the Code of Civil Procedure. She was seeking reinstatement as a teacher with the district. There had been a hearing in connection with her dismissal before the Board of...
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The defendant was charged by information number 284070 filed by the District Attorney of Los Angeles County on January 27, 1964, with two counts of burglary alleged to have been committed on December 29, 1963, and on January 7, 1964, respectively. He was also charged with having suffered three prior convictions of felony, two for burglary and one for robbery, and that he had served a term of impr...
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Plaintiffs-respondents, as owners of a parcel of real property in the City of Santa Ana, filed a complaint to quiet title as against defendant-appellant and to compel the latter to remove from the property a series of three utility poles supporting wires for the transmission of electrical energy. The trial court rendered judgment confirming plaintiffs ’ ownership of the land and requiring remov...
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Aside from what we later hold to be a futile attempt by respondents to attack an earlier and unconnected ruling, this case exclusively involves a judgment of dismissal after the sustaining of special and general demurrers to the second amended complaint without leave to amend. There are two general issues to be determined: 1) Are the rulings sustaining the demurrers correct? and 2) If so, w...
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Precision Automotive, a corporation, hereafter “insured,” sustained a fire loss on March 24, 1963, which was admittedly covered by a fire insurance policy issued to it by Northern Insurance Company of New York, a corporation, hereafter ‘ ‘ insurer. ’ ’ On March 23, 1964 the insured filed action 541623 in the San Francisco Superior Court against the insurer to recover the amount of its claimed l...
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These consolidated appeals arise out of a dismissal by the Municipal Court of the Fresno Judicial District of complaints against the defendants, charging them with a violation of section 8-120 of the Fresno Municipal Code, which section provides: “Sec. 8-120. Drinking On Street Or Playground. No person shall drink any beer, wine, or other intoxicating beverage on any street, sidewalk, alley, highw...
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Plaintiffs Central California Irrigation District, a tax-exempt public agency (hereafter referred to as the district), and Lewis V. McCaslin (hereafter referred to as McCaslin) commenced this action by filing a complaint in the Superior Court of Stanislaus County against the assessor, the tax collector and the board of supervisors of said county, to declare void a possessory interest assessment...
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Plaintiff appeals from an order of the superior court in which the court quashed a levy and execution on defendant’s automobile on the ground that plaintiff’s claim against the defendant had been discharged in bankruptcy. The facts are as follows: Defendant, a licensed chiropractor, treated plaintiff on September 20, 1963, for a condition known as hemorrhoids. Thereafter, on September 18, ...
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This is an appeal from the denial of plaintiff’s motion to offset the value of possession and of rents received by defendants against an award of interest under the provision of section 1255b of the Code of Civil Procedure. The People of the State of California (now appellant) filed a complaint in eminent domain to condemn a portion of certain property generally known as the Los Robles property...
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Defendant appeals from a judgment entered upon a jury verdict finding him guilty of two counts of burglary second degree, a violation of section 459 of the Penal Code. A brief summary of the facts will suffice as background for discussion since neither of defendant’s two grounds of appeal attacks the sufficiency of the evidence. Defendant, who represented himself in the trial court, urges a revers...
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This is an appeal by defendant D. J. Arques from an order denying his motion to set aside a default and a default judgment entered on July 30,1965. On February 19, 1963, plaintiff Blanche McCreadie filed a complaint in the Superior Court of Marin County against defendant D. J. Arques individually and doing business as Arques Shipyards and against Nick Miscovich alleging breach of contract, negl...
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The Baird syndicate, the seller, sought damages against Wendt, the buyer, for breach of a contract to purchase a leasehold interest in real property in Hawaii. Wendt counterclaimed for damages for breach of the same contract. The trial court found both parties in default under the contract and refused to award damages to either, a decision which both have appealed. We affirm the judgment, ...
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Petitioner seeks a writ of prohibition to restrain the Superior Court of Los Angeles County from proceeding with the trial of petitioner in case number 329500 pending in said court. It is his contention that he has been denied his right to a speedy trial. The facts are admitted. On December 3, 1962, a complaint (No. 108272) issued in the Municipal Court of the Los Angeles Judicial District ch...
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248 Cal.App.2d 75 (1967) 56 Cal. Rptr. 142 PACIFIC INDEMNITY COMPANY, Plaintiff and Appellant, v. SECURITY FIRST NATIONAL BANK, Defendant and Respondent. Docket No. 29733. Court of Appeals of California, Second District, Division Two. January 25, 1967. *78 Anderson, McPharlin & Conners and Robert C. Haase, Jr., for Plaintiff and Appellant. Voegelin, Barton, Harris & Callister, E. Talbot C...
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This is an action for quasi-specific performance of an oral contract between plaintiffs and one James R. Trissel, now deceased, wherein plaintiffs agreed to look after his improved real property, collect the rents, and account to him for same and to care for said Trissel so long -as he lived and *118 to show respect and obedience toward him as children toward a father. For this service, attenti...
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The defendant, convicted at a trial by jury of assault with intent to commit rape (Pen. Code, § 220), claims on appeal that the evidence was insufficient to justify *128 the verdict, and that the trial court erred in its rulings, thus, preventing a fair trial. On the day of the offense, the prosecutrix, Connie Goss, 18 years old, rode some two miles on her bicycle from her mother’s home to the ...
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On October 8, 1965, respondent Yvonne Smith was charged with three counts of felony perjury in violation of sections 118 of the Penal Code and section 1550 of the Welfare and Institutions Code (now §§ 11050 and 11054 of the Welf. & Inst. Code). On January 19, 1966, she demurred to the information on the ground that she cannot be prosecuted via section 1150 of Welfare and Institutions Code ...
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Harry Gee and Harry Gee Associates, Inc. (whom we shall refer to in the singular since Harry Gee is the owner and principal officer of the corporation) brought an action based on a common count for money had and received, seeking a judgment against defendant Anthony Timineri in the amount of $11,000. Plaintiff’s claim arose out of, and was based on, a contract entered into between the parties w...
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Plaintiffs Haynes appeal from a judgment of the trial court, sitting without a jury, in favor of respondents Gwynn. Plaintiffs’ complaint sought specific performance of an agreement for the sale of real property and, in the alternative, for damages for breach of contract. Plaintiffs sued for specific performance on the basis of an option agreement which had been executed by defendants. The opti...
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Plaintiff, while on a deer hunt with defendant near Elko, Nevada, received a gunshot wound and brought suit to recover for injury. A jury, by a 9-3 vote, awarded damages against defendant in the sum of $522.60, the exact amount of the special damages stipulated by the parties. Plaintiff appeals from that portion of the judgment assessing damages on the grounds of inadequacy thereof. The aw...
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By this proceeding in certiorari, petitioner, a practicing attorney, seeks annulment of certain orders of the respondent superior court, dated September 2, 1966, and September 21, 1966, respectively. These orders adjudge petitioner to be in contempt of that court and that he be jailed therefor for five days. Charles W. Kieser, the real party in interest, also an attorney, represented Ann Sorell...
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An action is now pending in the Superior Court of Los Angeles County entitled Bula Maynard, et ah, v. The Community Redevelopment Agency of Los Angeles, California, and the City of Los Angeles, number 881693. Plaintiffs therein seek a judgment that the Redevelopment Plan for the Hoover Redevelopment Project and the ordinance adopting that plan “be declared unconstitutional and unenforceable.” O...
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On this appeal from a judgment in an action in eminent domain the question to be resolved is whether the trial court properly determined that the parcel of land being condemned enjoyed legal rights of access in and to the Ventura Freeway1 from Lewis Road. The property was located at the southeast corner of Lewis Road and the Ventura Expressway2 in the community of Agoura and was improved with an a...
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Plaintiff’s first cause of action is for damages for libel. 1 The third cause of action is on the theory of malicious prosecution. The court awarded plaintiff damages as follows: On the first cause of action $1.00 general damages, and $500 punitive damages; on the third $525 general damages and $500 punitive damages. Defendant has appealed. 2 In May 1951, Flintridge Heights, Inc., a Califor...
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The widow and daughter of Andrew J. Westbrooks, as his sole heirs, sued the defendant for damages for his alleged wrongful death. The jury brought in a verdict *211 for the defendant. Plaintiffs’ motion for a new trial was denied, and they appealed. At the time of decedent’s death, the defendant, Gordon H. Ball, Inc., a corporation, was the general contractor constructing the ...
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Plaintiff and cross-defendant, Sheldon Sackett, appeals from the judgment of the trial court determining that he take nothing on his complaint for money had and received and further awarding defendant and cross-complainant, Paul Spindler, $34,575.74 plus interest on his cross-complaint against Sackett for breach of contract. Sackett’s contentions on appeal are as follows: (1) the evidence revea...
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Once again, the temptation to cut the Gordian knot of involved litigation by resort to a summary judgment has proven erroneous. Silver Land and Development Company, the plaintiff in a quiet title action, appeals from the court’s determination of the motion of two specifically named defendants, California Land Title Company and Marin Title Guaranty Co., for a summary judgment resulting in the di...
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Plaintiff appeals from judgment for defendants on the proposition that a conditional res ipsa loquitur instruction was refused. Plaintiff was employed by Loop Lumber Company in Alameda. He was helping to unload lumber from a flatbed car when an 8-by-8-inch board fell from the ear onto his foot and destroyed his toes. Plaintiff sued Georgia Pacific Corporation, which loaded the lumber at Springf...
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This is an action brought pursuant to Corporations Code sections 2236-2238 1 to determine the validity of an election of directors of Gamier Enterprises, Ine., a *256 California corporation with 1,000 outstanding shares. The following chart depicts the ownership of the outstanding stock at the time of the disputed election: Name No. of Shares Constance A. Gar...
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By information, the District Attorney of Los Angeles County charged the defendant with assault with a deadly weapon, in violation of section 245 of the Penal Code, in that on or about April 22, 1965, he did commit an assault with a deadly weapon upon Gus Bowie, Jr. It was also alleged that defendant had been convicted of grand larceny and served a prison sentence in the State of Oklahoma. Defenda...
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Utilizing the current means provided by section 400 of the Code of Civil Procedure to test the propriety of the order of the trial court, the defendant in action No. 18187, pending in Kings County, entitled “The Armstrong Rubber Company v. J. Earl Garrett, Jr., doing business as Jaybird Auto Center & Car Wash,” filed a petition for a writ of mandate to require the Kings County Superior Court to gr...
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Appellants Alex and Mary Sparks brought this action to impose a constructive trust upon all of the assets in the estate of James Morrow, deceased. It was the theory of appellants’ case that the decedent, during his life *271 time, agreed orally with appellants to devise and bequeath his entire estate to them in return for their promise to make him a member of their family and to permit him to r...
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In July 1966 the People of the State of California filed an action in the respondent court against Joe Witzerman and others, under section 26101, Corporations Code, seeking to enjoin them from selling certain livestock care and management agreements and from making false and misleading statements in connection with such sales, unless and until they obtained a securities permit under section 255...
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Julio Garcia and Frank Ramirez appeal from judgments convicting them of possessing heroin in violation of section 11500 of the Health and Safety Code. Assignments of Error Appellant Garcia argues two contentions: (1) that the incriminating evidence was erroneously admitted in violation of the rules enunciated in Bielicki v. Superior Court, 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288],...
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Plaintiff, J & J Builders Supply, sued defendants, Caffin and Jeffrey, individually and as copartners doing business as Perry Masonry, to recover a debt alleged to have arisen from plaintiff’s delivery to the defendants of building materials at their request. After a judgment in favor of plaintiff against the defendants, individually and as co-partners, for $5,851.91, defendants appeal, contend...
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This is an appeal by plaintiffs from a judgment of dismissal entered by the court following its order sustaining defendants' demurrer to the second amended complaint without leave to amend. A complaint entitled “Fraudulent Conspiracy to Induce a Breach of Contract” was filed on October 17, 1963, and amended on October 21,1963, by plaintiffs. Defendants herein demurred to the first ame...
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Orthopaedic Hospital appeals from a decree determining the persons entitled to distribution of decedent’s estate. This decree avoids a charitable bequest to Orthopaedic Hospital of a remainder interest in the decedent’s estate. As its sole assignment of error appellant contends that ‘ ‘ The trial court erred in presently determining to whom the trust funds remaining at the death of the life *305te...
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After a non jury trial appellant was convicted of possession of marijuana. On this appeal from the judgment he states his basic contention as follows: “The appellant herein does not challenge the sufficiency of the evidence; and his basis for appeal is that the evidence introduced against him in the court below was obtained as the result of an illegal arrest, search and seizure. ’ ’ Shortly b...
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The plaintiff has appealed from the judgment, which doubly aggrieves her. First, it adjudges that she take nothing by reason of the action which she brought to have a piece of real property, 50' x 120' in size, and which we shall refer to as Lot 223, partitioned by selling, paying off some encumbrances on it, and dividing the balance between her and defendant Raleigh Lescalet. Second, it decrees:...
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Petitioner seeks release from confinement at Folsom Prison 1 on the ground that the conviction under which he is deprived of his liberty was obtained in a prosecution which violated the “multiple prosecution” aspect of section 654 of the Penal Code. (Kellett v. Superior Court, 63 Cal.2d 882 [48 Cal.Rptr. 366, 409 P.2d 206].) The facts appear from the transc...
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Plaintiff brought this action to quiet title to a 50- by 70-foot lot located in Frazier Mountain Park in the mountainous area of southern Kern County, near the Ventura County line. Plaintiff introduced in evidence a quitclaim deed from his grandmother, Agnes McBryant, conveying to him the property described as “All of Lot 6, Block 43, of Tract #1, Frazier Mountain Park as the same is shown upon...
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The plaintiff, Mary-Louisa Romanchek, and the defendant, Theodore Romanchek, were married in Santa Barbara, California on April 23, 1955. At the time of the marriage plaintiff was the owner and sole proprietor of the French School of Dress Design in Los Angeles. At the time of the marriage defendant owned the following property: (1) shares of corporate stock, formerly held by *339 ...
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Defendant was convicted of second degree murder. The questions on appeal are: (1) Did the court, in instructing on second degree felony murder improperly advise the jury that provocation by words alone was no defense to the felony charged (assault with a deadly weapon) ? (2) Did the court admit into evidence testimony of a missing witness given at the preliminary hearing on an insufficient show...
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This is an appeal from a judgment of dismissal entered upon the sustaining, without leave to amend, of a general demurrer to plaintiff’s first amended complaint. Plaintiff Jenny Thoen (Jenny) was a former wife of Olaf Thoen (Olaf), now deceased. Defendant Rolona Thoen (Rolona) married Olaf following his divorce from Jenny. The first amended complaint in its material parts discloses allegation...
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In the early part of 1963 Evelyn Shaffer was a patient in the Sierra Vista Hospital in San Luis Obispo apparently under the care of a Dr. Prier. Sometime after her release from the hospital she and her husband filed an action in the respondent court against Dr. Prier and the hospital, among others, seeking to recover damages resulting from their alleged negligence. After the action was at ...
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Plaintiff, after patronizing the place of business conducted by defendant Carolina Pines, attempted to leave the premises through a glass “exit” door and sustained injuries to his left arm when the glass became dislodged from the aluminum door frame. The glass and door frame manufacturers, respectively, were exonerated from liability upon the theory that neither then exercised control of its pr...
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Between April 1959 and January 1960 plaintiff was engaged in the business of financing under trust receipts (flooring) used ears held for sale by a corporation which did business under the name of Michell Bros., Inc. Carl H. Michell, Jr., president of the corporation, executed in his individual capacity a continuing guaranty of Michell Bros.' indebtedness to plaintiff. On April 20, 1960, plaintif...
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The cross-complainant, Marjorie Davies, after a journey through a procedural maze, temporarily finds herself with a judgment for $3,500 principal and $1,408.78 interest, based on the quantum meruit count of her cross-complaint against the two cross-defendants. Each cross-defendant has appealed, and we find it necessary to reverse the judgment because of prejudicially erroneous proceedings. In orde...
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Harry Christiansen, as a son and one of the prospective heirs of Margaret Christiansen, an incompetent, has appealed personally from an adverse order entered upon a petition for instructions which he filed as guardian of her estate. By the petition he sought authorization, as guardian, to make gifts to the children and grandchildren of the incompetent “to cut down on the burden of excessive tax...
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This is an appeal from the judgment entered in this probate proceeding on December 22, 1965, in favor of the beneficiaries named in the will of Charles A. Bank, decedent, and against Robert A. Bank, appellant. This judgment was entered following a hearing upon appellant’s petition for determination of heirship in which he sought to have the court determine that he was decedent’s son and pretermit...
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This is an appeal from a judgment for plaintiff-respondent, C. W. Berry, hereinafter called “Contractor” in the amount of $5,323.81 as the amount owing to him under a contract with defendant-appellant, the City of Santa Barbara, hereinafter called “City” to resurface and subseal certain of its streets. The basis of this appeal is that the trial court prejudicially erred against the City in maki...
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This is an appeal from an order of dismissal following the sustaining of a demurrer to plaintiff’s complaint without leave to amend. In his second amended complaint, plaintiff attempted to state three causes of action. The first and second causes of action seek damages for breach of a written lease against defendant Holton; the third is for damages on the theory of conspiracy on the part o...
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The genesis of this appeal is a donnybrook which took place on April 27, 1965, in the Municipal Court of the Beverly Hills Judicial District when the People, repre *457 sented by the now defendant Knecht, then a Deputy District Attorney, moved for a continuance of the trial in an action entitled People v. M. Plaintiff Friedman was the attorney who represented the defendant M. on a charge of pro...
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Appeal from a judgment which followed the granting of a motion for -a summary judgment in favor of defendant. The complaint was for malicious prosecution. In brief, it charged that on or about March 12, 1964, the defend *465 ant falsely, maliciously and without probable cause caused to be issued against plaintiff an accusation before the Contractors’ State License Board, in which a...
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Defendants prosecute their appeal from judgments of conviction of robbery in the first degree. The sole question presented by these respective appeals is: Was the ruling of the trial court correct when it overruled the objection of defendants to the admissibility of a transcript of the testimony of an absent complaining witness given at a preliminary hearing upon a showing by the prosecuti...
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The appeal is from a judgment denying a petition of Joseph E. Whitlow for a writ of mandate annulling an order of the State Board of Medical Examiners suspending appellant’s certificate for the practice of medicine and surgery. The order placed appellant on probation for five years, one of the -conditions of probation being that appellant desist from the practice of medicine and surgery for 180...
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San Francisco Examiner Division, Hearst Publishing Company, Inc. (Examiner), cross-complainant below, appeals from an order granting a motion for summary judgment and from the judgment entered thereupon in favor of William Sweat (Sweat) and Eldorado Insurance Exchange, respondents here and cross-defendants below.1 The uncontested facts may be briefly summarized. Sweat was engaged as a route manage...
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Plaintiff appeals from an adverse judgment in this action for damages for breach of contract. Plaintiff is the assignee for collection of Hanford Industries, Inc., a California corporation, hereafter “Han-ford.” On September 14, 1962 an agreement was entered into whereby Hanford was to sell and deliver and defendants were to buy and accept an aggregate of not less than 75 small boats, call...
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Plaintiffs operate a duly licensed real estate brokerage firm. On July 17, 1961 those defendants who are hereafter referred to as the original owners listed their parcel of commercial real property located in Larkspur with plaintiffs. Under the listing agreement plaintiffs were to receive the standard real estate commission for services rendered in the leasing of said property. On November...
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Plaintiff-contractor appeals from a judgment in favor of defendant in an action for damages for breach of a contract under which plaintiff agreed to build a fourplex on defendant’s property. Defendant subsequently refused to proceed with the contract on the ground that an adequate construction loan could not be obtained and that this was a condition precedent to the effectiveness of the contract. ...
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In August of 1962, plaintiff issued a policy to defendants on a 1961 Ford automobile, enforceable for one year from the date of issuance and extending coverage under its uninsured motorists provisions to defendant Andrea Tuberman, a minor. On September 16, 1962, the minor sus *518 tained personal injuries in an accident assertedly caused by an uninsured motorist. On December 17, 19...
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The 13 lots involved in this quiet title action are part of a residential subdivision in Yuba County. These lots were successively the subject of a set of purchase money trust deeds and a set of construction money trust deeds. Sacramento Savings and Loan Association was the lender of construction funds. The suit represents a title contest between plaintiff Jones, who had bought the purchase mon...
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Plaintiff petitioned for a declaration that plaintiff was not obligated to the insured William F. Harkins on an insurance policy on the date Jirina B. Harkins, the wife of the insured, had an accident that caused damage to Kathryn Vincent. William and Jirina were served with process and defaulted. Only Kathryn Vincent (defendant) has appealed from the judgment taken against all defendants. Th...
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Petitioner, Morton R. Kresteller, seeks a writ of prohibition to restrain the respondent Superior Court of the City and County of San Francisco from hearing an *546 action for child support brought by his former wife, Nancy H. Feldman, the real party in interest. This court granted an alternative writ following the denial by the lower court of a motion to vacate an order to show cause why Morto...
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Petitioner, the plaintiff in an action of unlawful detainer, seeks a writ of mandate commanding respondent court to give that action precedence on the pretrial calendar in order to expedite setting it for trial. (See Code Civ. Proc., § 1179a1; Kartheiser v. Superior Court (1959) 174 Cal.App. *5522d 617, 621-623 [345 P.2d 135]; and Lori, Ltd., Inc. v. Superior Court (1946) 74 Cal.App.2d 442, 443 [1...
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This is an appeal by plaintiff General Insurance Company of America from an order granting defendant Olivia Schian’s motion to release from the levy of an attachment certain funds deposited in an escrow account. The facts are without dispute. On October 16, 1956, defendants Harvey and Olivia Schian, husband and wife, entered into a written contract with the County of Kern to install certain i...
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The plaintiff insurance company brought an action, seeking a declaration that all claims against it under the uninsured motorist coverage provided in a policy issued by plaintiff to defendants Dorothy and James Copeland, have been settled by a binding release executed by defendants; and for a permanent injunction restraining defendants from proceeding with the arbitration of these claims. The c...
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This case grows out of a letter agreement relative to brokerage fees for the asserted procurement by plaintiff of a food market as a lessee in a shopping center that defendant Hubert proposed to build. The initial judgment was for $46,200 damages, plus interest and costs. Upon motion for a new trial the judgment was vacated and a new judgment was entered for $34,650, plus interest and costs. Defe...
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Defendant Winchell has appealed from a judgment in which he was convicted of possession by an ex-felon of a firearm capable of being concealed upon the person in violation of the provisions of section 12021 of the Penal Code, and was sentenced to state prison. Defendant’s sole contention on appeal is that his prosecution and punishment for this offense were barred, under the provisions of ...
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On May 24, 1963, the Department of Alcoholic Beverage Control (ABC) filed an accusation against appellant to revoke his on-sale general liquor license. ABC charged that continuance of appellant’s license would be contrary to the public welfare and morals within the meaning of article XX, section 22 of the California Constitution, and section 24200, subdivisions (a) and (b), and section 25601 ...
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A jury found defendants Watkins and Poster guilty of the first degree murder of Vincent Delaney. Watkins alone appeals. His codefendant, Poster, had also been charged with assault with a deadly weapon upon Jose Vargas. Prior to the murder trial, Poster pleaded guilty to the Vargas assault. Both defendants were represented at the trial by Mr. Bobert N. Chargin, Public Defender of San Joaquin Cou...
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Defendant appeals from a judgment awarding plaintiff the amount prepaid by the latter under contracts for dancing lessons which were not furnished. Plaintiff had entered into five such contracts with “Arthur *612 Murray School of Dancing” at San Diego, operated by Burkin, Inc., a corporation, under a franchise agreement with defendant Arthur Murray, Inc., a corporation. D...
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This is an appeal by defendant from an order denying her motion to vacate a judgment in condemnation proceedings claimed to be invalid because jurisdiction of the trial court had not been legally obtained. On January 18, 1961, plaintiff State, acting through the Department of Public Works, filed in Orange County a complaint in eminent domain (action No. 93340), against the defendant Daisy ...
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Plaintiffs, as heirs at law of Esteban Hernandez, appeal from a summary judgment in a wrongful death action in favor of defendant, a public entity. Hernandez was killed in an accident allegedly caused by the defective condition of an unpaved maintenance road under the control of defendant. The road adjoined a drainage ditch both of which were constructed and maintained by defendant upon an easeme...
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On March 4, 1965 judgment was entered in favor of Rubin Lewis, as trustee, and against Tillie O’Brien, individually, for $4,000 and against her, as administratrix of her father’s estate, for $2,000. Tillie’s father had died during the pendency of the action and Tillie was appointed administratrix of his estate on the morning of trial, solely for the purpose of present...
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Petitioners Minyard and Danger seek a writ of mandate to require respondent superior court to grant their respective motions for change of venue from San Francisco to Napa County. It is clear that Danger’s motion should have been granted under the provisions of section 395 *634of the Code of Civil Procedure. It is therefore unnecessary to discuss the Minyard motion, which is based upon the ground ...
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Plaintiff pedestrian appeals from judgment entered upon jury verdict for defendants. Plaintiff crossed McArthur Boulevard at 35th Street, Oakland, with the green light. She travelled from north to south. Defendant driver, son of the other two defendants, was travel-ling north on 35th. He stopped behind two ears at the signal at McArthur. When it turned green and the other ears cleared the inter...
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Appellant Southern California Thrift & Loan complained in several counts against respondent Sylvania Electric Products, Inc., seeking various sums for breach of contract and fraud. Respondent’s demurrer to appellant’s third amended complaint was sustained without leave to amend. Judgment of dismissal was entered in favor of respondent. The first cause of action alleges substantially: Appellant, by...
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This is an appeal 1 from an order denying appellant’s motion for termination of his permanent alimony obligation of $100 a month to respondent, his former wife, and granting to her counsel, without request therefor, $100 attorney’s fees. 2 The basis of appellant’s motion was a claim that respondent had been living for some time with one Thomas Mowry in a meretricious rel...
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The complaint in the case herein charges three causes of action, one in declaratory relief, the second on foreclosure, and the third on the theory of waste. Defendants filed demurrers which were overruled as to the first and second causes of action, and sustained as to the third cause of action. Defendant Westglen Corp., cross-claimed. A motion for judgment on the pleadings was granted to ...
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Action for general and punitive damages for trespass upon a mining claim and conversion of a quantity of iron ore. Prom an adverse judgment of the Superior Court in and for the County of Inyo, plaintiff prosecutes this appeal. The attempted appeal from the order denying a motion for a new trial should be dismissed as being from a nonappealable order. The mining claims which are the subject...
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In the early evening of Friday, March 29, 1963, defendant telephoned plaintiff and requested that plaintiff accompany her to Los Angeles from Santa Ana. Defendant was 24 years of age and had known plaintiff socially for a period of approximately two months. Plaintiff was a licensed driver while defendant only possessed a learner’s permit. Defendant required the presence of a licensed driver *682to...
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Appellant Walnut Creek Aggregates Company, plaintiff below, appeals from a judgment of dismis *692 sal entered upon the granting of a nonsuit on the motion of respondent Testing Engineers Incorporated, one. of the defendants before the lower court, which will hereinafter be called defendant. The other defendant, Diamond Building Materials, Inc., a corporation, is not a party to thi...
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Appellant Ernest A. Figone, Jr., appeals from a judgment upon a jury verdict in favor of respondents Steesa Radiance D. Statter and Victor E. Fasano. Appellant’s action grew out of two separate automobile accidents, the first involving respondent Statter, and the second involving respondent Fasano. Appellant claimed he sustained personal injuries in each accident and demanded damages from each of ...
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Plaintiffs appeal from a judgment dismissing their action upon motion of defendants Trailer ancho Corporation, and Herb Schwank, its agent. The action was premised upon a complaint setting forth six causes of action. Defendants answered. Subsequently plaintiffs dismissed the second, fifth and sixth causes of action. Thereafter defendants moved to dismiss the remaining causes of action, i.e., the f...
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Ann Newsome Brothers, a daughter and heir-at-law of James H. Newsome, deceased, appeals from an order decreeing the right of Grace Sullivan Newsome, wife of the deceased, to receive a $10,000 savings and loan account under his will. The will of James H. Newsome devised certain real property to his wife; also devised other real property to his daughter; made no other provision for the dispositio...
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Defendant appeals from the judgment (order granting probation) following his conviction in a trial by the court of possession of marijuana for sale (Health & Saf. Code, § 11530.5). The facts are as follows: Charter Savings and Loan Association, as the owner of an apartment house located at 336 West Palm, in the City of Compton, employed Richard Manning as an agent to inspect the premises and to co...
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Plaintiff Wilshire Insurance Company (Wilshire) and defendant Transit Casualty Company (Transit) both insured one Fred Desilets and his employer Cannonball Express Company (Cannonball), when on December 13, 1962 a truck owned by Budget-Rent-A-Car (Budget), rented to Cannonball and driven by Desilets smashed into a sign owned by Mutual Savings and Loan, damaging it to the extent of $3,155. Wilsh...
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The People appeal from a judgment denying forfeiture of an automobile, which had allegedly been used to “unlawfully transport” narcotics and to “facilitate the unlawful transportation” of a narcotic. (Health & Saf. Code, § 11610.) The narcotic in question was Cheracol, a cough syrup which contains codeine. At the time in question Cheracol could be obtained without a prescription (Health & ...
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On June 17,1964, Bruce R. Best et al., filed a personal injury action against Press-Enterprise Company, a California corporation, Edward G. Robinson, Gordon L. Primmer and various Does. The named defendants answered. A pretrial conference order, filed January 6, 1966, dismissed all fictitious parties. On September 20, 1966, by stipulation, plaintiffs and the named defendants obtained an order amen...
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In case number 291181 defendant was found guilty of a violation of section 11500 of the Health and Safety Code (possession of heroin), in case number 299317 of a violation of section 11500.5 (possession of heroin for sale). In each case he was sentenced to state prison for the term prescribed by law, the two sentences to run concurrently. 1 He has appealed each conviction. Cas...
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The state, as condemnor, has appealed from a judgment which awarded the defendant property owners $55,000. This judgment ensued from a jury trial which resulted in a verdict that the fair market value of the property taken was $35,000, that the owners suffered $20,000 damages to the remainder of their property by reason of the severance and the construction of the improvem...
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On this appeal two cases have been consolidated. In one (1 Civ. 22789) defendant and cross-complainant, Henry C. Clausen, appeals from (1) the order of the trial court granting the motion of plaintiff and cross-defendant, The People of the State of California (hereinafter referred to as State), to strike Clausen’s amended cross-complaint and sustaining State’s demurrer to said amended cross-com...
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On this appeal from an order quashing the service of summons made on the AYestphalia Separator Company, a German corporation (hereafter Westphalia), the only question is whether AVestphalia was amenable to service of process and the jurisdiction of the California courts. Plaintiffs filed an action for negligence and breach of warranty in the wrongful death of their adult son, who was killed in ...
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After 52 days of trial to the court without a jury, plaintiff had judgment against defendants Zalk and Beeler. Both defendants appeal. The appeal is upon the clerk’s transcript alone, although that transcript contains exhibits introduced at trial. Our statement of facts summarizes the findings. In 1957, plaintiff exchanged his Oakland office building for defendant Beeler’s ranch near the San Ma...
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248 Cal.App.2d 798 (1967) SHARON GARDNER, a Minor, etc., Plaintiff and Respondent, v. CITY OF SAN JOSE, Defendant and Appellant. Civ. No. 22442. California Court of Appeals. First Dist., Div. Three. Feb. 27, 1967. Ferdinand P. Palla, City Attorney, Sedgwick, Detert, Moran & Arnold, Hoge, Scott Conley and Fenton, Jones & Appel for Defendant and Appellant. Hilton J. Melby, City Attorne...
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This action was instituted by longshoreman Arthur Flores (hereinafter called Flores) against ship’s owner Thor-Dahl A/S (hereinafter called Thor-Dahl) for damages for personal injuries suffered when, in the course of his employment by Crescent Wharf & Warehouse Company (hereinafter called Crescent), Flores was engaged in unloading the vessel Thorsisle. Thor-Dahl filed a cross-complaint for indemni...
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This action, for damages based on fraud and unjust enrichment, was brought by Joanaco Projects, Inc. against Nixon & Tierney Construction Company and against its two stockholders, John Tierney and Donald Nixon. The trial was by the court sitting without a jury. Upon the completion of the presentation of plaintiff’s case, defendants moved for a judgment under the provisions of Code of Civil Proc...
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This appeal is by plaintiff from a judgment of dismissal. FACTS On August 24,1960, the California Commissioner of Corporations issued to Western-America Sports Enterprises, Inc., a corporation (Western), a permit to sell and issue its securities. In January 1961, the permit was amended to provide that all subscription money “shall” be paid to Western and that such money, less one-half of the allow...
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Plaintiffs Owens brought this action to recover the reasonable value of automobile repairs, storage charges and interest; alleged the reasonable value of the repairs was $1,843.25; and also alleged the repairs and storage *843 were requested by the defendants Pyeatt, owners of the automobile that had been damaged by upset, and by the defendant Allstate Insurance Company, the insure...
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Appeal from the judgment of dismissal entered when plaintiff failed to amend his complaint after demurrer was sustained with leave to amend. *852 Appellant John A. Webb, an attorney acting in propria persona, filed this action against William T. Youmans, Florence R Youmans and Norman E. Caldwell, their attorney, seeking damages for alleged malicious prosecution. Origin of the claim is an ac...
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This is an appeal by plaintiff Colin Patchin from a judgment denying him a peremptory writ of mandate compelling defendants City of Oakland and its Police and Fire Retirement Board to grant his application to retire for service, pursuant to the provisions of section 241, subdivision (a), of the Charter of the City of Oakland. The facts are without dispute. Plaintiff joined the Oakland Fire Departm...
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In this action, plaintiffs, Arthur L. Goldberg, Michael L. Klein, David A. Bills and Nicholas Zvegintzov (hereafter referred to by their last names), challenge, upon constitutional grounds, their suspension and dismissal from the University of California on April 20, 1965. This appeal is from a judgment of dismissal entered on an order sustaining the general demurrer of defendants, The Regents ...
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Defendant, Thomas N. Bradley, in pro. per., appeals from an order dated April 8, 1966, denying his application to expunge the record of his prior conviction pursuant to section 1203.4 of the Penal Code. He contends that the trial court erred in denying him the mandatory relief provided by the statute. The facts are not in dispute. On December 7, 1964, defendant was convicted on his plea of guil...
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Milton Goldstein appeals from an order of the superior court dismissing his action against Herbert Enoch after Enoch’s general demurrer to the complaint was sustained without leave to amend. 1 *893 The first cause of action discloses that Goldstein is an attorney who owned, at all times herein relevant, 20 percent of the stock of R.R.R. Inc., a California corporation. Enoc...
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Four cases are combined for consideration as a single appeal. All involve arrests for violations of section 103.102 of the Los Angeles Municipal Code which reads in relevant part: “No person shall operate, conduct, or manage any public place where food or beverages are sold, offered for sale or given away, and where any form of live entertainment is provided or furnished without a written permit f...
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The County of Tehama has appealed from a judgment allowing recovery of real property taxes paid under protest. This ease concerns the question whether the failure of an assessor to inform an assessee of an increased assessment of over 25 percent on the assessee’s land precludes collection of a tax based on the increase in assessed value. The trial court answered that question affirmatively...
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Chandler J. Walker was convicted of three counts of perjury. (Pen. Code, § 118.) Pronouncement of judgment was suspended and probation granted. He properly appeals from the order granting probation. The crucial question presented on this appeal is whether an oath was taken by Walker before a notary public with sufficient formality to permit a charge of perjury within the meaning of section...
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This appeal is by defendants Brown, as principal, and United States Fire Insurance Company, as surety, from a judgment against them in favor of plaintiff Jen-Mar Construction Company for $33,262.47. JenMar also noticed an appeal from that part of the judgment “denying plaintiff’s right to recover legal fees in the amount of $12,069.76.” As part of his pleadings, Brown filed a cross-complaint wh...
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Following a special jury verdict in a will contest before probate, a judgment was entered admitting Maude Straisinger’s will to probate. Contestants appeal from the judgment. In their written opposition to the probate of the will, contestants specified five grounds: Unsound mind, improper execution of the will, fraud, undue influence, and estoppel. Improper execution was abandoned at pretrial; the...
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Appellant Board of Directors of the Turlock Irrigation District appeals from a judgment of the superior court issuing a writ of mandate directing the appellant to change the boundaries of the divisions of the district. The undisputed facts are substantially as follows. The Turlock Irrigation District, a special district embracing 195,802 acres of land located within three counties, 1 was form...
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Morse and Seal appeal a judgment of dismissal after a demurrer to their complaint was sustained without leave to amend for failure to state a cause of action. Plaintiffs’ complaint charged that the rezoning of the area in the vicinity of a county airport resulted in the inverse condemnation of their property by the county, that in purchasing their property they acted in reliance on a zoning ord...
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Max M. Lichty appeals from a declaratory relief judgment denying, in effect, his claim of ownership to real property. In September 1963, Richard Adams’ assignor, Russell Coon, a judgment creditor of Myra Stall, levied upon and purchased at sheriff’s sale Stall’s real property. In May 1964, Southern Adjustment Bureau (Southern) filed an action against Stall, served process by publication, and attac...
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On this appeal by the plaintiff from an order discharging an attachment, our crucial question is: does the complaint state a cause of action which brings into effect those provisions of section 537, Code of Civil Procedure, that declare that a plaintiff may have the property of the defendant attached “in an action upon a contract, express or implied, for the direct payment of money . . Plainly, t...
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Plaintiff sustained injuries in an automobile accident; in a previous action recovered judgment against the driver of an automobile involved in the accident; and by the instant action sought recovery on that judgment from the defendant insurance companies under policies of liability insurance respectively issued by them to three automobile sales agencies plaintiff claims were the owners of the aut...
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In 1959 plaintiff, as the owner and operator of a neon sign company, employed defendant as a salesman for the purpose of selling and leasing electric signs. Originally, under oral agreement, defendant received for his services a fixed salary of $100 weekly and an expense account, plus a 4 percent commission on cash sales negotiated. Defendant’s salary was later increased to $150 weekly. Subsequ...
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In this action for declaratory relief to determine the rights and duties of the parties under a motor vehicle liability policy issued by Farmers Insurance Exchange to Jack Geyer, Ina Geyer appeals from the judgment of the trial court determining that (1) the policy does not extend coverage to Jack for injuries sustained by Ina, his wife, in an accident which resulted from Jack’s alleged neglige...
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Plaintiffs Toshiye Ehret, Mia Ichioka Yamaoka, Shizuye Lewis and Futaba Ichioka are the issue of a marriage between Masako Ichioka and Toshio Ichioka, both now deceased. Plaintiff Mia Ichioka Yamaoka also appears as *640 the administratrix of the estate of Masako Iehioka, deceased. Defendant Tsutayo Nakao Iehioka is the second wife of Toshio Iehioka. The action, described with more...
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Plaintiffs appeal from a judgment for defendants in a wrongful death action. The issue on appeal is whether the trial court erroneously refused to apply the doctrine of collateral estoppel by judgment in favor of plaintiffs and against defendants on the issue of negligence. On the evening of December 2, 1961, defendant Thomas O’Leary was employed by defendant Campus Drive-In Corporati...
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Plaintiff appeals from a judgment denying recovery on a promissory note, which was one of four in identical amount executed on January 17, 1963, by defendant corporation (Artisan) and defendants Smith (Smiths) and taken by plaintiff as part-payment for 52 subdivided lots that concurrently were transferred by plaintiff to Artisan. The four notes were delivered in escrow under written instruction...
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Our inquiry on this petition for habeas corpus has developed progressively. Originally we issued an order to show cause limited to the questions whether on petitioner’s arraignment in the superior court he had been suffi *657 eiently apprised of his right to counsel and whether his express waiver of that right had been intelligent and effective. Bell is presently confined in the California St...
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In each of two actions, the appeals in which have been consolidated by stipulations made at the time of oral argument, the owner of a sportfishing vessel of more than 50 tons burden recovered judgment for repayment of taxes assessed, levied and collected by the County of San Diego and the City of San Diego. The county and the city have appealed from the judgments. The appeal in case No. 81...
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Jurisdiction of this court to consider this petition for a writ of review was questioned initially on the ground that petitioner is not a resident of this appellate district within the meaning of section 5950 of the Labor Code. Nevertheless, petitioner maintains that section 5950 of the Labor Code has never been enforced because petitioner consistently has been permitted to file in districts ot...
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Appellant purports to appeal “. . . from that certain judgment and order of the Court sustaining the demurrer ... to paintiff’s fourth amended complaint, without leave to amend as to the first cause of action and with leave to amend as to the second and third causes of action. ’ ’ There is, however, no judgment. No appeal lies from orders sustaining or overruling a demurrer. Such orders are review...
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Plaintiff, Prentiss N. Tucker, appeals from a judgment of dismissal entered after the trial court sustained a demurrer to plaintiff’s complaint without *686 leave to amend on the ground it failed to state a cause of action. The complaint was in declaratory relief; plaintiff insured sought to determine defendant Centennial Insurance Company’s duty to defend an action brought before the Workmen...
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Frank Ramirez Guerrero appeals from a judgment of conviction entered upon a jury verdict of second degree burglary (Pen. Code, §§ 459, 460). Guerrero admitted eight prior felony convictions. On August 5, 1965, Mrs. Jessie Spencer Black discovered missing from her San Diego home her credit cards, driver’s license, and red coin purse. The next morning in a residential area of Monterey Park, Polic...
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Plaintiffs, the surviving heirs of seven passengers aboard a crashed airplane, appeal from the respective judgments of dismissal entered upon orders sustaining defendants’ general demurrers to their complaints without leave to amend. 1 Although the cases of the respective plain *693 tiffs are pending before this court as seven separate appeals, they raise the identical i...
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Defendant Southern Pacific Company appeals from an adverse judgment in a wrongful death action brought by the widow and children of Wilford Lee Bice who was killed when the vehicle he was driving was struck by a train. Judgment was after a court trial. We reject the contentions of defendant railroad that as a matter of law (1) it was not negligent, and (2) that decedent was guilty of contr...
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William J. Smith and Ernest J. Pombo were the only candidates at an election held on Tuesday, February 2, 1965, for director of division 2 of the West Side Irrigation District in San Joaquin County, a rural area in the vicinity of Tracy. Only 59 votes were cast and 11 of the total were absentee ballots; on February 9, 1965, the final returns were canvassed and the board of directors determined tha...
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This is an appeal by plaintiffs-appellants Joseph T. and Louis J. Felder from the final judgment entered in their partition action brought against defendant-respondent Leo C. Felder. Appellants raise many issues in their brief, but none has sufficient merit to require reversal of the judgment. We therefore affirm the final judgment from which this appeal is taken. Appellants and respondent own the...
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An automobile accident that took place August 10, 1963, was the starting point of the present lawsuit. The first procedural step was the inauguration of arbitration proceedings by our present appellant Alberta Lee Jones, who was injured. Prompted by the arbitration, the plaintiff Interinsurance Exchange of the Automobile Club of Southern California brought an action for declaratory relief, nami...
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Defendant James Murray appeals from a judgment imposing sentence for violation of Penal Code section 4530, subdivision (b), relating to escape from a state prison. He had entered the single plea of not guilty by reason of insanity, and thus pursuant to Penal Code section 1016, admitted the commission of the offense charged. The case was *732 prosecuted by way of a preliminary examination and in...
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Respondents filed an action for an injunction to restain appellants from interfering with their use of an easement. Appellants claim that this easement was limited to a 12-foot roadway and that respondents were exceeding that limitation at one point of the road and encroaching on their land. The trial court held that the respondents were entitled to an enlargement of the easement in conforming to...
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Plaintiffs obtained a preliminary injunction requiring defendants Jack P. Burke and The Fundamental Oil Corporation to pay their respective shares of profits of Mountain View Oil Company, a corporation, and defendants appeal; but $5,000 of the total amount was ordered retained in trust for plaintiffs, and this part of the order is appealed by plaintiffs. The facts are before us in a settle...
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Appellant Orval Sanders’ complaint was demurred to. The appeal is from a judgment dismissing the action against defendant county following the sustaining of a demurrer without leave to amend the counts against said county. We are not concerned on this appeal with the liability of the remaining defendants who are alleged to be agents of the county. The complaint against the county (preceded...
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Defendant Wiggins appeals from a judgment of the superior court, sitting without a jury, in favor of plaintiff Manes for damages in the sum of $1,520 and costs of suit. Plaintiff in his complaint alleged defendant had committed an assault and battery upon him. The evidence discloses Wiggins, the owner and operator of a combination bowling alley, restaurant and tavern, became involved in an...
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In this condemnation action, plaintiff-condemner, Orange County Municipal Water District, appeals from a judgment awarding defendant its costs and trial preparation expenses. Defendant-condemnee, Anaheim Union Water Company, appeals from an order striking the award of trial preparation expenses, and from orders re-taxing costs and taxing a supplemental cost bill. In July 1964, pretrial was...
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Plaintiff appeals from a judgment of non-suit in a jury trial in favor of defendant San Diego Gas and Electric Company (Company) in a personal injury action. *767 Facts The following is the evidence viewed most favorably for the plaintiff. On January 24, 1963, plaintiff Lorincie was driving a pickup truck southerly on Rancho Santa Fe Road; at that time Company was conduc...
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J.—Plaintiffs appeal from a judgment of non-suit in their action to recover damages to their real property allegedly caused by seismic vibrations activated by a static firing rocket motor test conducted by defendant on adjoining lands pursuant to a contract with the United States. The complaint was framed on theories of negligence and strict liability. In accordance with the well settled r...
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Plaintiffs appeal from a judgment of dismissal entered pursuant to an order sustaining defendant’s general demurrer without leave to amend. Plaintiffs filed a complaint for damages against Western Airlines and several “Does” alleging, inter alia, that on October 18, 1964, plaintiffs were paying passengers on a certain flight departing from Las Vegas, Nevada, with the destination...
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This is an appeal by all of the defendants except defendant Johansen, from a judgment in favor of the State of California in an action in equity to set aside a probate decree determining heirship. These are the facts: George E. Turkington and Vivian H. Turkington were husband and wife. They had no children. During their marriage they accumulated community property. George died intestate in...
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This is an action to enforce two alleged trusts. The trial court made a minute order sustaining defendants’ demurrer to the second amended complaint without leave to amend and granting defendants’ motion to strike the same pleading, following which the court made its order of dismissal. Plaintiff is appealing from the dismissal. The notice of appeal also recites that plaintiff appeals from ord...
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The widow and surviving minor children of Santiago Garcia, appellants in this wrongful death action, allege that Santiago, while an inmate of the state prison at Tehachapi, died of injuries caused by collapse of a weight suspension rack furnished by the prison for training and rehabilitation activities. The complaint also alleges that collapse of the equipment resulted from negligent maintenance ...
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Plaintiffs appeal from a judgment entered upon a jury’s verdict in favor of the defendant. Plaintiff Josephine Borneo was injured as a result of a fall which occurred on November 29, 1962, in the defendant’s food market. She had gone to the market to shop for groceries, accompanied by her sister-in-law, Norma Scorza. After she *819 arrived she selected a shopping cart in which to place her groc...
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Appellant, an Out of State Auditor II with the State Board of Equalization stationed in Chicago, was acting as -an Out of State Auditor III under a probationary *828 appointment. He applied for a permanent appointment as Auditor III, but was rejected; he appealed from the rejection and, while his appeal was pending passed the written portion of the examination for Out of State Auditor III. An o...
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On December 3, 1965, defendant was residing in the Grand Central Hotel in the City of Fresno. On that day hotel employee Barbara White, while cleaning his room, observed numerous items of men’s clothing from which the price tags had not been removed. Suspicious of illegal activity, she reported her observations to Miss Dennis, the hotel manager, who also inspected the room. Miss Dennis then calle...
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Defendants, Donald and Michael Perrin, brothers, each appeals from a judgment entered upon a jury verdict finding him guilty of violation of Penal Code section 459, burglary second degree. Defendants used a crowbar to pry open an outer locked door at the Iran Restaurant in Fresno at approximately 3 a.m. *841August 16, 1964. After entering, they pried open three inner locked doors to reach the bar ...
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Defendant was convicted in 1964 of possessing heroin and marijuana for sale in violation of sections 11500.5 and 11530.5 respectively of the Health and Safety Code. At the time of this conviction he was on probation following conviction in 1959 of possession of marijuana in violation of section 11530 of the Health and Safety Code. On June 11, 1964, after reading the probation report, the court ...
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An information charged petitioner Louis Heedly with burglary of the A. G. Damico Company and with grand theft for theft of personal property from said company. A jury found petitioner guilty of burglary of the second degree and grand theft, with two prior convictions being charged and found true. The trial court imposed concurrent sentences for the two offenses. In substance, the contention of pet...
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Plaintiffs appeal from an adverse judgment in favor of each defendant, entered upon jury verdicts *858 in an action brought to recover damages resulting from several fires at Forks Motel, Ulriah, on the early morning of November 27, 1960. Plaintiffs Cracknell and Richardson were absentee owners of the motel, which they had purchased in September 1959. Plaintiff Thompson was its resident manager...
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—In August 1960 John Sheets and Frank Masin entered into a limited partnership agreement for the development of certain land owned by Sheets. The original agreement was replaced by a new agreement early in 1962. Acting under this latter agreement Masin supervised the construction of an apartment building which became operative in January 1963. Early in 1966 Sheets, as limited partner, came to the...
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—Plaintiffs instituted this fraud action to recover $25,000 from the defendants who were engaged in the real estate brokerage and loan business in the City of Fresno. According to the plaintiffs they paid the money to the defendants for a real estate commission as the result of defendants’ false representation in connection with the sale of plaintiffs’ motel in Fairfield, the Solano Lodge. The co...
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—I dissent. I believe the entire habendum clause which purports to restrict the fee simple conveyed is invalid as a restraint upon alienation within the ambit of Civil Code, section 711. It reads: "Said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of sale or transfer by the second party of a...
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The plaintiff, Colman Hodge, brought an action against his wife, Dorothy E. Hodge, to quiet title to lot 6 and the south 30 feet of lot 7 of Gust Nelson Tract. The defendant claims that the land is held by her and the plaintiff in joint tenancy by reason of a grant deed, which she purportedly executed in the name of Colman Hodge by reason of a power of attorney signed by him and recorded in the...
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—Appellant, in an action on a promissory note of R. W. Akers, caused attachment to be levied on a Bonanza airplane. The amount of $21,953.01 and interest and attorneys’ fees are alleged to be due to appellant. 1 Respondent is a third party claimant. It was adjudged that Akers had an interest of but $1,863.85 in the airplane. The court found the airplane to be worth approximately $27,...
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257 Cal.App.2d 56 (1967) THE PEOPLE, Plaintiff and Respondent, v. OLIVER FAULKNER, Defendant and Appellant. Crim. No. 11139. California Court of Appeals. Second Dist., Div. Four. Dec. 15, 1967. Donald F. Roeschke, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Suzanne E. Graber, Deput...
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—Defendant was charged by information with the offenses of assault with intent to commit rape, a violation of Penal Code, section 220, and indecent exposure, a violation of Penal Code, section 314, subdivision 1; was found guilty by a jury; and appealed from the conviction, seeking a reversal upon the grounds (1) the court erred in refusing to give a cautionary instruction; and (2) the court did ...
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—Plaintiff is the subrogee of three automobile owners who left their cars at the San Francisco International Airport parking lot in the care of “Parking Valet Service,” operated by defendant, Barrett Garages, Inc. Upon return from their respective plane trips it was discovered that the cars had been stolen. After reimbursing each owner for his loss, as provided in its insurance policies is...
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—Defendants James Dahlke and Richard Moorhead appeal from judgments of conviction on three counts of burglary. The record shows that early in the morning of May 5, 1966, Bill Garrett observed two men whom he identified as defendants Dahlke and Moorhead applying crowbars to the rear door of a hardware store located in Cloverdale, California. Garrett asked a companion to call the police, and the ...
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—In October of 1965 respondents Morris instituted an action against appellants Zuckerman for judicial partition of certain real property owned by the respective parties as tenants in common. Relying on a written agreement (hereinafter referred to as “the Agreement”) executed by *93 all concerned on December 14, 1962, the Zuekermans by separate defenses alleged a waiver by Morris an...
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—D’Allesandro, Lynn Jenkins and Lurie were found guilty of second degree burglary (Pen. Code, § 459) and grand theft (§487, subd. 1, Pen. Code); the same charges were dismissed as to Jenkins on her motion (Pen. Code, § 995). Defendants were sentenced to the state prison on each *100count, but sentence on the grand theft conviction was stayed pending service of sentence on the burglary, the stay th...
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—Defendant was charged in an amended complaint filed April 26, 1967, in the Municipal Court of the San Antonio Judicial District with a violation of section 3710.2 of the Labor Code on March 1 *107 The amended complaint alleges that on that day defendant "being then and there an employer subject to liability for the payment of workmen’s compensation to persons employed by ...
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Appellants Washington and Wilson, together with their codefendant Davenport, were tried by a jury and convicted of burglary (Pen. Code, § 459). These appeals are from the judgments. At 1:15 a.m. on February 18, 1966, police officers saw Davenport and Wilson outside the entrance of a clothing store pulling something through the broken glass of the door. The men fled as the police approached, but we...
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plaintiffs, Carolyn Sehoenfeld, Rosalie J. Levy and Clarisse Haberfelde Main, are the owners of the northwest quarter of section 17, township 30 south, range 30 east, M. D. B. & M., while the defendants, Donald M. Pritzker and Janet Wyman own adjoining land, namely, the northwest quarter of the northeast quarter of the same section, township and range. The plaintiffs were successful in their su...
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On this appeal by plaintiffs, Oscar and Kathryn Wilke, from an adverse judgment in their action to rescind for fraudulent representations a contract for the purchase of 30 coin-operated testing devices from defendant, Coinway, Inc., a California corporation (hereafter Coinway), the only question is the sufficiency of the evidence. The record reveals the following facts. In 1961, plaintiffs...
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This is an appeal by the Director of the State Department of Professional and Vocational Standards, hereafter Director, from a judgment ordering that a writ of mandate be issued to set aside his order revoking the private investigator’s license of Clarence K. Lundborg, hereafter Lundborg. The Director contends that the superior court erred in ruling that a prior civil judgment against Lundborg was...
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In this action for rent due under a lease, the trial court awarded the lessor $28,325 rent and $2,500 attorneys’ fees. On appeal, the lessee contends that the award of rent involved, in effect, an unauthorized rewriting of the lease by the court and that attorneys’ fees should not have been allowed as they had been waived by stipulation. The lessor’s cross-appeal attacks both the trial court’s ...
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— Defendant was charged in a complaint filed in the Municipal Court of East Los Angeles Judicial District with having violated section 23102, subdivision (a), of the Vehicle Code (driving an automobile while under the influence of intoxicating liquor) on December 23, 1966. On April 19, 1967, the trial court granted defendant's motion to dismiss on the ground that section 2814 of the Vehicle Code ...
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257 Cal.App.2d 167 (1967) THE PEOPLE, Plaintiff and Respondent, v. HENRY SWEET, Defendant and Appellant. Crim. No. 12284. California Court of Appeals. Second Dist., Div. Two. Dec. 19, 1967. Alfred V. Contarino, under appointment by the Court of Appeal, for Defendant and Appellant. *169 Thomas C. Lynch, Attorney General, Daniel J. Kremer and Richard L. Hamilton, Deputy Attorneys General, for ...
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Plaintiff sued on a written contract alleging that defendant employed him as an auctioneer to sell farm machinery, then repudiated the contract and hired another. The trial court sustained a special demurrer to the complaint. The sole basis of the court’s order was that plaintiff did not have an auctioneer’s license under a Glenn County ordinance requiring one. The questions on appeal from the jud...
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Petitioner Mid-Way Cabinet Fixture Manufacturing (Mid-Way) appeals from a judgment denying its petition for mandate to compel San Joaquin County (county) and its planning director to grant a use permit for building purposes minus allegedly invalid conditions imposed by the county, to wit: conveyance to the county of certain interests in real estate. Mid-Way owns real property between Stockton and...
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have concluded that plaintiff has no cause of action premised upon an agreement to pay her a real estate commission and has failed to sustain the burden of proof of any fraud allegedly practiced upon her by defendant Rosenbaum. Attempted appeal from the order denying motion for new trial is dismissed. (Code Civ. Proc., § 963.) Appellant noticed an appeal from the order denying the motion to vac...
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The defendants, Samuel L. Bryson and Jesse Jackson, were both convicted of burglary. There is no question but that the residence of Charles W. Hasenkamp, on the outskirts of Merced, was burglarized or that a radio and television were feloniously removed from his house by someone or that these articles were found by peace officers in the pickup truck of Bryson which, with him present, had been dri...
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Plaintiffs members of the law firm of Carlson, Collins, Gordon & Bold, a partnership, brought this action against defendants to recover $28,504.70 in attorneys’ fees for legal services rendered on behalf of defendants in settling a will contest. Defendants denied that they owed money to plaintiffs and further cross-complained seeking to recover a payment of $19,000 allegedly made to plaintiffs ...
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Defendants appeals following a conviction by the court of a violation of Penal Code, section 270, which provides that the father of a minor child “who willfully omits without lawful excuse” to furnish necessary support for such child is guilty of a criminal offense. *236 The facts are not in dispute. Appellant and the mother of the subject child were divorced in Florida in August 1957, where ...
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This is an appeal from a judgment of conviction of robbery. In an information filed in Los Angeles on November 19, 1965, defendant was charged with robbing Louis Aequistapace of about $780 in money on or about October 14, 1965. Defendant pleaded not guilty and in a trial before the court without a jury was found guilty as charged. After the defendant was found guilty and before he was sentenced it...
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This is an appeal from a judgment of conviction of attempted escape from jail. In an information filed in Los Angeles on March 24, 1966, defendant was charged with attempted escape from jail in violation of sections 4532, subdivision (b) and 664, Penal Code, in that on February 28, 1966, he attempted to escape from jail while confined therein as a prisoner and while convicted of a felony, namel...
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This is an appeal from a judgment of conviction of second degree burglary and an attempted appeal from an order denying a motion for a new trial. In an information filed in Los Angeles on March 21, 1966, Buhe Marvin Blackwell and James Marion Beed were jointly charged in count I with burglarizing a building occupied by Clanton Block Corporation on or about March 1, 1966, and in count II with burgl...
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This is an appeal from a judgment of conviction of violating the provisions of section 10851, Vehicle Code, and an attempted appeal from an order denying a motion for a new trial. In an information filed in Los Angeles on July 12, 1966, defendant was charged in count I wit-h the grand theft of an automobile belonging to Jean B. Cain on or about June 15, 1966, and in count II with a violation of...
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Count I of the information charged David J. Robertson with sale of heroin on May 14, 1966 (§ 11501, Health & Saf. Code), to which he pleaded guilty. In count II, Louis A. Honea was charged with sale of heroin on May 16, 1966 (§ 11501, Health & Saf. Code), and in count III, Robertson, Honea and Helen Elsie Rhine were charged with possession of heroin for sale on May 17, 1966 (§ 11500.5, Health &...
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This is an appeal from a judgment of conviction of attempted robbery. In an information filed on March 23, 1967, defendant was charged with attempted robbery in that he did on February 23, 1967, attempt to take personal property from the possession and immediate presence of Russell D. Brown. Defendant pleaded not guilty. It was stipulated on May 18, 1967, that the cause be submitted upon the testi...
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This is an appeal from an order granting a motion under section 995, Penal Code, setting aside the information as to defendant. Respondent was charged in an information filed in Los Angeles on February 1, 1967, with the possession of marijuana on January 7, 1967. In the preliminary hearing, Officer Romero testified that he was on patrol duty on January 7, 1967, at about 3 :50 p.m. eastbound in ...
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The appeal is from a judgment following a jury verdict for plaintiff in an action for personal injuries. The injuries were caused by a fall. The fall resulted when a defectively installed bathroom sink in an apartment house became dislodged from the wall. The question: Is a landlord liable to an injured tenant for the described injuries when the landlord knows and the tenant does not know that ...
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This appeal originated in the Third Appellate District but was transferred to this forum by the Supreme Court. Prior to the transfer, the appellant filed an opening brief on March 20, 1967; and the Third Appellate District notified counsel for the respondents under date of April 25, 1967, pursuant to rule 17 (b) of the California Rules of Court, that if the respondents’ brief were not filed wit...
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Defendant was convicted of possession of marijuana (§ 11530, Health & Saf. Code). On February 19, 1964, criminal proceedings were suspended and probation was granted for a period of three years upon certain terms and conditions, among them that defendant spend 30 days in the county jail and thereafter obey all laws, orders, rules and regulations of the probation department and the court. Someti...
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On or about April 14, 1965, in the Superior Court for the City and County of San Francisco, petitioner was convicted upon his plea of guilty of a violation of Penal Code section 288 (lewd or lascivious acts upon the body of a child under 14). The court suspended proceedings and appointed two psychiatrists to examine petitioner and report as to whether he was a mentally disordered sex offender u...
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In this declaratory relief action defendants appeal from a summary judgment in favor of plaintiffs. On July 13, 1960, defendants, who had originally bought approximately 700 lots within a subdivision at Lake Tahoe, sold one of the lots to Geraldine Bull. The deed contained the following restriction; “Deed Restrictions: Subject to one private dwelling only to contain no less than 650 square feet...
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Defendants who are husband and wife, were found guilty in a jury trial of possession of marijuana. They appeal from orders granting probation and from an order denying their motion for a new trial. The appeal from the order denying such motion is non-appealable, and has been dismissed. The grounds of appeal from the conviction are insufficiency of the evidence and that marijuana, received ...
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Defendant was found guilty, after trial by a jury, of count one, robbery of the first degree, count two, assault by means of force likely to produce great bodily injury, and count three, burglary. He has taken this appeal from the judgment and sentence as to each of the three counts. Although defendant does not question the sufficiency of the evidence to support the judgment, having appealed on...
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The defendant, George Blackwell, a Negro laborer who was not without previous criminal experience, was accused in the information of carrying on a kind of concentrated economic warfare against grocery stores in and about Yuba City. He was charged with one count of conspiracy to commit forgery and 12 counts of forgery between September 24 and October 2, 1966 ■ originally, there were also four pr...
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Following an automobile collision, the lifeless bodies of Anna May Rowley and Eulah May Cooper were found in the vehicle in which they had been traveling. The *327executrix of Mrs. Rowley’s will filed a petition, pursuant to the provisions of section 296.41 of the Prohate Code, seeking to have it determined that they died under circumstances where there was no sufficient evidence that they died ot...
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This is an appeal from a judgment in favor of defendant in a rear-end vehicle collision case. John and Mary E. McHale, husband and wife, were the parents of Bridget, who was about ten (10) years of age at the time of the collision in question. Each of the three brought an action for damages resulting from the accident hereinafter described. In a jury trial a verdict for defendant was returned and ...
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This is an appeal by each of the appellants from convictions of murder in the first degree. In an information filed in Los Angeles on August 31, 1962, Arnold McClellan, Willie Ford and Henry Peter Bumpers were charged with murdering Joseph Palmer on July 6, 1962. Ford was charged with a prior robbery conviction in Los Angeles on December 11, 1959, and McClellan was charged with a prior burglary co...
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—Defendant was convicted of three counts of receiving stolen property (§ 496, Pen. Code); he appeals from the judgment. On September 18, 1965, a .22 caliber revolver, serial number 83842, was stolen from the automobile of Mary Lou Robbins; on October 27, 1965, TV tube caddies and other items, including a manual, were stolen from a station wagon driven by John Smerik; and on October 28, 1965, Dr...
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—Defendant was found guilty of driving a vehicle while under the influence of narcotics (§23105, Veh, Code). Motion for a new trial was denied and the court ordered a petition to be filed in department 95 under section 3051, Welfare and Institutions Code. Upon his return for further criminal proceedings, defendant was sentenced to the state prison, the term to run concurrently with any prior ineo...
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—This is an action for the wrongful death of a 3%-year-old girl who died by drowning in a swimming pool maintained on the premises of a residence owned by defendants but occupied by their tenant. Plaintiff, the child’s father and administrator of her estate, appeals from a judgment entered on a jury verdict for defendants. The principal issue is whether the trial court erred in withholding...
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—In this proceeding in the Estate of William Marrian Maxey, deceased, three petitions were filed for an order appointing administrator—-the petition of Baldo M. Kristovich, as public administrator; the petition of Lura Maxey Eissmann, as “widow” of the deceased; and the petition of Harry Lee Maxey, as the son of the deceased. Ivy Proclc, Walter Maxey, Fonnie Maxey,' Ruth Morrison, Sue Adams, and ...
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—Washington National Insurance Company (hereinafter sometimes referred to as Washington) appeals from a judgment entered in favor of Eldon J. Koorstad by the trial court, sitting without a jury, in this action to enforce a contract for insurance coverage and obtain sickness and disability payments thereunder. Koorstad is an attorney who has been engaged in active practice for a number of y...
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—This is an appeal from a judgment of conviction of robbery. In an information filed in Los Angeles on December 23, 1965, defendant was charged in count I with codefendants Arthur Bacon and Ernest Walters with robbing Glenn Wilder of a revolver and money in excess of $34,775 on November 26, 1965; in count II with murdering Ronald W. Davis on the date in question, in count III with assault with a d...
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—Defendant was convicted of possession for sale of heroin (§11500.5, Health & Saf. Code) and possession of marijuana (§ 11530, Health & Saf. Code); he appeals from the judgment. Officer Burke assigned to narcotic detail had information from three separate confidential informants that one Cano, driving a green and white 1956 Buiek, was making deliveries *415 of heroin around 8t...
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—Defendant was charged with burglarizing the residence of Richard Terrell (§459, Pen. Code); the trial court found him guilty of burglary, second degree. He appeals from the judgment. Defendant is a brother-in-law of Raymond Terrell; he worked for Raymond’s brother, Richard, and had been in Richard’s home. While the Richard Terrells were on vacation in July 1966, their home was entered from the...
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—This is an appeal from a judgment of conviction of robbery and an attempted appeal from the order denying motion for new trial. In an information filed in Los Angeles on September 13, 1963, Robert Lee Johns (appellant herein) and codefendant Cornelius O’Neal were charged with robbing Phillip Jaffe of a revolver and about $60 in money on August 23, 1963. It was *431further charged that at the time...
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—In a jury trial defendant was found guilty of grand theft. He appeals from the judgment (order granting probation). Appellant contends that the evidence is insufficient to support his conviction of grand theft, and that there was no corroboration of the victim’s testimony. During the period of time from December 3, 1965, to February 10, 1966, defendant obtained $7,000 from Mrs. Ida Reiter, w...
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—In an indictment returned by the grand jury, Peter Stafford and Henry De Maddalena, Los Angeles police officers, together with Emmett Canard, Cyril Myers, George Miller and Maury Adler, were charged with conspiracy to offer and give bribes to executive officers of the State of California (Pen. Code, § 67), to ask for and receive bribes for officers, employees and appointees of the City of Los An...
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—Petitioner Olen Hollon sought mandate in the trial court to compel reinstatement by his employer, Shasta Union High School District, alleging that the district had discharged him because of his religious beliefs. After a hearing in which evidence was taken and findings were made, the trial court denied the petition. Hollon appeals. Hollon had been employed by the school district since 196...
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—Respondent filed an action for divorce, and appellant wife filed a cross-complaint for separate maintenance. The court granted respondent husband a divorce on the ground of cruelty, awarded the custody of three of the children to appellant, and ordered respondent to pay $65 per month per child for their support and, further, to pay $50 per month toward house payments on the family home which was...
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—Plaintiff Baruch Investment Company appeals from a judgment which denied it recovery for breach of an agreement under which respondent Huntoon Engineering (hereinafter Engineering) used its accounts receivable in order to obtain working capital. The court also awarded Engineering $42,951.02 damages on its cross-complaint for usury. Donald Huntoon and La Verne Huntoon, husband and wife, were pr...
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—Petitioner appeals from an order denying arbitration under an automobile liability policy containing the uninsured motorist indorsement required by section 11580.2, Insurance Code. 1 The policy was issued to Clotilda Lechuga as owner, and covered a 1965 Volkswagen. On April 2, 1966, petitioner, appellant herein, was a passenger in the vehicle which was then being operated by one Ernstrom wit...
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—The primary question raised by this appeal from a judgment of conviction after a jury trial upon pleas of not guilty and not guilty by reason of insanity of the felony of battery upon a peace officer, (Pen. Code, § 243) is whether the trial court, on its own motion, should have instructed the jury upon the defense of diminished capacity because of the evidence of appellant’s epileptic conditio...
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—Defendant pleaded not guilty and not guilty by reason of insanity to a charge of the murder of Rick Rebbe. The court appointed three psychiatrists, Drs. Crahan, Drury and Walters, to examine the defendant as to his sanity pursuant to section 1027 of the Penal Code. By stipulation, in which defendant personally joined, the guilt issue was submitted to the court upon the transcript of the prelimina...
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—Plaintiff, a subdivider and builder, entered into a written agreement to purchase land from defendants, husband and wife. This action was brought for specific performance of the agreement, or in the alternative, for damages. After a trial without a jury the court awarded plaintiff damages in the sum of $6,000. Defendants are appealing from the judgment. The underlying facts, which are not...
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—Defendant, the buyer, appeals from a judgment decreeing specific performance of a contract for the sale of a 50-unit apartment building in the Panorama City area. She contends that there was no proof, nor any finding, to the effect that the remedy sought by plaintiffs was mutually available to her; it is also urged that the evidence was insufficient to support the finding that plaintiffs had p...
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—This is a proceeding to review an order of the Superior Court for Los Angeles County adjudging the defendant, petitioner here, guilty of contempt of court. The order was made October 2, 1967, in action number NO D 146, entitled Frances Helen Sheldon v. William Millard Sheldon. We have taken judicial notice of the file in that action pursuant to section 459 of the Evidence Code. Plaintiff filed...
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—Defendant was accused in one count of murder, in 13 counts of armed robbery, and in two counts of kidnaping for the purpose of robbery. He admitted that he had been convicted previously of two felonies. In a jury trial, he was found guilty as charged, and it was found that the robberies were of the first degree, the murder was of the first degree, and defendant was armed at the times the offenses...
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—In an action to establish the paternity of a minor child, Kathy Susanne Hess, and to secure an order for her support, the trial court determined that the defendant Whitsitt was the father of the child and ordered support. Mr. Whitsitt has appealed from the judgment. *553 The findings of feet pertinent on this appeal are: 1. Ruby Hess is the natural mother of the child. 2. The defendant is th...
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—As a taxpayer residing in the City of Los Angeles the plaintiff sought to enjoin the defendant city and the named officers from making any payment to captains of the city’s fire department under the provisions of an ordi1 The superior court denied the relief sought and the plaintiff has appealed. The pertinent facts are not in dispute. On May 13, 1965, the city council adopted an ordinance amendi...
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—Defendant was convicted by the court of selling the barbituric acid derivative, secobarbital, also known as tuinal, in violation of Health and Safety Code, section 11912. He appeals from the judgment. 1 On the morning of May 4, 1966, two undercover police officers parked their car adjacent to 522 East 59th Place. They inquired about purchasing narcotics. Defendant came over to the car. One o...
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—On April 27, 1965, a judgment on a jury’s verdict was entered by the clerk of the Stanislaus County Superior Court for $32,000 and costs against the defendant William Rossini, Jr., and for $10,000 and costs against his employer, Rossini Brothers, for serious personal injuries sustained by plaintiff. The defendants moved for a new trial and for the entry of a judgment in their favor notwithstan...
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Appellants appeal from a judgment denying them specific performance or money damages for an alleged breach of contract to convey real property. Respondent, an 82-year-old widow, was the owner of certain real property in Reseda. On May 24, 1961, appellant paid respondent $1,350 outside of escrow and the parties then executed escrow instructions for the sale and purchase of respondent’s property ...
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Respondents Avere each charged by information with one count of violating Penal Code, section 459 (burglary). Their motion to set aside the information under Penal Code, section 995 was granted. The People appeal from the order granting the motion. (Pen. Code, § 1238, subd. 1). On August 4, 1966 betAveen 9:30 and 10 p.m., Dean Hummer, the manager of a Harley-Davidson motorcycle shop in Van Nuys...
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This is an appeal from that part of a judgment of the Municipal Court of the Los Angeles Judicial District which decreed the foreclosure of a mechanic’s lien. The Appellate Department of the Superior Court for Los Angeles County affirmed the judgment. On its certification to us, we transferred the appeal to this court under rule 62, California Rules of Court. The question before us is whet...
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On March 11, 1966, the district attorney filed an information charging defendant with grand theft. Five prior felony convictions were also charged. On the same day the public defender was appointed to represent defendant. On March 17 after the denial of a motion under section 995 of the Penal Code the case was set for trial on May 3. On that date the People were ready for trial, but Mr. Fujisaki,...
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In a two-count information defendant was charged with violations of section 11531 of the Health and Safety Code (sale of marijuana) and section 11503 (sale of a *29 substance falsely represented to be a narcotic.) After a jury trial he was found guilty on both counts. On April 11, 1966, Officer Brown of the Los Angeles Police Department was working “undercover narcotics.” He k...
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Plaintiff is the owner of an appropriative right to take water from the Santa Ana River, which right was assessed by the defendant Comity of San Bernardino for the year 1961-1962 as bearing a tax of $5,866.94. Plaintiff paid under written protest. It is conceded that this water right is taxable property and the sole question is situs for the purpose of taxation. Plaintiff contends the situs is ...
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Charles E. Brown, real estate broker, appeals a judgment 1 entered pursuant to jury verdict, awarding him commissions in the amount of $563; appellant claims that he is entitled to an additional $21,541.80 in commissions according to Ms prayer. In May of 1958, subdivider R. A. Watt entered into an escrow for the purchase of 163 acres of property and as part of the purchase price gave to the s...
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On petition for commitment of appellant as a narcotic addict under section 3100, Welfare and Institutions Code, the superior court made its order of detention and for examination under section 3102, Welfare and Institutions Code. On April 18, 1966, two doctors examined appellant and the hearing was had April 19, 1966; appellant was found to be a narcotic addict and the matter was set for a jury...
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Action upon a promissory note. Appellants, all individuals, together with respondent Martindell, were directors and minority shareholders of a corporation known as El Bodrero Hotel, organized to build and operate a motel. The corporation encountered financial difficulties in completing construction of the motel. At a board meeting on February 15, 1958, appellants Bodrero and Sant each agree...
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This appeal is from a judgment for respondents in an action for declaratory relief. The sole issue presented is whether appellant Albert H. Navarro was driving an automobile owned by respondent Ronald R. Howard with the consent of the owner and is therefore entitled to benefits under Howard’s insurance policy issued by respondent Northwestern Security Insurance Company. The single question of fact...
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The indictment charged the five defendants with three offenses: count 1, burglary of Alvin Price’s residence with intent to commit a felonious assault; count 2, felonious assault upon Alvin Price; count 3, felonious assault upon Gregory Williams. The jury found defendants guilty of first degree burglary, felonious assault upon Price and simple assault upon Williams. The court imposed sentences on...
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Defendant Norman E. Lassiter appeals from an order modifying support provisions in a December 1961 interlocutory judgment of divorce. The divorce judgment details an eight-year declining scale of support payments, states defendant’s support obligation shall terminate in eight years, and declares “. . . the parties intend that the provisions for plaintiff's support shall be modifiable. ...” The tr...
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A judgment convicting defendant of grand theft was affirmed by this court July 2, 1965 (People v. Daugherty, 235 Cal.App.2d 564 [45 Cal.Rptr. 528]); the California Supreme Court denied a hearing August 25, 1965; the United States Supreme Court vacated the judg*83ment and remanded the case for further consideration in light of Chapman v. California, 386 U.S. 18 [7 L.Ed.2d 705, 87 S. Ct. 824]. AAre ...
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This is an appeal from a judgment of conviction of four counts of armed robbery and an attempted appeal from an order denying a motion for a new trial. In an information filed in Los Angeles on August 12, 1966, *85 defendant was charged in count I with robbing Albert Bobbins of certain personal property on or about July 20, 1966, and it was charged that at the time of the commission of the of...
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Defendant was charged with the offenses of possession of a firearm after having been convicted of a felony, viz., a violation of Penal Code, section 12021, and possession of a tear gas cartridge, viz., a violation of Penal Code, section 12420; waived trial by jury; was found not guilty of *91the former offense upon failure of proof of conviction of a prior felony; was convicted of the latter offen...
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Defendant was granted probation and the suspension of execution of sentence under a judgment which sentenced her to state prison on one count, and was granted probation and the suspension of imposition of sentence on a second count, following her conviction by a jury of two counts of perjury, in violation of the provisions of section 118 of the Penal Code. 1 She has appealed from the judgment, ...
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On July 5, 1961, plaintiff sued Paul A. Mason, attorney at law and notary public, on his alleged false acknowledgment as a notary and Ohio Casualty Insurance Company on the statutory bond, alleging that one Grant T. Shepherd neither signed nor acknowledged the document in question. On October 24, 1963, all parties appeared for trial; by stipulation of counsel the cause was ordered off cale...
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We are interpreting plaintiff’s notice of appeal as effecting an appeal from the summary judgment filed and entered November 23, 1965, after the trial court had made an order granting defendant Michael Arizmendiz’ motion for such a judgment. The notice of appeal, addressed to defendant “Michael Arizmendiz, et al., and to Clausen & Gilliland, his attorneys,” bids them take notice that he “hereby...
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Defendant appeals from a judgment of conviction of burglary in the first degree, and an adjudication he was an habitual criminal. At the trial the issue in the burglary charge was one of identification. There was no contention a burglary had not been committed. Defendant was identified as the burglar by the victim who saw him face to face, in a lighted room of the burglarized premises, for appr...
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This is a declaratory relief action to determine whether a comprehensive liability policy issued by plaintiff (Truck Insurance Exchange) covered the destruction by fire of two buildings occupied under a lease by the named insured, Reliable Foods, Inc., (Reliable). The agreed facts on which the matter was submitted were as follows: *142 Reliable leased two commercial buildings...
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J. — These consolidated appeals primarily concern the interpretation of Business and Professions Code 1 section 24755 as amended in 1961 which relates to minimum retail price schedules for branded distilled spirits. The section is part of the Alcoholic Beverage Control Act (§§ 23000-25762) which herein will be called the Act. The individual respondents and real parties in intere...
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This action for declaratory relief concerns the construction of the family exclusion and uninsured motorist clauses, respectively, of two automobile liability policies issued by the same insurer on two vehicles in the same family. The husband and wife collided while each was driving one of the family automobiles. The insurer, defendant, State Farm Mutual Automobile Insurance Company, hereafter St...
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Appellant Springer brought this action against respondent Singleton seeking damages on the ground that Singleton had induced Jerome Siemsen, George Siemsen and Jean Taylor (Siemsen) Rich to breach their contract to sell certain real property to him. The trial court entered judgment in favor of respondent Singleton, and Springer appeals. There is little dispute as to the facts. The Siemsens owne...
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Plaintiffs appeal from that portion of the judgment which denies them recovery of ad valorem property taxes levied for the years 1962 and 1963 on certain ‘ ‘ derrick barges” owned by appellants. Appellants contend (1) that two of their barges were specifically exempted from all such taxes by the terms of article XIII, section 4 of the California *192 Constitution; and (2) that in a...
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This is an action to recover a real estate commission. Judgment was rendered in favor of defendant Tarver. Plaintiff has appealed. In 1962 and for sometime prior thereto, defendant Manito, Inc. was the owner of certain improved real property known as the Monticello Motel. Although the corporation had not issued stock, defendants Niekum 1 and Tarver were the principal, if not the only, investo...
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Each of the defendants Bosby, Cooper, Harrington and Rhone has appealed from the judgment entered upon the verdict of a jury finding him guilty of *211 murder in the first degree. 1 The jury fixed each appellant’s sentence at life imprisonment. Appellants contend (1) that their extrajudicial statements were obtained without compliance with the rules enunciated in Miranda v. Arizona, 384...
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This appeal is from a judgment entered and sentence imposed after a jury found appellant guilty of robbery in the first degree. (Pen. Code, §211a). No appeal can be had from the sentence. This portion of the appeal is dismissed. (Pen. Code, § 1237.) At about 9 :15 p.m., on June 4, 1965, George G. Epstein was alone in his liquor store on Sepulveda Boulevard in Van Nuys, checking the cash register t...
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Plaintiff Harold J. Powers, as Director of the Department of Professional and Vocational Standards of the State of California, brought suit against defendants Sydney N. Floersheim (also known as S. Floersheim and as Sydney Floersheim), Elaine A. Floersheim, Paul Price (also known as Paul Pink), Maxine Pink, Herman Winters, and Ralph Schneider. The complaint alleges that none of the defendants i...
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On November 25, 1960, plaintiff was employed as a plumber and was engaged in cleaning out the sewerage system in a residence in Los Angeles County. He was using two chemicals in the operation, each designed to aid in the cleaning. One was manufactured by defendant Super-X Products, Inc., and the other, by defendant King Manufacturing Company (sometimes hereinafter referred to as King). In the e...
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This is an appeal from a judgment of the juvenile court1 finding the minor to come within the provisions of section 602 of the Welfare and Institutions Code and declaration of wardship.2 On August 19, 1965, a petition was filed in the juvenile court alleging that one Jimmie Jones, a minor, came within *242the provisions of section 602. The petition alleged that on August 17, 1965, Jimmie Jones wil...
Views: 10
The sole question presented in this appeal is whether, after recovering under an “open” fire insurance policy the cost of restoring a building to its pre-fire condition, the respondents may also recover the additional costs of *247 reconstructing in compliance with changed building codes. Accordingly, the controversy centers on the interpretation of sections 411, 412, 2051, 2070 an...
Views: 4
This is an appeal by plaintiff Martinez Typographical Union No. 597 from a judgment denying its petition to compel arbitration of an alleged dispute with defendants and cross-complainants Silversun Corporation and Herman Silverman. Responsive to the pleadings of the parties, the trial court found that the parties’ written collective bargaining agreement expired on February 28, 1963, and wa...
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256 Cal.App.2d 261 (1967) GRANT B. LA DEAUX, Plaintiff and Respondent, v. COUNTY OF ALAMEDA, Defendant and Appellant. Civ. No. 24013. California Court of Appeals. First Dist., Div. Three. Nov. 22, 1967. Dunivan & Byers, Dunivan, Byers and Wies, Robert D. Dunivan and Robert K. Byers for Plaintiff and Respondent. Robert H. Sharpe as Amicus Curiae on behalf of Plaintiff and Respondent. J. ...
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This is an appeal by the Hidden Valley Municipal Water District from a judgment directing the issuance of a peremptory writ of mandate. The writ would order the District to set aside its decision of February 29, 1964, denying petitioners’ petition for exclusion of their lands from the District and its decision of May 2, 1964, denying their petition for the District’s consent to the annexation o...
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J.—The People appeal from a judgment in condemnation awarding the sum of $183,000 for property taken from defendants for freeway purposes. The jury awarded $63,000 for the property taken and $120,000 for severance damages. Only the award of severance damages is in controversy on this appeal. Appellant sought to condemn lots 18, 19 and 20 of Tract 14798, which were referred to in the compla...
Views: 6
Plaintiff husband filed a complaint for divorce on May 13, 1964. He then filed an affidavit signed by Sue Ann, the parties’ married daughter, to the effect that she had served summons and complaint on the defendant on May 18, 1964. An interlocutory judgment of divorce which recites defendant’s default was entered on July 7,1964. On March 22, 1966, well over a year later, defendant noticed ...
Views: 2
Can a court, after denying motion for new trial but within the period allowed for passing upon that motion, vacate the denial on a motion under Code of Civil Procedure, section 473? That is our question. Although distracting, chronology seems required. In this action for personal injuries, the jury returned a verdict for plaintiff by 9 to 3 vote, with juror Burns voting with the majority. Jud...
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This is an appeal by Paul Casella and Michael Casella, brothers of Domenico Casella, deceased, from certain portions of the judgment herein, and appeal by Mary Casella, widow of said deceased, from certain other portions of the judgment. As the parties are both petitioners and appellants, Paul and Michael will be referred to as the “Brothers” and the widow will be referred to as Mary. Ques...
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The appeal is from a judgment following a conviction for two counts of violation of Business and Professions Code, section 4390 1 (passing fictitious prescriptions). There are three contentions: (1) Unlawful search and seizure; (2) spurious methods by the police in the use of photographs to bolster testimonial identification of defendant; and (3) insufficient evidence to support the verdict. ...
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Raymond Cox appeals from the judgment determining interests in the estate of Hazel Woehos. Appellant’s sole contention is that the trial court incorrectly construed that portion of the residuary clause of decedent’s will in which she bequeathed half of the residue of her estate. Decedent’s will provided that this portion of the estate should be held in trust for the benefit of her husband, Jacob J...
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Defendant appeals from a judgment of conviction for possession of marijuana (Health & Saf. Code, §11530) entered after a trial by the court. Defendant’s contentions relate solely to the legality of his arrest and of the subsequent procedures leading to the discovery of marijuana in his home. The relevant facts are as follows: Police Officer Russell went to defendant’s residence to execute ...
Views: 12
Defendant appeals from an order of the trial court modifying the terms of his probation in connection with his previous conviction of grand theft (Pen. Code, § 487). Defendant contends that the trial court invalidly increased the amount of restitution which he must pay as a condition of his probation. Defendant was found guilty of unlawfully taking $821.60 from Robert J. Keefe. Imposition of se...
Views: 15
Defendant appeals from judgment dismissing a cross-complaint for alleged malpractice of an accountant, after demurrer sustained without leave to amend on ground that the alleged cause of action is barred by the statute of limitations. Question Presented Does the statute of limitations in an action for alleged malpractice by an accountant start to run from the alleged negligent act, from disco...
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This is an appeal from a judgment sustaining a demurrer to the complaint of appellants Frank and Mary Schneider on the ground that the causes of action stated are barred by the one-year statute of limitations. (Code Civ. Proc. § 340, subd. 3.) Mary’s cause of action is to recover for an assault allegedly committed upon her by respondent. Frank, her husband, seeks to recover damages for the loss...
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In this personal injury action, involving three motor vehicles, the demurrer of defendant insurance company (referred to hereinafter as “INA”) to the third count only of the first amended complaint was sustained with leave to amend. 1 Upon plaintiff’s written election to stand on said count as pleaded without further amendment, judgment was *376 entered dismissing the third count. This appeal...
Views: 8
Tsuro Inouye Kamei, by her conservator Takeshi Kawagoe, appeals from a judgment dismissing her action against Masaaki Kumamoto and Phyllis K. Kumamoto for specific performance of a settlement agreement (pending action). The judgment followed an order sustaining respondents’ demurrer to Tsuro’s amended complaint for specific performance after Tsuro indicated to the trial court she did not desire to...
Views: 1
Wabash Fire and Casualty Insurance Company (Wabash) appeals an order denying its motion to set aside a bail forfeiture. On 1 February 1965 Wabash fded a bail bond in Los Angeles Municipal Court for $3,850 on behalf of Clarence Lee Thompson, whose trial on a charge of possession of heroin was set for 10 June in the superior court. On that date Thompson did not appear, and bail was forfeited by an o...
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Rivera appeals a judgment of conviction for possession of heroin. (Health & Saf. Code, § 11500.) *390On 3 June 1966, Linda Morales informed Deputy Sheriff Trujillo of the Los Angeles County Narcotic Detail that Rivera was selling heroin from the residence of Marie Jacquez on Boulder Street, where he and Mrs. Jaequez’s son, Vincent were staying. When Linda said she would be willing to make a purcha...
Views: 0
J. — Defendant was charged with the murder of his wife. A jury found him guilty of voluntary manslaughter, a lesser included offense. He appeals from the judgment of conviction and from the order denying his motion for new trial, 1 contending that his confessions were inadmissible because made involuntarily and in violation of his right to counsel, and, further, that evidence used against him w...
Views: 10
Defendant and his niece, Charlene Peterson, were charged with unlawfully possessing heroin for sale. (Health & Saf. Code, § 11500.5.) In count II, only Charlene Peterson was charged with another violation of the same section. Defendant and the codefendant were convicted but the judgments were reversed on appeal. 1 The matter was set for retrial. Pursuant to Penal Code sections 1539 a...
Views: 8
A seven-court indictment charged Anthony Lloyd Chrisman with furnishing heroin to another, in violation of section 11501 of the Health and Safety Code, on August 12 and August 13, 1965; Chrisman, Patricia Marie Haydon, and Conrad A. Berger with conspiracy (Pen. Code, § 182) to commit burglary (Pen. Code, § 459), and grand theft (Pen. Code, § 484) in the month of August 1965; Berger with receiving ...
Views: 0
The People appeal from an order of the superior court setting aside, under Penal Code section 995, an information charging defendant Robert Lee Harris with three counts of burglary of a motor vehicle. (Pen. Code, § 459.) The only question presented to us concerns the validity of defendant’s arrest and the ensuing search of his automobile. We set forth the pertinent evidence presented at the pre...
Views: 12
Defendant, together with James Nelson, was charged with a violation of Health and Safety Code, section 11531 (selling marijuana) on December 7, 1964 (count I), and a violation of Health and Safety Code, section 11530.5 (possession of marijuana for sale) on December 14, 1964 (count II). The public defender was appointed; a plea of not guilty was entered; the public defender was relieved and anothe...
Views: 6
Defendant, together with Marie Louise Trevino, was charged with robbery in the first degree, the information charging that they were armed with a deadly weapon at the time of the offense. Trial by jury was duly waived. The court found defendant Bryant guilty as charged and defendant Trevino guilty of a violation of section 487, subdivision 2, of the Penal Code (grand theft from the person), a less...
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Defendant appeals from a judgment on a jury verdict awarding plaintiff damages for personal injuries suffered by Mm in an intersection automobile collision. The principal issue on this appeal is whether the court committed reversible error in giving an instruction on last clear chance. Under settled rules the evidence will be viewed in the light most favorable to plaintiff. The accide...
Views: 7
The complaint herein was in several causes of action, including one on money due on promissory notes executed by the defendant P. J. Pavese. The complaint was filed October 22, 1965, was served on October 28, and the parties agree that on November 4 defendant’s attorney was given 10 days from that date in which to answer. According to plaintiffs’ counsel’s declaration on or about November 15 defen...
Views: 1
Defendant was found guilty by a jury of a violation of Penal Code, section 288a. From an order *490 suspending imposition of sentence and granting probation on certain conditions, he appeals. As a result of complaints about homosexual activity in a park's public rest room, Deputy Sheriff Gingery and Detective Martin were assigned to investigate. They stationed themselves in a space adjacent t...
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Judith E. Wales, one of the legatees under the will of decedent Harriet B. Smith, appeals from an *497order entered pursuant to Probate Code, section 1080, determining interests under that will (and a codicil). The last of a series of professionally drafted wills was executed by testatrix on July 19, 1963. The property subject to that will was a comparatively small portion of the total estate owne...
Views: 0
Appellants were found guilty previously on a charge of possession of eoncealable firearms. Cooper appealed. The conviction was affirmed. (People v. Cooper, 249 Cal.App.2d 479 [57 Cal.Rptr. 588].) Worley did not appeal. The jury which convicted them disagreed on the charge of robbery. Another jury convicted Cooper and Worley of robbery and of assault with a deadly weapon, and found *502 that...
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The William Simpson Construction Company (“Simpson”) appeals from a judgment in favor of The Patent Scaffolding Co. (“Patent”) awarding to Patent judgment for $16,481.09, with interest and costs. Procedural and Factual Summary Three insurance companies, United States Fidelity and Guaranty Company, Niagara Fire Insurance Company, and National Fire Insurance Company (“insurers”), br...
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Plaintiff appeals from a judgment in defendants’ favor. Trial was to a jury. All issues on appeal relate to the instructions. Pacts On September 8, 1961, plaintiff asked her daughter to buy her a bottle of “Hi and Dri,” a deodorant manufactured and marketed by defendant which plaintiff had seen advertised on television. It was a very warm day; plaintiff was perspiring rather profusely...
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Defendants appeal from a judgment upon a directed verdict in favor of plaintiff in an unlawful detainer action. The judgment, in effect, makes no adjudication; recites the verdict of the jury finding ‘ ‘ plaintiff is entitled to restitution of the premises involved and costs of suit”; but decrees plaintiff “is awarded judgment against defendants ... in the sum of-Dollars ($-), lawful money...
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Defendant Lantz, who executed a guarantee of a lease under which plaintiff’s assignor leased equipment to the lessee, has appealed from a judgment which awarded the plaintiff damages against the lessee, who defaulted, and Lantz. The guarantor contends that there was no consideration for the guarantee; that repossession of the equipment following the lessee’s default terminated the lease as...
Views: 0
Appellant William C. Hartman appeals from judgment of conviction, after jury trial, of violation of section 211 of the Penal Code (robbery first degree armed with a deadly weapon).1 Appellant is represented by appointed counsel. Question Presented Effect of court’s instruction that in the court’s opinion appellant was guilty of the offense charged. Evidence At approximately 6:45 a.m. on July 5, 19...
Views: 7
This is an action to recover a real estate commission. Defendants’ demurrer was sustained to counts II, III and IV of the second amended complaint without leave to amend. 1 Plaintiffs 2 have appealed from the ensuing' judgment of dismissal. In the second cause of action it is alleged that Smith and Siegel were the owners of a large tract of unimproved land in Ventura ...
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The sole issued on this appeal is whether a portion of the state inheritance tax in the amount of $3,782 1 upon the transfer of a remainder interest in the residue of the testatrix ’ estate under her probated will to her sister and her sister’s husband can be avoided if those persons reject the bequest. After the report of the inheritance tax appraiser was filed on March 15, 1965, the sister an...
Views: 0
tern.* * — The petitioners, Anthony James Venturini, Paul Daniel Venturini, Elizabeth Ann Venturini and Michael John Venturini, minors, are the *564children of Edwin Levio Yenturini, and the grandchildren of the testatrix Dorothy O. Beauchamp, deceased. Edwin Levio Yenturini, hereinafter referred to as the respondent, is the son of the deceased. Eugene M. Elson was appointed as guardian ad litem o...
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This is an appeal from an order of involuntary commitment to the California Rehabilitation Center made upon a jury verdict that appellant was a narcotic drug addict. These civil commitment proceedings were initiated pursuant to Welfare and Institutions Code, section 3050, after appellant’s conviction on July 26, 1966, of a violation of Health and Safety Code, section 11721—a misdemeanor— illegal ...
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Plaintiff Raul Chavez appeals from a summary judgment in favor of the defendant in an action for damages for legal malpractice. On June 17, 1965, plaintiff filed his malpractice complaint. He alleged that on November 10, 1961, he hired attorneys Carter, Coudures and Ludlow to represent him in a pending divorce action between himself and Maria Chavez. On Febru *579 ary 14, 1962, the court in t...
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This is an appeal by the plaintiffs from two successive orders granting the motion of defendant Surgitool, Incorporated, a Pennsylvania corporation, to quash service of summons and complaint upon it. The ground of defendant’s motion was that it “is a foreign corporation not doing business within the State of California and therefore is not subject to the process of the Superior Court of this St...
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Defendant Pete Duran Romo and his codefendants, Searcy and Earl, were inmates of Deuel Vocational Institution. After a knife fight in the institution they were indicted on two charges: count one. assault with intent to commit murder in violation of Penal Code section 217; count two, possession of a deadly weapon by a state prison *591inmate in violation of Penal Code section 4502.1 Searcy pleaded ...
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Plaintiff filed a complaint seeking to quiet title to real property purchased several years before at a marshal’s sale. The court gave judgment for defendants, enjoining plaintiff from setting up any claim to the property, and plaintiff appeals. The facts are not in dispute. On or about May 20, 1953, plaintiff obtained and recorded a judgment against the then owner of the subject property. An exec...
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This is an appeal by plaintiff from an adverse judgment in the superior court in an action to quiet title to certain real property, or, in the alternative, for a money judgment for damages based on the theory of inverse condemnation. The real property involved is a 25-foot-wide strip of land, 12% feet on either side of the center line of Sunset Boulevard in the unincorporated territory of ...
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Plaintiff was granted an interlocutory decree of divorce and was given custody of the minor child of the parties. She was awarded $1,000 per month alimony and $150 per month for support of the child. Plaintiff also received all of the community property. Being dissatisfied with the financial aspects of the judgment, plaintiff has appealed. *617The parties were married in November 1950 and separate...
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Appellant appeals from an order revoking probation and from the judgment pronounced and ordered executed on October 27,1966. The question presented is the validity of the condition of probation that appellant “not . . . become pregnant without being married.” The sole basis for revocation of probation was that appellant had become pregnant without being married. Summary of the Record Appe...
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A jury found defendant and another male inmate of the California Medical Facility guilty of sodomy (Pen. Code, § 286). Both were sentenced to prison. Only defendant Frazier’s appeal is before us. A correctional officer of the prison, conducting a search of cells for contraband, entered the apparently unoccupied cell assigned to Frazier. A blanket was draped over the end and side of the bed. The...
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This is an appeal from a judgment of conviction of possessing narcotics. *633In an information filed in Los Angeles on July 1, 1965, defendant was charged in count I with having in his possession for sale marijuana on January 27, 1965, in violation of section 1153Q.5, Health and Safety Code; in count II with having heroin in his possession on January 27, 1965, in violation of section 11500, Health...
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This is a purported appeal from a judgment and an appeal from an order denying a motion for a new trial. In an information filed in Los Angeles on August 31, 1966, defendant was charged with grand theft in that on July 19, 1966, he feloniously took property of a value in excess of $200 from another. Defendant pleaded not guilty. It was stipulated that the cause be submitted upon the transcript of ...
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This is a purported appeal from a judgment and an appeal from an order denying a motion for a new trial. In an information filed in Los Angeles on April 22, 1966, defendant was charged with possessing heroin on February 21,1966. Defendant pleaded not guilty. It was stipulated that the cause be submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing....
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This is an appeal from a judgment of conviction of possessing marijuana, and an attempted appeal from an order denying a motion for a new trial. In an information filed in Los Angeles on July 20, 1966, defendant Griffen was charged with codefendants Sammie Mosley, Jr., Henry Turner, Jr., and Clifton Perkins with involvement in marijuana transactions. Count I involved Mosley in a transaction which ...
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This is an appeal from that portion of an order of the probate court entered on June 3, 1966, which directed the trustee of a testamentary trust to distribute to respondent Laura Elaine Canfield Pierce one-half of the principal of the trust estate remaining in the hands of the trustee on June 15,1965. The resolution of the controversy presented to the court below by the parties to this appeal invo...
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Hubert Arthur Roman appeals a judgment of conviction for second degree murder, assault with a deadly weapon on a police officer engaged in the performance of his duty, and felony child-beating. On 3 November 1965, Officer Richard Tapia of the Santa Monica Police Department went to Roman’s apartment house in response to a child-beating complaint, and was informed by a resident of the building th...
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Defendant, a 17-year-old boy at the time of the killing, appeals from a judgment entered upon a jury verdict finding him guilty of murder in the second degree following a trial which commenced on April 25, 1966. The jury rejected defendant’s plea of not guilty by reason of insanity. 1 The principal question presented by this appeal is whether an exculpatory statement made by the defendant short...
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This is an appeal from an order filed August 13, 1965, instructing a trustee, as authorized by Code of Civil Procedure, section 963, subdivision 3, and Probate Code, section 1240. The facts are that on December 27. 1949, the Alice N. Joslyn testamentary trust was established, and M. L. Joslyn was appointed trustee. On June 30, 1963, M. L. Joslyn died. M. L. Joslyn died testate, and b;r his will ap...
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Petitioner, an inmate of Folsom State Prison, seeks by habeas corpus to obtain his release therefrom, contending : 1. Judgment was pronounced and sentence imposed upon him without counsel or a knowing waiver of counsel, and the trial court failed to advise petitioner of his constitutional rights, and 2. His probation was illegally revoked. On January 13, 1958, petitioner, represented by cou...
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Appellant appearing in propria persona has filed a document designated “appellants, reply brief.” It fails to comply with the requirements of the rule relating to form and content of briefs (rule 15(a), Appellate Rules, California Rules of Court) and is entirely unintelligible. While encumbered with a language barrier, appellant nevertheless lias made her argument on her testimony given in a prev...
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Jeanne M. Bare, plaintiff wife, appeals from (1) the interlocutory judgment of February 8, 1965, granting a divorce to cross-complainant husband, Richard L. Bare; (2) the supplemental judgment dated July 12, 1965, determining the community and separate assets of the parties; and (3) the court’s order dated October 6, 1965, denying attorney’s fees and costs on appeal. Jeanne and Richard Bare wer...
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This is an appeal from a judgment after the sustaining of a demurrer without leave to amend. William McLeod on June 2, 1966, filed a petition in the Superior Court of Los Angeles County wherein, among other things, he alleged the incorporation of the City of Los Angeles] that the members of the board of civil service commissioners of the city were duly appointed and acting; and that the police ...
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Defendant, charged with possession of heroin for sale (§ 11500.5, Health & Saf. Code), was found guilty of a lesser but necessarily included offense, possession of heroin (§ 11500, Health & Saf. Code). He appeals from the judgment. Federal Narcotic Agents Borquez and Restow had information that the intersection of Brooklyn and Breed in Los Angeles was a “hot” corner and a “hangout for a lo...
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This is an appeal from a judgment of conviction of a violation of section 11500.5, Health and Safety Code (possession for sale of heroin). In an information filed on March 3, 1965. in Los Angeles, defendant was charged with possessing heroin for sale on January 21, 1965. Defendant pleaded not guilty and in a jury trial was found guilty as charged. Criminal proceedings were adjourned at the instanc...
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Plaintiff, a real estate broker, filed an amended complaint against the Forest Lawn Company (a California corporation), against three connected corporations and against nine individual defendants, who were officers, employees or agents of the corporate defendants, for damages for *716 alleged intentional interference with a brokerage agreement existing between plaintiff and the sel...
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Petitioner seeks release from the state prison by means of habeas corpus. His point is that when the Adult Authority purportedly refixed his sentence at maximum (which is life imprisonment, his conviction having been for first degree robbery) on August 10, 1962, his term had expired ; wherefore, the Authority was without power to act as it did. Petitioner was received in state prison on the rob...
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This is an appeal from a judgment in favor of plaintiff in an action for personal injuries. Plaintiff instituted this action against several defendants. A motion by Keene doing business as Silverlake Termite Control for a directed verdict was denied. A 10-to-2 jury verdict was returned in favor of plaintiff against Keene and against Donald Gurwell, doing business as A-l Fumigating Company,...
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Doctor B. Renault Able appeals from the order of the superior court sustaining without leave to amend the general demurrer of Zee Construction and dismissing Abie’s action. 1 Abie’s complaint alleges that he employed Cass Van Der *730 Zee, doing business as Zee Construction (hereinafter sometimes referred to as Zee), to construct certain improvements on real property owned by Able. A disput...
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Montell Rice Meacbam appeals his conviction by the trial court, sitting without a jury, on one count of bribing a public official in violation of Penal Code, section 165, a felony. Appellant was charged with five counts of bribery of a city councilman (Pen. Code, § 165) and was charged in the sixth count with bribery of an executive officer (Pen. Code, § 67). The court found him guilty of count...
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Petitioner seeks habeas corpus, attacking his conviction of possessing heroin for sale. (Health & Saf. Code, § 11500.5.) His non jury trial occurred on December 10, 1964, and judgment of imprisonment was pronounced January 18, 1965. Petitioner took an appeal. His conviction was affirmed by the Court of Appeal, Second District, Division Four, on January 27,1966. The decision is reported in People v...
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Defendants James Wayne Kennedy (Kennedy) and Charles Eugene Nitz (Nitz) appeal from judgments imposing prison sentences upon defendants respectively for possession of heroin. Kennedy and Nitz were found guilty of possession of a *757 narcotic, heroin (Health & Saf. Code, § 11500), transporting heroin (Health & Saf. Code, § 11501), and possessing marijuana (Health & Saf. Code, ...
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On October 29, 1962, at 3:04 p.m., a model 1956 International 10-wheel dump truck, loaded with 14% tons of gravel, collided with a Santa Fe passenger train at Katella Boulevard and the Santa Fe tracks in Orange County. The automatic signal light was flashing at the time of the collision, and the accident resulted from a failure of the truck’s brakes. The force of the impact resulted in a derail...
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A jury found defendant guilty of three counts of first degree robbery (§ 211, Pen. Code) and one count of kidnaping for the purpose of robbery (§ 209, Pen. Code); and that he was armed during the commission of the robberies. He admitted two prior felony convictions for which he served terms in the federal prison. He appeals from the judgment and order denying motion for new trial; the purported ap...
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Appeal from judgment in favor of the plaintiff in the amount of $14,070, together with interest at the legal rate from November 26, 1946, to January 26, 1966, aggregating a total judgment of $32,948, entered in the Superior Court in and for the County of Orange on April 8, 1966. Plaintiff and defendant herein, formerly husband and wife, were married in New York City in 1920. Their marriage endured...
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Following a jury trial defendants were found guilty of second degree burglary, denied probation and sentenced to state prison. They appeal from the judgments of conviction. Defendants contend that the judgments should be reversed *789 because (1) the offense for which they were convicted was not included in the commitment order holding them to answer; (2) evidence of other offenses was errone...
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By information petitioner was charged with two offenses: count I, a violation of Penal Code section 245, subdivision (b) (assault with a deadly weapon upon a peace officer); count II, a violation of Penal Code section 330 (gaming) . Before pleading, petitioner moved the superior court to dismiss both counts, pursuant to Penal Code section 995, upon the ground that he had been committed without re...
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By this action in declaratory relief, plaintiff sought a declaration of the interest of the parties in certain monies, now on deposit, received pursuant to a gas lease of *801 lands. The trial was before the court, without a jury, on an agreed stipulation of facts. In 1944 Arthur M. Wood and Ruby F. Wood, father and mother of George J. Wood, loaned the sum of $20,000 to their son, who used th...
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After the filing of appellant’s opening brief on March 28,1967, the respondents obtained, through six successive solicited orders, an extension of time to file respondents’ brief until October 6, 1967. No brief having been prepared by respondents within that extended period, notice was given by the clerk, pursuant to rule 17 (b) of the California Rules of Court, that the case would be submitted fo...
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Plaintiff Milton Miller, individually and as trustee of the Hotel Padre Trust, appeals from a judgment entered pursuant to an order sustaining demurrer without leave to amend. The demurrer alleged that the judgment in a prior action, City of Bakersfield v. Miller, 64 Cal.2d 93 [48 Cal.Rptr. 889, 410 P.2d 393], is res judicata. This action and the prior action arose out of ...
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Defendants and Cross-Complainants appeal from a decree ordering specific performance of an agreement for the exchange of real property between plaintiffs Favian Cano and Bonnie L. Cano, his wife, and defendants E. C. Tyrrell and Claire E. Tyrrell, his wife. At the time the exchange agreement was executed the Canos owned and operated a rest home at 735 4th Street, Woodland, in Yolo County, ...
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This is an appeal from a judgment of non-suit entered at the close of plaintiffs’ case in a wrongful death action arising out of an automobile accident. The trial court concluded that the cause of action was barred by the California “guest statute” (Veh. Code, § 17158) as a matter of law. We have reviewed the record and find that, on the evidence presented, the decedents were not guests in the ve...
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Glenn N. King brought suit against Pacific Vitamin Corporation, Lampert-White Co., a corporation, and Garth J. McQuade accusing them of unfair business practices and seeking an injunction and damages. King, Pacific, and Lampert-White, a subsidiary of Pacific, are wholesalers of merchandise supplied to retail drugstores in Los Angeles County. McQuade, a salesman, worked for King for two and a ha...
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Plaintiff, a licensed attorney, appeals from a judgment in favor of defendant Haas Realty, Inc. (“Haas”), in his action to recover, as alleged compensation for legal services, a share of the broker’s commission which Haas earned on the sale of real property to Public Service Housing Corp. (“Housing Corp.”). No appeal has been taken from the portions of the judgment in favor of defendants Blaine a...
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On March 1, 1966, a jury found defendant guilty (No. 313918) of possession of heroin on November 5, 1965 (§ 11500, Health & Saf. Code); of a subsequent sale of *861heroin on December 30, 1965 (§ 11501, Health & Saf. Code) he was convicted by a jury on April 5, 1966 (No. 317725). Tried separately, the two cases were consolidated on appeal. Before us are appeals from both judgments and order denying...
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A jury convicted defendant of five counts of burglary (§459, Pen. Code) and one of kidnaping (§ 207, Pen. Code); on appeal the Supreme Court reversed the judgments on the burglary counts and affirmed the judgment on the kidnaping count (VI) (People v. Failla, 64 Cal.2d 560, 571 [51 Cal.Rptr. 103, 414 P.2d 39]). On retrial a jury found defendant guilty of first degree burglary on counts I, II as am...
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Suit for personal injuries by Rousseau, an employee of the Board of Education, and by the State Compensation Insurance Fund as intervener, against West Coast House Movers. From a jury verdict in favor of defendant, Rousseau appeals. Voir Dire Rousseau claims prejudicial error in the selection of the jury because the court itself conducted the interrogation of prospective jurors on their vo...
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Dorothy Ann Shannon and Patricia Ann Nelson were accused by information of grand theft (Pen. Code, § 487). Shannon pled not guilty; a motion under Penal Code, section 995 was argued and denied. Trial by jury was waived and the cause was submitted on the testimony of the preliminary hearing. Shannon was found guilty; a motion for new trial was made and denied; proceedings were suspended and probat...
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A jury found James Robert McIntyre guilty of five counts of child molestation (Pen. Code, § 288). Before judgment, the trial court committed him for sexual psychopathy. He appeals from an order denying his motion for a new trial (Pen. Code, § 1237, subd. 2). McIntyre concedes the evidence sufficiently supports the five guilty verdicts. In substance, he committed lewd and lascivious acts up...
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Defendant James W. Powers appeals from a judgment after trial by jury convicting him of escape by force and violence (Pen. Code, §4532, subd. (b)), first degree robbery (Pen. Code, §211), two counts of kidnaping (Pen. Code, § 207), assault with a deadly weapon (Pen. Code, §245), and two counts of possession of a firearm while lawfully confined in jail (Pen. Code, §4574). He was sentenced, pursuan...
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Plaintiff Los Angeles Dodgers, Inc., (hereafter referred to as Dodgers) seeks recovery of taxes paid under protest to defendant Los Angeles County, which distributed a portion of the tax revenue to defendant City of Los *919 Angeles. The taxes were levied on a 40-aere portion of 300 acres of real property in the Chavez Ravine, which property was the subject of an agreement between the Dodgers a...
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This is an appeal from an order denying a petition for a writ of prohibition. Appellant herein filed a “Petition For Writ Op Prohibition Against Court Acting Without Jurisdiction and Points And Authorities” in the Superior Court of Los Angeles on September 6, 1966. Therein it is stated, among other things, that petitioner was engaged in selling books in the County of Los Angeles, that on April ...
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In this eminent domain proceeding, the State of California, acting through the State Public Works Board pursuant to the Property Acquisition Law (Gov. Code, § 15850, et seq.), seeks to acquire by comdemnation real property which is owned by the City of Los Angeles and used for park purposes. The board seeks to acquire the property for use by the Sixth District Agricultural Association (now known a...
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This is an appeal from a judgment of conviction of involuntary manslaughter (Pen. Code, § 192.2) a lesser and necessarily included offense in the charge contained in the information. On or about June 15, 1966, in an information filed in Los Angeles defendant was charged with murdering Bobert A. Stevenson with malice aforethought on May 10, 1966. Defendant pleaded not guilty and after a trial a ...
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In a derivative suit brought to recover secret profits gained by appellants at the expense of the corporation which they had promoted and formed, appellants cross-complained against their former attorney for negligently giving advice which led them into a position of liability to the corporation and to its shareholders. Cross-defendant attorney demurred on the ground that the cause of action agai...
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In a jury trial defendants were found guilty of murder of the first degree. They waived jury trial on the penalty issue, and in the trial on that issue the penalty as to each defendant was fixed at life imprisonment. Each defendant appeals from the judgment against him. Defendant Sosa appeals also from the order denying his motion for a new trial. Appellants contend that the court erred in rece...
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In a nonjury trial the defendant was found guilty of the three offenses with which he was charged, namely, possession of a sawed-off shotgun in violation of section 12020 of the Penal Code, possession of a .32 caliber *24 automatic pistol in violation of section 12021 1 of the Penal Code, and possession of morphine in violation of section 11500, Health and Safety Code. The defendant waived re...
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Defendant, represented by counsel, appeared for trial on two felony counts, namely, a violation of section *34 211 of the Penal Code (robbery), and a violation of section 459 of the Penal Code (burglary). He had entered a plea of not guilty and not guilty by reason of insanity. It was stipulated by the district attorney, the defendant, and his counsel that a trial by jury be waived on the burgl...
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Christina M. Alpers died testate on the 5th day of June 1964, and left four adult sons and four adult daughters surviving her, including the litigants herein, William A. Alpers, Carl Alpers, and Margarete Cummings, also known as Margarete Niquette. The last will and testament of the testatrix was executed on March 28,1952, and provided, inter alia, as follows: 1 ‘ THIRD: I hereby give, devi...
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Plaintiff, a minor, by his Guardian ad Litem, appeals from a judgment entered after the granting of a nonsuit in favor of the defendant D & L Construction Company (hereafter referred to as D & L), in a personal injury action brought against it and its employee, one Jesse Chism (not a party to this appeal), who was driving his pickup truck on a highway in Arizona when he struck plain ...
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pro tem. * This action arises out of a real property transaction between plaintiff Salem Development Co., a corporation (Salem) and defendant Ardmore Development Co., a corporation (Ardmore). The other defendants participated not as principals, but in secondary capacities in the transaction between Salem and Ardmore. Defendants Apex Realty and Management Co., Inc. a corporation (Apex) and Mare ...
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251 Cal.App.2d 64 (1967) THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JUNIOR ASTA, Defendant and Appellant. Crim. No. 317. California Court of Appeals. Fifth Dist. May 16, 1967. Belli, Ashe, Gerry & Ellison for Defendant and Appellant. Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General, for Plaintiff and Res...
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The judgment in this mandamus action directs the appellants to set aside the transfer of petitioner George Stokes from his teaching position at Castlemont High School to a similar position at Fremont High School and to reassign him to his former position, effective as of the commencement of the next school year, 1965-1966. The rationale of the judgment is that the transfer was not made in compl...
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Defendants appeal from a judgment quieting title in plaintiffs, 1 Richard Lawson and Wells Fargo Bank American Trust Company (hereafter bank), as executors of the estate of Dr. Alice F. Maxwell (hereafter Dr. Maxwell), to certain securities held in a custody account by the bank. Defendants, 2 who claim ownership of these securities under a purported inter vivas ...
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The plaintiff, the assignee of the owners and of the general contractor, has appealed from a judgment in favor of the defendant in an action upon a performance bond executed with respect to a subcontract for the installation of an air conditioning system in an apartment building in Las Vegas, Nevada. The findings of fact of the trial court were in part as follows : 1. On August 1, 1957, de...
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Plaintiff, Claudine A. Pedesky, for many years experienced problems with her feet. Seeking relief, she sought the services of defendant, Dr. Leon Bleiberg, a licensed podiatrist. Following an examination of plaintiff’s feet, defendant suggested surgery. On January 5, 1961, defendant operated. Subsequently, plaintiff sued, claiming that the operation was performed negligently and not within the ...
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Petitioner corporation, defendant in a pending action for wrongful death, seeks a writ of prohibition preventing respondent court from proceeding further in the action and a writ of mandate ordering dismissal of the case. The basis of the petition is that respondent court abused its discretion in denying petitioner’s motion to dismiss the action for failure to serve and return summons within the ...
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Plaintiff Phillip Calabrese brought this action against the County of Monterey to recover damages in the amount of $40,866.05 for extra work and materials furnished in connection with the construction of a highway in said county. Defendant county answered and raised the defense, among others, that plaintiff’s cause of action was barred by his failure to present it to the county within one ...
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Plaintiffs appeal from an adverse judgment in their action to quiet title to real property, arguing that the trial court erred in excluding evidence that the property was held for them under an oral trust by defendants’ judgment debtors. *143 The facts are not in dispute. In 1958 plaintiffs, Robert H. and Florence N. Jose, hereafter Joses, acquired a parcel of real property in San...
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This is an appeal from an order which, in effect, revoked letters of administration with the will annexed previously issued to the appellant public administrator, and then issued to Mary Sliney, respondent, letters testamentary. Mary Vollhaber, a resident of the county of Los Angeles, died on March 20, 1965, leaving an estate in the county. Her adult son, William J. Vollhaber, predece...
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In this action Axel and Mildred Schoenberg were awarded $117,500 as damages for fraud and negligence in the sale of plaintiffs’ real property to Jack Casey and wife Hilda. The judgment was against the Caseys, against Romike Properties, a corporation, a real estate broker, and George Albert Pratt, Mary Ellen Benner and Pauline Bell Witte who were salesmen of Romike Properties in its brokerage bu...
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On November 16, 1962, the County of Santa Barbara filed a complaint in the Santa Barbara County Superior Court against Purcell, Inc., a company engaged in the outdoor advertising business, to compel removal of various billboards in the vicinity of Carpintería, Summerland and Santa Maria maintained in violation of county ordinances. Subsequently, United Outdoor Advertising Co., Inc. intervened a...
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Facts Before retiring from the Coca Cola Company in 1954, Thomas Carl Thompson (Thompson) discussed with James F. Price (Price), an attorney-at-law and supposed friend, the advisability of post-retirement financial investment. Thompson had invested in and become a director of Acme Sash Balance Company, a firm then owned substantially by Mrs. James (Alice) Price. While the Thompson and Pric...
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Adolphus Hohensee and Donald Kenneth Smith appeal from judgments of conviction entered upon jury verdicts of conspiracy to cheat and defraud, etc. (Pen. Code, § 182, subd. 4) and conspiracy to advertise a drug or device represented to have any effect in certain diseases, in violation of Health and Safety Code, section 26286.5 (Pen. Code, § 182, subd. 1). Defendants ’ convictions stem from health l...
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Defendant Western Development Corporation (hereinafter called Western) was named as one of the parties defendant in a complaint filed on December 3, 1963, by the plaintiffs in the Superior Court in and for the County of Inyo. In this complaint, the plaintiffs sought (1) to quiet title to certain specifically described real property conveyed to defendants by reason of certain false and fraudulen...
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Kenneth A. Evilsizor, petitioner in the proceedings below, appeals from a judgment denying his petition for a writ of mandate. During the period with which we are concerned appellant was licensed by respondent Department of Motor Vehicles (hereinafter called “department”) to conduct a motorcycle sales business. In 1964 the department caused to be filed an accusation (in accordance with Gov. C...
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This is an appeal “from the decree denying adoption entered July 5, 1966, and from the denial of both Motion for New Trial, and, (in the Alternative), Motion to Vacate a Decree and to Enter Another and Different Decree denied in Court July 19, 1966.” The appeal, in effect, is from the denial of the petition of Madeline Marie Christensen and Wayne Ilarbro Christensen for the adoption of Baby Boy...
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The County of Ventura sued Channel Islands State Bank to recover $60.14 in property taxes and penalties levied on its sign and night depository assessed to it for the fiscal year 1963-64. Defendant appeals from judgment for plaintiff. In January 1963, pursuant to the terms of a five-year lease defendant moved into the ground floor of a building located in the City of Ventura. These quarter...
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In 1959, R. H. Roussey and others were owners of a parcel of land in Oxnard, California. Defendant R. Leon Edgar & Associates, Inc. (Edgar) was engaged by plaintiffs to prepare plans and specifications for a building to be built on plaintiffs’ land. Edgar was to supervise that construction. Defendant Ernest W. Hahn, Ine. (Hahn) by contract was engaged by plaintiffs to construct the building. Th...
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Plaintiff appeals from a summary judgment in favor of defendant directing she take nothing by virtue of her amended complaint for partition and an accounting. Plaintiff and defendant were joint owners of a life estate in three parcels of real property. Defendant also was the owner *261of the remainder estate in these parcels. Vesting of the aforesaid interests occurred by an agreement between the ...
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Plaintiff, a prospective patron of the restaurant owned by defendants, hereafter Kirby’s, recovered damages for personal injuries sustained when she tripped over a drainage berm in a private walkway that served as one of the approaches to the back door of Kirby’s from the adjacent public parking lot. On this appeal, the contentions are that defendants were not liable, as a matter of law, and th...
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Defendant appeals from a judgment of conviction of felony: violation of Health and Safety Code section 11912 (sale of amphetamine, a dangerous drug). Appellant attacks the sufficiency of the evidence to sustain the judgment and asserts that the statute he was convicted of violating is unconstitutional. We uphold the judgment of the trial court. On September 27, 1965, John Thompson, an agent of the...
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The plaintiff in this personal injury action appeals from a judgment in favor of defendant which followed an adverse verdict by a jury. On August 3, 1962, there was a collision between vehicles operated by the respective parties at the intersection of Burton Way and Foothill in Beverly Hills. The intersection was controlled by signals. Each party claimed at the trial that she entered on the gre...
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Plaintiff Potter filed an action against defendant County of Los Angeles (sometimes hereinafter referred to as County) “To Quiet Title Under Section 738, C.C.P., and For Declaratory Belief Judgment and Injunction.” Plaintiff Potter’s appeal followed from a judgment in favor of the defendant County. The case was submitted upon a stipulation of facts. They are: “During the period Novemb...
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Defendant Linnecke appeals from a judgment in the sum of $10,000 compensatory damages plus $1,000 punitive damages. The judgment was based on findings that: 1. Linnecke promised the plaintiff Wood to perfect a security which Wood held to secure a loan he had made to one Madron. 2. The promise was made without intention to perform; and 3. without the security the loan had become worthl...
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Plaintiff appeals from a summary judgment granted defendant Guy F. Atkinson Construction Co. in a personal injury action. 1 Atkinson was the general contractor under a contract with the state to build a section of a freeway (U. S. Highway 80) in Placer and Nevada Counties. Included in the contracted work was an overpass or bridge where the highway crosses railroad tracks and a coun...
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Plaintiffs Braulio and Berdella Custodio, husband and wife, have appealed from a judgment of dismissal 1 entered upon an order sustaining without leave to amend defendants’ demurrer to a complaint in which plaintiffs sought to recover damages resulting from the pregnancy of Mrs. Custodio following the failure of an operation undertaken and performed to accomplish her sterilization. ...
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Plaintiffs sought to enjoin defendants’ use of a country roadway traversing plaintiffs’ land. Defendants cross-complained to enjoin plaintiffs’ construction of any barriers across said roadway. The trial court granted the relief sought by plaintiffs and defendants appeal. In 1962 defendants entered into possession of a 1200-acre parcel of land in Humboldt County. The south fork of the Eel ...
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This is an appeal from a final order of condemnation following a jury trial wherein compensation in the sum of $72,500 was awarded for the taking of the subject parcel located within the project area of the Bunker Hill Redevelopment Project. Plaintiff’s authority to acquire the property in suit for the elimination of blight and for redevelopment purposes has heretofore been given judicial sanct...
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Defendants appeal from a judgment decreeing the foreclosure of plaintiff’s mechanic’s lien for surveying and engineering services rendered in connection with the subdivision of Tract 23198. Defendants contend that plaintiff’s mechanic’s lien is void because (1) the contract under which plaintiff performed its services was not a direct contract with the owner and therefore plaintiff’s failure to...
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A jury found defendant guilty of first degree murder and of attempted murder. The penalty phase of the trial for murder ended in a mistrial with the jury unable to agree on a verdict. The court denied the People’s motion for a new trial on the penalty question and sentenced defendant to state prison for the term prescribed by law. In appealing from the judgment, defendant raises numerous cont...
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After trial by the court, a jury having been waived, petitioner was found guilty of two counts of violation of section 11501 of the Health and Safety Code (sale of a narcotic other than marijuana). Judgment of conviction was pronounced on November 26, 1963. In his appeal, petitioner, who was represented by counsel, raised the following contentions : insufficiency of the evidence, entrapment, and t...
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pro tern. * —Plaintiff filed her action *381 wherein she sought damages for personal injuries claimed to have been sustained as the result of a hand to hand combat between the defendants Thomas M. Banning and Jerry Di Donato which occurred upon the premises owned and operated as a bar by the defendant Strebor Corporation and while the plaintiff was lawfully upon the premises as an invitee. ...
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This is an appeal from the orders “with respect to the order to show cause of defendant in re modification dated March 24,1965, the order to show cause of plaintiff in re modification dated May 14, 1965, and the order to show cause of plaintiff in re contempt dated November 17, 1965, said motions have been heard by the . . . Court. ...” Appellant and respondent were married October 14, 1942, and t...
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This is an appeal from a judgment of conviction of rape. In an information filed in Los Angeles County on February 18, 1966, defendant was charged with raping Odessa M. Nelson (a person of the age of 16 years), on or about September 25, 1965. Defendant pleaded not guilty and in a jury trial held on April 20, 1966, was found guilty as charged. Probation was denied and defendant was sentenced on ...
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A jury convicted defendant of a charge of burglary in the second degree (a violation of Pen. Code, § 459) in that he did on October 14, 1963, enter a building occupied by Robert J. Lee with intent to commit theft. Defendant is appealing from the judgment. The prosecution’s evidence includes the following: On the morning of October 14 Robert J. Lee arrived at his office and observed that during ...
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Defendant was charged with violation of Health and Safety Code section 11531 (sale or furnishing of marijuana), and Health and Safety Code section 11530 (illegal possession of marijuana). The public defender was appointed and defendant pied not guilty. On April 16, 1965, the case was called for trial and, on motion of defendant, trial was continued to May 10,1965, time waived. On May 10, 1965, tr...
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The single contention urged by defendant in this appeal, following his conviction by the court of possession of marijuana for sale (Health & Saf. Code, § 11530.5), is that the evidence which convicted him was secured through an illegal search and seizure. We conclude his position lacks merit. On April 19, 1965, defendant walked up to the ticket counter for Trans World Airlines at Los Angel...
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Plaintiff appeals from a judgment dismissing his action with prejudice based upon the granting of defendant’s motion for nonsuit following plaintiff’s opening statement. The Opening Statement The opening statement, with additions and elaborations stated after defendant had made the motion for nonsuit, covered the following assumed facts: In the evening on September 8, 1963, plain...
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Appellants are the owners of a lot on which their home stands. It is near but not within the City of *416 Whittier. The east boundary of the lot abuts Pioneer Boulevard and access to this way has not been disturbed. Access from Choisser Street, upon which the south border of the lot abuts, was taken by the state by eminent domain for use in construction of an off-ramp from the San ...
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The People appeal from an order made under Penal Code section 995, setting aside an information which charged respondents with violation of section 11530 of the Health and Safety Code (possession of marijuana). We uphold the trial court’s determination that the evidence heard at the preliminary hearing was not sufficient to sustain an order holding the defendants to answer. The magistrate’s ord...
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This is an action for the forfeiture of an automobile which allegedly was used in violation of section 11610 of the Health and Safety Code (using vehicle for unlawful transportation or possession of narcotic). Irving Busch, the registered owner of the automobile, filed an answer to the People’s Notice of Seizure and Intended Forfeiture Proceedings. The verdict was in favor of the defendant. The co...
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Appellant was convicted for driving while under the influence of a narcotic (violation of Veh. Code, § 23105). Criminal proceedings were adjourned, a petition was filed pursuant to Penal Code, section 6451 (now Welf. & Inst. Code, § 3051), and the proceedings were transferred to department 95 of the superior court to determine whether appellant was either a narcotic addict or in imminent danger of...
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Atlas, a corporation in the business of repairing and maintaining aircraft engines, sued for claim and delivery of three aircraft engines and one QEO (quick engine change) unit attached to a DC-6B aircraft, No. 90771. *436 From a judgment in favor of Twentieth Century, which had repossessed the aircraft as legal owner and conditional seller, Atlas appeals. The controversy deve...
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Plaintiff Norman Call was the drywall and painting subcontractor for a low rent housing project located in Yuba City. Defendant Alcan Pacific Company was *445 the prime contractor. On July 25, 1963, Call withdrew his employees from the job. On the same date, July 25 (a Thursday), Alcan sent Call a telegram stating: “Tour repeated failure to prosecute work diligently, including, but...
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Plaintiffs Jack C. Cameron and Barbara D. Cameron, who were the payees of a cheek for $9,832.43, wrote the words “For Deposit Only” on the back of the check and signed their names thereunder. Vivienne D. Sherwood, who was Mr. Cameron’s bookkeeper, took the check to defendant bank and presented it for deposit in the account of Amber Construction Company, a company in which Mr. Cameron had been a...
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On February 5, 1965, Stella Weeks signed up for telephone answering service with RSYP Answering Service operated by Theresa Roy. In a personal talk with Mrs. Roy, Mrs. Weeks implied she was a prostitute and expressed a desire that her business calls be kept confidential, especially from the police. After some discussion about hours for calls and the handling of difficult callers, referred to as tr...
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In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria’s telephone answering service, presumably for business purposes. On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria’s answering service. Mrs. Weeks, in the course of her conversation with La...
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Appellants Marco Panizza and Michael Porbes entered pleas of not guilty to two counts of robbery in violation of Penal Code, section 211. They were jointly tried before a jury. Each was found guilty of two counts of first degree robbery, the jury finding they were armed at the commission of each offense. They were sentenced to state prison, sentences as to each on the two counts to run concurrentl...
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Defendants (Barbers & Beauticians Union, Local 253, and their officers and agents) appeal from an order granting a preliminary injunction enjoining them from picketing plaintiff’s barber shop or engaging in any other concerted interference with his business, and from a subsequent order denying their motion to reconsider or modify the injunction. The underlying issue on this appeal is wheth...
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The plaintiff, who as a guest in an auto- mobile, was injured on April 27, 1964, when the car in which she was sitting was struck by another vehicle co-owned by Eugene Ohman and his wife, Donna Mae Ohman, and driven by her, appeals from a verdict adverse to her claim. There is no suggestion that there was contributory negligence, and the evidence shows that Mrs. Watkins was injured as a result of ...
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The defendant, David Hamilton, admits that he stole a valuable diamond ring from a jewelry store in the City of Tulare, but denies that he had the intention to commit theft when he entered the store, and, therefore, argues that he is not guilty of second degree burglary, the crime of which he was convicted. While, from the ethical standpoint, it is somewhat curious to hear an admission of what wo...
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Three persons, Calvin George Graham, Jr., Charles Pike, and James Edward Casey, were charged with grand theft by reason of the “till-tapping” on December 7, 1965, of the Z Market in Truckee, whereby $460 was stolen, in the form of 23 twenty-dollar bills. Charles Pike, who inserted his hand in the cash register, removed the bills and ran away, changed his original plea to admit guilt. This left th...
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The appellant was convicted by a jury of first degree burglary in that “on or about the 18th day of May, 1966, at and in the County of Siskiyou, State of California [he] did wilfully enter the house occupied by Gloria Phillipe, at 617 French Street, in the City of Yreka, County and State aforesaid, with the intent then and there and therein unlawfully and feloniously to commit theft. ’ ’ ...
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Pursuing a lead given them by the bartender, five Pasadena police officers from the vice bureau entered the Keg ‘N’ Kettle bar at 3 p.m. masquerading as conventioners from General Motors. At 3 :30 p.m. they were approached by Josephine Osuna, who told them she had 22 *530 girls in her employ and could send girls to their motel rooms for $100 each. An assignation was arranged for the same aftern...
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251 Cal.App.2d 534 (1967) NORLEN INVESTMENT CO., INC., Plaintiff and Appellant, v. WALTER MINSKOFF et al., Defendants and Respondents. Civ. No. 29931. California Court of Appeals. Second Dist., Div. Four. June 2, 1967. Albert A. Albeck and Lorin H. Albeck for Plaintiff and Appellant. Leland, Hoffman & Kalik and Sherman A. Silverman for Defendants and Respondents. JEFFERSON, J. On Febru...
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pro tern. * —Appellants, joint venturers, will be hereinafter referred to as Healy. 1 Respondent Dora A. Brewster, executrix of the estate of Gerald E. Brewster, deceased, will be hereinafter referred to as Brewster. 2 The Facts Healy, as general contractor, and Brewster as an earthwork subcontractor, entered into a subcontract whereby Brewster agreed...
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In an information filed in Los Angeles County on December 6, 1963, defendant was charged with forging a check on or about August 31, 1963. Defendant was represented by the public defender. At the time the matter was called for trial the defendant, personally, and all counsel *574waived a jury trial and the cause was submitted on the testimony contained in the transcript of the proceedings had at t...
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This is an appeal from a judgment of conviction of committing a lewd and lascivious act upon the body of a female child. (Pen. Code, § 288.) *576In an information filed in Los Angeles County on April 28, 1965, defendant, with his codefendant Billy Joe Pack, was charged in count I with murdering Glenda Johnson on March 17, 1965; in count II with false imprisonment; and in count III with a violation...
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In 1954 appellant Barbara J. Egan and her then husband, respondent George W. Egan, executed a property settlement agreement disposing of their property and providing for the support and maintenance of Barbara and the two daughters of the marriage: Sally, then 6%, and Patricia, then 2%, years old. The agreement was by reference incorporated into an interlocutory decree of divorce granted Barbara on...
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251 Cal.App.2d 584 (1967) THE PEOPLE, Plaintiff and Appellant, v. CHESTER W. WEGER, Defendant and Respondent. Crim. No. 13090. California Court of Appeals. Second Dist., Div. Two. June 5, 1967. Byron B. Gentry, City Prosecutor, and David Press, Assistant City Prosecutor, for Plaintiff and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Yo...
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pro tern.*-This is a proceeding to prohibit the trial court from committing petitioner to California Youth Authority following the revocation of his probation. The facts are undisputed. In August 1965 the petitioner pleaded guilty to a violation of section 459, Penal Code, and the court determined that he was guilty of second degree burglary. On September 10, 1965, he was sentenced to serve 180 da...
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On this appeal in 1965 we affirmed (235 Cal.App.2d 619 [45 Cal.Rptr. 690]) judgments convicting appellants Fred Propp, Jr., and Roland Wayne Wright of first degree robbery (Pen. Code, § 211), conspiracy to commit robbery (Pen. Code, § 182), possession of a concealable firearm by an ex-eonviet (Pen. Code, § 12021) and additionally convicting appellant Propp of possession of a sawed-off shotgun (Pen...
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This is an appeal from a judgment of conviction of possessing marijuana. In an information filed in Los Angeles on December 7,1965, defendant was charged with possessing marijuana on November 18, 1965. Defendant pleaded not guilty and in a trial with a jury was found guilty as charged. Probation and a motion for a new trial were denied. Defendant was sentenced to the state prison. A timely noti...
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Defendant was charged in count I of an information with armed robbery (Pen. Code, § 211) and in count II with grand theft (Pen. Code, § 487, subd. (3)). The jury returned a verdict of guilt on the armed robbery charge and of acquittal on count II. Defendant moved to reduce the offense to second degree robbery; the motion was denied. He appeals from the judgment. In the evening of January 27, 19...
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The City of Los Angeles appeals from a judgment declaring that Edith D. Cavitt is entitled to receive, pursuant to section 183% of the Los Angeles City Charter, from the city’s Fire and Police Pension Fund, a fixed monthly pension of $310.40 for the remainder of her natural life or until remarriage, and awarding her pension benefits of $2,926.89 including interest, accrued to date of judgment. ...
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Plaintiff wife appeals from those portions of the interlocutory judgment of divorce entered herein which determine the rights of the parties in two items of property. The judgment grants each party a divorce on the ground of the extreme cruelty of the other. Appellant does not challenge this determination. Her notice of appeal is specifically directed and restricted to the following provisions of...
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Defendant was charged by information with violation of section 11530 of the Health and Safety Code (possession of marijuana) a felony, and with having been previously convicted of a crime in violation of section 23105 of the Vehicle Code, a misdemeanor. Defendant pied not guilty, admitted the prior, waived jury, and was found guilty as charged. After examination pursuant to section 6451 of the Pe...
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In this action for refund of 1963-64 taxes upon land and timber paid under protest, plaintiff taxpayer had judgment for $14,407.45. Defendant county appeals. The county assessor determined that as of March 1963 the market value of all old growth timber in the county was $21 per thousand board feet, and that the value of timberland was $20 per acre. He also determined that assessment for ad...
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This is an appeal from a judgment of conviction rendered on a jury verdict finding appellant guilty of attempted armed robbery, first degree (Pen. Code, § 211), possession of a blackjack (Pen. Code, § 12020), and two counts of possession of a concealable firearm by a convicted felon (Pen Code, § 12021). Pour prior convictions were .alleged in the information and admitted by appellant. - • Celes...
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This is an appeal from an order setting aside a default judgment in favor of plaintiffs and against defendants, pursuant to a motion made more than six months after entry of default. The action arose out of a collision between a vehicle in which plaintiffs were passengers, and a truck owned by defendant Petroleum Tank Lines, Inc. and driven by its employee, defendant King. The accident occurred A...
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In a previous opinion, this court reversed defendant’s conviction of voluntary manslaughter in the killing of her husband on the ground that an instruction on involuntary manslaughter should have been given, sua sponte. The Attorney General in his petition for hearing has cited People v. Phillips, 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], and contends that defense counsel invited erro...
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Injured in the course of his employment April 26, 1957, the employee first filed his application for compensation and medical expenses November 19, 1964. Respondent board made an award for permanent partial disability and future medical treatment. Petitioner, the permissibly self-insured employer, seeks annulment of the award. Following his back injury, applicant was sent by his employer to an ...
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This is an appeal from a judgment of conviction of grand theft. In an information filed in Los Angeles April 11, 1966, defendant was charged with feloniously taking a motor vehicle, the property of Allen Auto Leasing Company and William Snow on or about May 12, 1965, in violation of the provisions of section 487, subdivision 3, Penal Code. It was further charged that defendant had six times pre...
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A jury found defendant James Cabrellis and two codefendants guilty of first degree robbery. Cabrellis appeals from the judgment. On the afternoon of February 23, 1966, one Dalton Lyons was driving the three defendants in his ear. One of the defendants suggested robbing Cliff’s Market, an establishment in Del Paso Heights, an area on the outskirts of Sacramento. Cabrellis and another defendant e...
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Appellant Riehardson-Merrell Inc. 1 appeals from a judgment on a jury's verdict awarding respondent Toole $175,000 general damages and $500,000 punitive damages for injuries suffered as a result of the use of a drug manufactured and marketed by appellant and prescribed for respondent’s use by his physician. The trial court granted *694 appellant’s motion for a new trial ...
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This is an appeal from a judgment of conviction of murder in the second degree. In an information filed in Los Angeles County on January 23, 1963, defendant was charged with murdering Monroe Porter on December 28, 1962. It was further charged that defendant previously had been convicted of robbery in 1949 and had served a term therefor in a state prison. Defendant was arraigned on January 23d, 196...
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Appellant, the mother of a minor child, appeals from an order denying her application for a modification of the child custody provisions of a divorce decree. She and Stewart J. Long were married May 28, 1955; Dawni Long, their child, was bom May 20, 1956. They separated in September 1957, and the father instituted divorce proceedings against the mother in Sacramento County in 1959. The interloc...
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The subject of this appeal is an order discharging an attachment entered by the court at the time of its confirmation of an arbitration award. The chronology of the matter: October 1962—Action on contract filed by building contractors against owners on October 19; October 1962—Writ of attachment secured by plaintiff contractors, and property of defendant owners attached on October 22;...
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251 Cal.App.2d 746 (1967) RAYMOND KENNETH HILL et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CHRISTMAS PARR, Real Party in Interest. Civ. No. 31449. California Court of Appeals. Second Dist., Div. Two. June 13, 1967. Chase, Rotchford, Drukker, Bogust & Tucker and Vincent Fish for Petitioners. No appearance for Respondent. Behymer, Hoffman & Hunt and R...
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Defendant Walter Louis Sheets was convicted by a jury May 16, 1966, of the crime of first degree robbery. In addition to an appeal, defendant has submitted a writ of error coram vobis petition to this court. A series of arguments are made, the principal one of which is that certain physical evidence was improperly admitted in evidence over objection, to wit: a revolver, ammunition and a stock...
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Plaintiffs appeal from an adverse judgment in an action to recover a balance due for a number of deliveries of hay. The complaint alleges two common count causes of action, an open book account and an account stated. Plaintiffs delivered hay to a dairy farm operated by defendants Jake and Lorena Verboon. A. Morice DeLong, originally named as a defendant, promised to pay plaintiffs for hay deliv...
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—Petitioner State Compensation Insurance Fund, insurer of applicant’s employer, County of San Bernardino, seeks review and reversal of the board’s decision after reconsideration. The principal question in the case relates to the applicability of the prohibition against apportionment contained in Labor Code, section 3212.5. The applicant, Leon J. Schmidt, took a civil service examination for a posi...
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The appeal is by plaintiff Walter J. Schulz from a judgment in favor of both defendants after a court trial. The complaint filed was in two counts. One was against defendant Wulfing. It appears that both plaintiff and defendant Wulfing are licensed real estate brokers and the first count of the complaint is based upon an alleged contract between the two to share a commission upon the sale of ce...
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The present ease comes before us in the form of two attempted appeals from orders of the superior court, denying requests for relief from assertedly void orders theretofore entered. By stipulation, we treat all of the documents filed herein in both appeals as a petition for a writ of habeas corpus 1 and, for the reasons hereinafter stated, grant relief. Defendant was charged in two counts wit...
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Plaintiff minor, then 12% years of age, sustained cuts and other personal injuries when she collided with a closed glass door while making her exit from a laundromat open to the general public and operated by defendant Bdelson. Two years prior to the incident, he had rented the premises from defendant Goldsmith. Negligence in the maintenance of the door was alleged, and damages demanded. A jury re...
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Defendant was charged with four counts of violation of section 288, Penal Code, and two counts of violation of section 288a, Penal Code. The cause was heard by the court sitting without a jury. Defendant was found guilty of committing a lewd and lascivious act upon the body of Stephanie Kresho (§ 288, Pen. Code [count I]) and an act of oral copulation with her (§ 288a, Pen. Code [count II]) ; he ...
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The apparently unending story of this case is truly a remarkable one. It was on a night almost eight years ago that the Pinkelstein Supply Corporation was robbed of $3,866 by a man armed with a deadly weapon. On Septem *799 her 3, 1959, an information was filed charging appellant Gerald Glen Boyden with this crime and also with two prior felony convictions. Boyden at first denied, but later a...
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This action for unfair competition was tried before the court sitting without a jury, resulting in an award of damages in favor of plaintiff and against certain defendants. The latter are appealing from the judgment. Plaintiff filed a cross-appeal from the judgment insofar as *807 it denied an injunction, but in its brief plaintiff asks that that appeal be dismissed. Ba...
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This litigation relates to the domestic economy of a divorced couple. The appellant Nancy Joan Abbott [Brooks], and the respondent, Mark Oliver Abbott, intermarried in Bakersfield, on August 2, 1952. She secured employment while he was studying as a medical student and later working as an intern in a Manitoba hospital where he earned $142 per month. Although they had one child, they came to the...
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Each plaintiff was employed more than 20 years in the fire or police department of the City of Los Angeles, and retired under the provisions of section 181 of the city charter on a fixed monthly pension. Plaintiffs dispute the city’s computation of their pensions, claiming the city has *820misinterpreted section 181 in figuring amounts due them as pensioners. Section 181 provides that a retired me...
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Appellant Wilkins, Stanton, and Miller were charged by information with armed robbery, in violation of Penal Code, section 211, and appellant was further charged with a prior felony conviction for robbery in Missouri in 1954. At the preliminary hearing on August 2, appellant and Stanton were represented by the same deputy public defender, and Miller by other counsel. When arraigned in supe...
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On June 22, 1965, appellant was charged by-information with possession of heroin (violation of Health & Saf. Code, § 11500). Three prior felony convictions involving-marijuana and heroin were also charged. Appellant waived jury trial. He was found guilty. The first two priors were stricken; the court found the third prior, illegal importation of heroin, to be true and sentenced appellant to state ...
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Defendant was convicted in a non jury trial of possession by an alien of a concealable firearm (Pen. Code, § 12021) and of possession of a switchblade' knife (Pen. Code, *837 § 653k). He appeals from the judgment imposing a fine of $25 for violation of Penal Code, section 12021, and a fine of $30 for the other violation. Facts In Evidence Defendant, on May 10, 1966, had resided and worked i...
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Defendant and one Clark were charged with three counts of armed robbery; the information also alleged seven prior felony convictions. Clark pleaded guilty to the armed robbery charged in count I; defendant was convicted by a jury on counts I and III, and acquitted of count II. Further, the jury found that at the time of the robberies, *851 defendant was armed with a deadly weapon—a C02 Plainsma...
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Appellant was charged in two separate in-formations with possession of heroin (violation of Health & Saf. Code, § 11500) (hereafter count I) and possession of heroin for sale (violation of Health & Saf. Code, § 11500.5) (hereafter count II). 1 Two prior felony convictions were also alleged. The charges against appellant were consolidated into a single information in two counts, ...
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This is an action for damages for unfair competition, between two competing distributors of Japanese food products. The gravamen of the complaint is that, in 1959, defendant induced the manufacturer of Ko-Ko brand takuwan to discontinue business with plaintiff and deal with defendant exclusively thereafter. Takuwan is a pickled turnip or radish which is a common item of Japanese food. Prio...
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Defendant was charged, jointly with Michael Anthony Davis, with grand theft, in violation of section 487, subdivision 3 of the Penal Code (count I), and with the unlawful taking of an automobile, in violation of section 10851 of the Vehicle Code (count II). Pursuant to a motion under section 995 of the Penal Code, count I was dismissed. Both defendants pied not guilty to count II. Defendant was t...
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This is an appeal from a denial of a motion made by defendants to satisfy a judgment and further to quash a writ of execution on real property owned by defendants Charles and Marion Knapp. Appellants are four of nineteen defendants and judgment debtors in an action brought by plaintiff Citizens National Bank (now Crocker Citizens National Bank) (hereinafter referred to as the Bank). A prom...
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The defendant was charged by information filed by the District Attorney of Los Angeles County on January 18, 1966, with the crime of violation of section 11500 of the Health and Safety Code (possession of heroin). On January 26, 1966, he was arraigned, at which time he moved to dismiss the information under the provisions of section 995 of the Penal Code. On February 2, 1966, the motion was argued...
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Appellant, plaintiff below, appeals from a judgment of dismissal entered upon the sustaining of demurrers, without leave to amend, to his complaint for libel. The complaint, with regard to the subject of this appeal, alleges that plaintiff is engaged in the publishing, manuf aetur *892 ing, merchandising and distribution business, and that he has built up a reputation for fair dealing, integr...
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Fred Propp, Jr., who in his lifetime has been found guilty of 12 felony offenses, and who has on 7 separate occasions been confined in state prisons, seeks review, by way of habeas corpus, of an adjudication that he is an habitual criminal. In 1963 Propp was convicted by a jury of first degree robbery, conspiracy, possession of a sawed-off shotgun and possession by an ex-eonviet of a firearm. H...
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Appellant A. Urricelqui, an excavation and grading contractor, appeals from a judgment entered against him on a verdict in an indemnity action filed by A. Bernard Muth, Leland E. Muth and Albert R. Muth (hereinafter referred to as Muths), general building contractors. In a prior action Richard and Mary Hackler were awarded judgment against Muths, the general contractors, for damages caused...
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Appellant brought this action to recover $9,000 as the balance alleged to be due from respondents 1 on an agreement of sale of 1,100 shares of stock of Gene-Roger Corporation. This was the entire number of shares which appellant had planned would be issued, and issued to him alone. Appellant represented, in the written agreement of sale with respondents dated December 20, 1962, that ...
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The People appeal from an order granting a new trial and setting aside an information which charged the defendant with possession of marijuana. The case centers around the fact that at the time of defendant’s arrest he had on his person (a) marijuana, possession of which is a felony (Health & Saf. Code, § 11530) for which he was prosecuted in superior court, and (b) hypnotic drugs, possess...
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Defendant was charged with six counts of receiving stolen goods in violation of section 496 of the Penal Code. After a trial by the court, trial by jury having been duly waived, he was found guilty of the offense charged in count IV and not guilty on the other counts. A motion for new trial was denied; a one-year jail sentence was imposed; the sentence was suspended and defendant was granted proba...
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pro tem. * —This is an appeal from a judgment of the Superior Court of Sacramento County. Plaintiff Howard M. Cobb filed suit against the Southern Pacific Com *931 pany seeking recovery under the Federal Employers Liability Act, 45 United States Code Annotated, section 51 et seq., for personal injuries allegedly sustained on or about July 12, 1962. Cobb later amended his...
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Defendant Michael Hutson, 21 years of age, was convicted January 21, 1966, by a jury of the crime of assault with a deadly weapon. (Pen. Code, § 245.) Defendant raises three contentions on appeal: that his confession was involuntary and therefore erroneously admitted into evidence; that the court committed error by failing to instruct the jury with regard to defendant’s right to counsel and his ri...
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Plaintiffs home Indemnity Company and AAA Leasing Corporation, its insured, have appealed from a judgment denying them any relief in an action in which .they sought a declaration of their rights against Mission, Insurance *945 Company, the alleged insurer of a lessee of a ear from AKA, and against Thomas Clark, the agent who allegedly undertook to secure the latter insur...
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Two informations, one charging defendant with armed robbery at a market on September 21, 1963, and the second charging him in two counts with attempted armed robbery and assault with a deadly weapon at a liquor store on October 11, 1963, having been consolidated for trial, and defendant having been found guilty on the charges in both informations, defendant appeals from the judgment of convicti...
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Appellant Romero, defendant below, appeals from a judgment of guilty of second degree burglary *988 (Pen. Code, § 459). His eodefendant, Jack Robinson, who was also convicted, has not appealed. A grocery storekeeper, closing up around midnight, heard a loud crash of glass. Across the street he saw one person taking watches “off of the display” through a broken pawnshop window, and another per...
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Defendant appeals from the judgment entered following a jury trial that resulted in his conviction of receiving stolen property in violation of Penal Code section 496. His purported appeal from the order denying his motion for new trial must be dismissed. (Pen. Code, § 1237.) Prior convictions of burglary and grand theft were admitted by appellant. Appellant contends that his oral incriminating...
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Manuel Murrietta was convicted of possession of marijuana in violation of Health and Safety Code, section 11530, and committed to the Youth Authority. This appeal is from the judgment. During daylight hours of May 2, 1965, California Highway Patrolman Norman White answered an accident call, and on his arrival at the scene he saw appellant alongside the driver’s side of a ear with a broken winds...
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pro tem. * —All sections cited herein, un less otherwise specified, refer to sections of the Vehicle Code. On September 5, 1964, the appellant, while driving a motor vehicle on a public highway within the Downey Judicial District of the County of Los Angeles, was cited for violating the provisions of sections 22408 (drawing another vehicle in excess of 50 miles an hour), 23123 (keeping opened...
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After a court trial defendant was found guilty of a violation of section 11501 of the Health and Safety Code. On January 17, 1963 criminal proceedings were adjourned under then section 6451 of the Penal Code—now section 3051 of the Welfare and Institutions Code. On May 26, 1965 he was returned from the narcotic rehabilitation center for further criminal proceedings. On July 14, 1965 his motion for...
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Plaintiff tenant sued for damages alleged to have been caused by infestation of the premises let by vermin, to-wit psocids, causing a constructive eviction. The only damage awarded was the return of the deposit for the last month’s rental. Defendant landlord appeals. Warren v. Willett (1940) Civ. A 4824 (unreported decision of this court) has much in common with this case. There the trial court fo...
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250 Cal.App.2d 1 (1967) ALPHA JO SWAIN, Plaintiff and Appellant, v. THOMAS E. SWAIN, Defendant and Respondent. Civ. No. 11328. California Court of Appeals. Third Dist. Apr. 10, 1967. Changaris, Trezza & Ithurburn, Fred B. Ithurburn and Malcolm A. Misuraca [fn. *] for Plaintiff and Appellant. Manwell, Manwell, Ashburn & Hogan and Paul M. Hogan for Defendant and Respondent. PIERCE, P...
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Defendant was tried before a jury on a charge of aggravated assault upon a police officer, a felony denounced by Penal Code section 245, subdivision (b). The jury found him guilty of the lesser offense of simple assault upon a peace officer, punishable as a felony under Penal Code section 241. He appeals from the conviction. *17 Defendant assigns error in the trial court’s rejection of his re...
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Defendant was charged with causing a false message by telegram to be sent to her former husband with intent to deceive, injure or defraud him in violation of Penal Code, section 474; was found guilty by a jury’s verdict; was placed on probation; and appeals, contending the evidence is not sufficient to support a finding she sent the telegram with intent to deceive, injure or defraud. Defendant ...
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Appeal from judgment quieting title to certain real property and enjoining plaintiff from claiming any right, title, or interest in this property, entered in the Superior Court in and for the County of San Bernardino. Prom the facts which may be gleaned from the judgment roll, it appears Jerry C. Hall; his wife, Ida May Hall; and his daughter, Patricia Hall Allen, the three named defendant...
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This appeal presents the issue of the proper construction to be given to the rental provisions of a lease. Plaintiffs, the lessors under the lease, filed a complaint against defendant, the lessee, seeking additional rent they asserted was due. Defendant answered, and brought a cross-complaint for declaratory relief asking that the court declare no additional rent was due. Each side then moved for ...
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On January 11, 1965, Southern Pacific Company as defendant was awarded judgment after five days of trial on the issue of liability in a personal injury case, the trial having been bifurcated. Motion for new trial was made by plaintiff on the grounds of error in law and insufficiency of the evidence. On February 4, 1965, before the hearing of the motion, it *41 came to the attention of the tri...
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Plaintiff, the third mate on the lumber schooner George Olson, sued defendant owner of the vessel for damages for personal injuries resulting from an assault on him by a crew member. The incident occurred on the navigable waters of the United States on board the vessel at the port of Coos Bay, Oregon. The action is predicated on breach of a shipowner’s warranty of seaworthiness of the vessel and n...
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This is an appeal from a judgment of escape from jail in violation of section 4532, subdivision (b), of the Penal Code and an attempted appeal from an order denying a motion for a new trial. In an information filed February 17, 1966, in Los Angeles County, it was charged that on January 4, 1966, defendant escaped from a courtroom lockup while confined therein as a prisoner of the Sheriff of Los An...
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This is an appeal from a judgment of conviction of attempted escape from jail (Pen. Code, §§ 664 and 4532subd. (b).) In an information filed in Los Angeles County on July 2, 1965, defendant was charged with violation of sections 664 and 4532, subdivision (b), of the Penal Code, in that he did on June 6, 1965, attempt to escape from the Los Angeles County main central jail while confined therein as...
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Jesse Jaime Lozano and Manuel Valdez Ruiz appeal from judgments of conviction entered *59 upon jury verdicts of second degree burglary (Pen. Code, §§459, 460). Lozano admitted two earlier felony convictions, Ruiz one. At 3:30 a.m., November 3, 1965, Police Officer Milburn Wilson saw two men (Lozano and Ruiz) put a bag into a trash can near 17th and Broadway Streets in San Diego. The men walke...
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This is an appeal from a judgment for defendant in a wrongful death action brought by the surviving husband and daughter of Elizabeth Ungefug who was fatally injured when struck by an automobile. The accident occurred at approximately 9 p.m. on March 28, 1963, at the intersection of Foothill Boulevard and Palmetto Avenue in Fontana. Foothill has two westbound and two eastbound lanes with a...
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The People appeal from an order setting aside an information (Pen. Code, § 995) and from a certain order suppressing evidence. Following a preliminary hearing commencing November 18, *741964, at which defendants were held to answer a charge of receiving stolen property, the District Attorney of Contra Costa County, on December 4, 1964, filed a two-count information charging that defendants Beasley...
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The question on this appeal is whether an anti-deficiency statute (Code Civ. Proe., § 580b) bars recovery on an unsecured note given as part of the purchase price of land. This section proscribes deficiency judgment after sale of land under a deed of trust given to the vendor to secure payment of the balance of its purchase price. In 1962, defendants agreed to purchase some 140 acres from plain...
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The controversy herein resulting in a declaratory relief action arose out of different constructions given by the parties to certain written agreements dealing with the then proposed motion picture photoplay Irma La Douce. Plaintiff Alperson had negotiated with others for the acquisition of motion picture and television rights to the play; under the first agreement between the parties dated Jun...
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Leon Ray Hays appeals from a judgment of conviction entered upon a jury verdict of second degree burglary (Pen. Code, §§ 459, 460). Hays admitted two earlier felony convictions. At 4:50 a.m., January 10, 1966, Hays was arrested, warned of his constitutional rights required by People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], and searched. He had $173 on him. On January 11,...
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In this action brought by plaintiff against defendant for insurance premiums defendant appeals from the judgment awarding plaintiff $2,259 plus interest on that amount from August 17, 1960. Defendant’s contentions are that plaintiff cannot recover judgment for premiums due on an account assigned to plaintiff after suit was commenced; that one of the trial court’s findings is not supp...
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Defendant Thomas Scahill appeals from an order granting probation entered after jury trial of a violation of section 548 of the Penal Code (disposing of property insured against loss by theft with intent to defraud the insurer). Imposition of sentence was suspended and defendant was placed on probation for a period of three years upon the condition that he serve six months in the county jail and p...
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By an amended information, defendant was charged, in three counts—in count I with burglary, in violation of section 459 of the Penal Code, in count II with child stealing in violation of section 278 of the Penal Code, and in count III with child molestation, in violation of section 288 of the Penal Code. Four prior felony convictions were also charged. Defendant admitted the priors and pled not gu...
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In a jury trial defendants were found guilty of possession of marijuana for sale (Health & Saf. Code, § 11530.5) and of transporting marijuana (Health & Saf. Code, § 11531). They were sentenced on both counts for the terms prescribed by law. Execution of sentence as to the possession for sale charge was ordered stayed pending any appeal and during the service of any sentence the Adult Authority...
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This action was brought by plaintiffs Reginald and Gladys Saunders and Florence Roos in trespass and to quiet title to a strip of land 331.89 feet in length and varying in width from 20 feet at the west to 14.6 feet at the east. The Saunders own the parcel south of and claim the disputed strip. Florence Roos, a prior owner of the land owned by Saunders, is owner of a purchase money trust deed whic...
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Plaintiff appeals from the judgment denying her petition for writ of mandate to compel respondent Richmond School District to reinstate her as a tenured teacher of the fourth grade at Woods Elementary School and to award her back pay. From 1958 through 1963, appellant was employed as a fourth grade teacher at Woods Elementary School. In 1962 she applied for and was granted a sabbatical leave of...
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The appellant (a cross-defendant below) seeks to be relieved of a judgment rendered after a jury verdict on special interrogatories in favor of respondents (defendants and cross-complainants below) who theretofore, upon the granting of a motion for a directed verdict, had been held liable to the plaintiff upon an indemnity agreement. No appeal has been taken from the judgment in favor of the pl...
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This appeal from a declaratory judgment in favor of the insurer as subrogee of the lessor, presents the novel question of whether the insurer is required to provide coverage and defense to the lessee as an “ additional insured ’ ’ under the comprehensive liability policy issued to the lessor, where the lessee has agreed in the lease to hold the lessor harmless from all liability resulting from ...
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Plaintiff appeals from the judgment entered in favor of defendant insurance company following the presentation of plaintiff’s evidence. (Code Civ. Proc., § 631.8.) Both parties agree that said judgment rests entirely upon the trial court’s determination that this action to recover indemnity for property damage sustained as a result of the accidental destruction of plaintiff’s insured airpl...
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This is an appeal from a judgment denying a writ of mandate to appellant under which respondents would have been compelled to rescind their assignment of him to home teaching and to restore him to his former classroom teaching assignment. The basis of the appeal is that such reassignment violated various of appellant’s constitutional rights. Shortly after the commencement of the school yea...
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The defendants are appealing from a summary judgment entered in this action, which is based upon a summary judgment entered in a superior court in Arizona. We are satisfied that the declaration in support of plaintiffs’ motion in this action contained facts entitling them to the California judgment which they obtained, and that the defendants failed to set forth facts showing that they had...
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Rosalie Lopez, a minor, lived in the same household with her parents. She owned an automobile which she insured with defendant. The policy, as required by law (Ins. Code, § 11580.2), provided uninsured motorist coverage. Pedro Lopez, Rosalie’s father, owned an automobile on which he had no insurance. On August 4, 1963, Pedro, while on foot, was struck by another uninsured automobile. He sustained...
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This is a purported appeal by defendant from “the conviction and sentence” in a case involving the posses *216 sion for sale of a dangerous drug, amphetamine sulphate. We shall consider the matter as an appeal from the order granting probation. In an information filed in Los Angeles County on January 3, 1966, defendant was charged with possessing for sale on December 2, 1965, a dangerous drug...
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By information defendant was charged in count I with the offense of issuing a check without sufficient funds in violation of Penal Code section 476, subdivision (a), and in count II defendant was charged with unlawful taking of personal property of Garner Ford, to wit, an automobile, a *223 violation of Penal Code section 487 (grand theft). Additionally, the information alleged a prior convicti...
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Defendant and cross-complainant, Lewis Avenue Parent Teachers’ Association (hereinafter called “the PTA”) appeals from an order dismissing its sixth amended cross-complaint for failure to amend further after a general demurrer was sustained. The cross-complaint sought a declaration that if the PTA is held liable for the personal injuries of plaintiff Barbara Obenshain that liability should be i...
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This action for declaratory relief was brought by Shipyard Workers Educational Association, Inc., hereinafter referred to as the “Association,” and by four individual plaintiffs who are alleged to be “the elected or de facto board of directors and officers” of plaintiff Association. The Attorney General of the State of California was named as the sole defendant. As a more or less incidental item o...
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In 1962 the Murrays purchased property in Santa Barbara County substantially described as: Lot 12 of Block 15, according to survey and plan filed in the office of the county recorder on April 17, 1888, in Book 561 of Miscellaneous Records. According to the original survey, lot 12 was a corner lot bounded by Orange Avenue on the west and by Rutherford Street on the south. The Murrays secured a t...
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Elster’s, the seller of restaurant equipment, sought to recover in rounded figures $13,000 from El Bodrero, the buyer, on a defaulted conditional sales contract. El Bodrero cross-complained for $2,500, contending that on repossession and resale of the equipment Elster’s had realized a surplus above the amount of the debt El Bodrero owed under its contract. Judgment went for El Bodrero for $2,500 ...
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On June 21, 1965, Joseph Correia Martin was charged by amended information with two counts of robbery, in violation of Penal Code, section 211 and four counts of kidnaping for the purpose of robbery, in violation of Penal Code, section 209. The information also alleged 11 prior felony convictions for breaking and entering, larceny, robbery *265 and burglary, forgery, and fraudulent possession o...
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This is an action to recover a brokerage commission. Judgment was rendered for defendant. Plaintiff has appealed. *271The complaint contains three causes of action. The first cause of action sought to recover from the defendant, Kry Corporation, a broker’s commission of $5,000 growing out of a purported authorization to plaintiff by the president of said corporation to sell a car wash business it ...
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Defendant appeals from a judgment in favor of plaintiff quieting title to a vessel and denying him relief on a cross-complaint. Plaintiff's title to the vessel is premised upon a sale foreclosing a possessory lien for storage charges. Defendant, as owner of the vessel, caused it to be stored in a slip at plaintiff’s place of business in San Diego. While the vessel was in storage defendant sold it,...
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Integrated, Inc., general contractor for the construction of a state plant quarantine station at Termo, California, subcontracted the electrical work to Alee Fergusson Electrical Contractor. Following commencement of construction a dispute arose over performance and progress payments. Fergusson gave written notice of rescission and refused to proceed unless Integrated agreed to certain terms an...
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The complaint in this action was filed February 21, 1962. An amended complaint was filed June 1, 1962, followed on January 17, 1963, by an amendment to the complaint. Over two years later, more than three years after the action was commenced, defendant Vonett Sales Company filed a notice of motion to dismiss for failure to bring the case to trial. It was opposed, partly on the plea that to grant ...
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The plaintiffs have given notice that they appealed from these three matters: (1) the order of October 8,1965, granting the motion of defendant Meyer Zeiler to dismiss the complaint and enter a summary judgment; *302 (2) the order of summary judgment entered October 18 ; and (3) the order of November 8, denying plaintiffs’ motion that the court reconsider its ruling made October 8....
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Strong appeals from an order denying his application for attorney’s fees for his representing All-Coverage Insurance Exchange Automobile and Fire (“Exchange”) and its attorney-in-fact, All-Coverage Underwriters, Ine. (“Underwriters”), in their efforts to terminate the Insurance Commissioner’s conservatorship of both organizations, contending that the trial court did not give him a “full hearing...
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Defendant Hunt appeals from a conviction of violating section 12021 of the Penal Code (former felon’s possession of eoncealable weapon) upon an information charging him with that offense and setting forth his alleged prior felony convictions. Hunt pleaded not guilty, denied the prior felonies 1 and waived jury trial. He was found guilty. His motion for a new trial was denied, and he ...
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A demurrer was sustained without leave to amend to plaintiff’s complaint against defendant. Ground of demurrer was that the complaint showed on its face that the action was barred by the statute of limitations. The appeal is from the judgment following the court order mentioned. We will affirm the judgment. The complaint alleged, in the part here material, that on August 22, 1963, in a div...
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The Crestline-Lake Arrowhead Water Agency is a public entity created by a special act of the Legislature (hereinafter referred to as the “Act”) 1 and activated by a vote of the qualified electors. At a bond election held on June 15, 1965, the voters authorized the agency to issue general obligation bonds totalling seven and one-half *322 million dollars. Petitioners, who...
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The plaintiff Judy Somps appeals from certain portions of an interlocutory judgment of divorce which awards the stock in MacKay & Somps, a corporation, and other assets, to defendant George Somps as his separate property. Judy Somps (hereinafter referred to as wife) and George Somps (hereinafter referred to as husband) were married on April 28, 1954, and lived together until April of 1963,...
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Appellants contend that the transaction which led to judgment against them was usurious. In this action plaintiffs and defendants ask determination of their rights and duties. Facts In 1961, the Thomassens, appellants, having much confidence in Hoyt Kelley, who was then their son-in Jaw, and who as a real estate speculator had made good deals for them, “left everything right in his hands,” ...
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We granted a rehearing in this case for the sole purpose of considering the effect of Garrity v. New Jersey, 385 U.S. 493 [17 L.Ed.2d 562, 87 S.Ct. 616] and Spevack v. Klein, 385 U.S. 511 [17 L.Ed.2d 574, 87 S.Ct. 625] on our judgments sustaining the convictions of appellants. Among the counts of which appellant Genser was convicted, were two cha...
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On August 14, 1965, at approximately 3 p.m., two officers of the Los Angeles Police Department were *369 driving north on Central Avenue in Watts. They observed appellant standing inside the Lucky Ace Liquor store holding several bottles of liquor. The front window of the store was broken. The officers parked in front of the store. The door to the store was locked. Appellant was ordered out. ...
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Appellant, charged with violation of section 11530 of the Health and Safety Code, a felony, and three priors, admitted the priors and pleaded not guilty. A mistrial was declared on December 1,1965. On January 10, 1966, a second jury trial was commenced, appellant was found guilty as charged and sentenced to state prison, sentence to run concurrently with any other sentence required to be serv...
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Defendant was charged by information filed by the District Attorney of Los Angeles County with the crime of violation of section 11500.5 of the Health and Safety Code (possession for sale of heroin), with a prior conviction of assault with a deadly weapon, a felony, and with having served a term of imprisonment therefor in the state prison. His motion for dismissal of the information under the ...
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Defendant Loignon appeals “from the order denying motion for new trial and from the judgment. ’ ’ Loignon was charged with violating section 288a of the Penal Code, oral copulation with Terry, a 15-year-old boy. Loignon pleaded not guilty, a jury trial was waived and the cause by stipulation was submitted to the court upon the testimony contained in the transcript of the preliminary hearin...
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This is an appeal by the State of California from an adverse judgment rendered on a jury verdict in favor of plaintiff general contractor’s claim for additional work done in the remodeling of Chico State College (hereafter. College) . The State argues that there is no evidence to. support *394 the jury’s implied finding that the state architect committed gross error in rejecting pl...
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Plaintiff commenced two actions for damages for personal injuries. One, against the City and County of San Francisco, arises from a streetcar-auto accident in 1961. The other, against defendant Walter Booker, involves a wholly separate two-automobile collision in 1962, approximately nine months after the streetcar accident. Upon plaintiff’s motion pursuant to section 1048, Code of Civil Procedu...
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By indictment Raymond Escobedo was charged with the crime of murder in violation of section 187 of the Penal Code. In a jury trial he was found guilty of manslaughter in violation of section 192, subdivision 1, of the Penal Code. He was sentenced to state prison. He appeals from the judgment. His notice of appeal also states that he appeals from the verdict, the order denying his motion for a new...
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Defendant was charged with and convicted of a violation of Penal Code section 12021 (possession of a concealed weapon by a convicted felon), and was sentenced to the state prison for the term prescribed by law. He appeals from the final judgment. The sole issue is the legality or illegality of the search of defendant’s personal property, a small kit bag. This search produced the gun which was t...
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Two California National Guard officers (petitioners) retired after 20 years of military service, claimed monthly retirement benefits to be described, were allowed benefits in a lesser amount by respondent Controller, referred their claims to the Board of Control. That board sustained their larger claims but the Controller remained adamant. This proceeding for a writ of mandate in the superior c...
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Prior to September 30, 1964, respondent Stewart was a permanent civil service employee of the State of California, holding the position of Parking Facilities Analyst in the Department of General Services. On September 8, 1964, the Director of General Services notified Stewart by letter that he was being laid off as of September 30, 1964, pursuant to the provisions of section 19530 of the Governme...
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Plaintiff appeals from a judgment dismissing his complaint as to defendants, which judgment was entered upon the sustaining without leave to amend of a demurrer to plaintiff’s complaint. The sole issue presented is whether plaintiff’s complaint states a cause of action against the demurring defendants. We hold that it does. On September 1, 1965 plaintiff filed his “Complaint for Damages (Fraud)...
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— In an information the defendant was charged in count 1 with murder of Leon Williams, and in count 2 with assault with a deadly weapon on William Johnson. In a jury trial he was convicted of manslaughter on count 1, and of assault with a deadly weapon on count 2. The judgment was reversed on the ground that the jury had not been instructed properly regarding justifiable homicide. (People v. Jenki...
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On December 30, 1964, appellant was charged by information with murder in violation of section 187 of the Penal Code. Two prior convictions for felonies were also alleged. On January 8, 1965, appellant pleaded “Not Guilty” and denied the priors. On May 20, 1965, appellant entered the additional plea of “Not Guilty by Reason of Insanity” (Pen. Code, § 1016) and two psychiatrists were appointed by t...
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Defendant was charged with possession of heroin, in violation of section 11500 of the Health and Safety Code. One prior felony conviction was alleged. He pled not guilty and denied the prior. After a trial by the court (trial by jury having been duly waived) he was found guilty and the prior conviction was found to be true. Proceedings were suspended and proceedings were commenced under the Nar...
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Plaintiff appeals from the judgment of dismissal entered after defendants’ demurrer to her fourth amended complaint had been sustained without leave to amend. At the hearing on this demurrer counsel for plaintiff indicated that there were no additional facts that he desired to plead. Both parties agree that the sole question presented by this appeal is whether or not the trial court properly de...
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Truman Reeves, his wife Dorothy, Ernest Stoelting, John Holberton, Earl Lange, Robert Lange, Charles Williams and Merrill Finley were accused by information of conspiracy with each other and “with other persons, names unknown” to violate section 484 of the Penal Code (theft) in violation of section 182 of the Penal Code. *491 The court granted a motion of Holberton for dismissal under section...
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Petition for peremptory writ of mandate to compel respondent Controller 1 of the State of California to pay petitioner, William G. Bonelli, the pension allowances accruing to him since February 1959, with interest, allowances hereafter accruing, and to pay petitioners the sum of $15,000 deposited by them with the Franchise Tax Board of the State of California, with interest. Questions Present...
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Defendant Marvin Samuels was charged by indictment with two counts of conspiracy to violate Penal Code, section 311.2 (preparing and distributing obscene matter) ; two counts of assault by means of force likely to cause great bodily injury (Pen. Code, § 245) ; and a final count of sodomy (Pen. Code, § 286). Defendant pleaded not guilty to all charges. The jury acquitted defendant of sodomy but ...
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Defendant appeals following jury conviction of second degree burglary (Pen. Code §§ 459, 460) and five counts of forgery (Pen. Code § 470). His main contention is that certain evidence used to convict him was obtained by an illegal search and that, without such evidence, the testimony of his accomplice was not sufficiently corroborated as required by Penal Code section 1111. 1 Seymore, the ac...
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Plaintiffs 1 seek to recover their investment in a stock promotion. Judgment was rendered in favor of Maner and Tepper, but in favor of defendants and against Bennett. Defendants made a motion for a new trial which was granted as to defendant Mydland but denied as to Jones and Lindsey. Maner and Tepper have appealed from the order granting Mydland a new trial, and Mydland has cross-a...
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Utica Mutual Insurance Company (“Utica”) filed a complaint against Monarch Insurance Company of Ohio (“Monarch”), George Woelke, George Woelke, Jr., and Angus McDonald, seeking a judgment declaring that Monarch’s policy of insurance upon Woelke’s Ford automobile, which Utica also insured, was in effect on July 8, 1962, the date of an accident out of which grew a pending action by McDonald again...
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Defendants Billy Calvin Griffin, Beatrice Nelson and Willie Bobinson, each were found guilty of a violation of section 11530 (possession of marijuana) of the Health and Safety Code. They appeal claiming: 1. That the search and seizure which led to the discovery of the narcotic was illegal; and 2. That the evidence was insufficient to support the convictions. The matter was tried to the cour...
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The parents of William, born July 11, 1946, appeal from a judgment in favor of the County of San Diego (County) for the cost of care, support and maintenance of William while a ward of the juvenile court; and while awaiting hearing of a petition for wardship. The judgment is based upon findings, one of which is that the parents (Shaieb) have sufficient moneys and assets to enable them to reimburse...
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Leon C. High, also known as Leon High, executed his last will and testament on May 16, 1964, which instrument provided, inter alia, for the establishment of a testamentary trust, the salient provisions of which may be summarized in the following manner: the residue of the testator’s estate, after payment of all debts, costs of administration, fees, inheritance taxes, and certain specific bequests,...
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Both sides appeal from portions of a judgment rendered in a mandamus proceeding brought to test the validity of two conditions attached to a land use permit. The Procedural Background Plaintiffs desire to build an auto service station upon their undeveloped property abutting Peralta Boulevard in the City of Fremont. The property lies within a “neighborhood commercial” zone in whic...
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This is an appeal from an order entered on the petition for instructions of respondent Bank of America National Trust and Savings Association as trustee under the will of Judge Allan B. Campbell. Judge Campbell made provision in his will for his three children, Jean Campbell, Kathleen Campbell Halas, and Allan B. Campbell, Jr., and for Kathleen’s son, Jon Halas. Kathleen died before the trusts cre...
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Defendant was charged with possession of heroin (§ 11500, Health & Saf. Code), and two prior state felony narcotic convictions and one in the federal court. The People’s case was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing; no defense was offered. The trial judge found defendant guilty as charged and the allegation of the first prior to be tr...
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Defendant, arraigned under the names of Ala Lalabad Alalakahn Zodiac XV and Zoraster, was convicted by a jury of first degree robbery (Pen. Code, § 211 [count I]) and two counts of kidnaping for the purpose of robbery (Pen. Code, § 209 [counts II, III]); the jury also found that at the *593time he had been armed with a deadly weapon, a pistol. He appeals from the judgment. On June 11, 1965, around...
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Appellant is attempting to appeal from an order of the superior court denying his motion to vacate the judgment. The record shows that the judgment was affirmed by the Supreme Court of California, People v. Langdon, 52 Cal.2d 425 [341 P.2d 303], The superior court was without jurisdiction. (Pen. Code, § 1265.) The order of the superior court is not appealable, and the record on appeal should not h...
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This is an action to recover damages for the wrongful discharge of plaintiffs under their respective employment contracts with defendant. Holtzendorff was awarded $122,661 and Miss Rosien $85,538. Defendant has appealed. Under its cross-complaint against Holtzendorff, defendant Housing Authority sought to recover money that it had paid to Holtzendorff to reimburse him for attorney fees and...
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The People appeal from an order dated March 15, 1966, granting respondent Kessler’s motion to set aside and to dismiss the information against him pursuant to section 995 of the Penal Code. Kessler and his co-defendants were charged with violating sections 11911 (unlawful possession for sale of restricted dangerous drug) and 11912 (unlawful sale of restricted dangerous drug) of the Health and Safe...
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An indictment was filed charging appellant with the murder of Julius Micheletti. Appellant entered pleas of not guilty and not guilty by reason of insanity. A jury found appellant guilty of murder in the second degree and determined that he was sane at the time the offense was committed. Appellant now appeals from the judgment entered. On appeal two principal contentions of appellant are t...
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Defendants Ralph F. and Emily J. Campbell (sellers) and Tom Snook (buyer) appeal from a judgment in favor of plaintiffs Tom Duffy and K/R Sales, Inc., (brokers) for damages resulting from defendants’ breach of a contract to pay a real estate transaction commission. Appellants Campbell (the sellers) owned property at 2308 Bates Avenue, Concord. They listed their property for sale with respo...
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Charged with possession of marijuana (Health & Saf. Code, § 11530), defendants waived jury trial. The court found both guilty, and admitted them to probation on condition they serve 6 months in county jail. Both defendants appeal. Acting under a search warrant, officers entered defendant Kesey’s residence, located in a wooded area in La Honda. Many visitors were present. One officer entere...
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Beba and Ricky J. Piccirilli applied to the Department of Alcoholic Beverage Control for an off-sale liquor license. The Long Beach Unified School District filed a protest against issuance of the license. After a hearing, the department determined that the proposed operation of the applicants would be within the immediate vicinity of a school, and “the issuance of the license would be cont...
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Defendant was charged with the murder of his estranged wife. He entered pleas of not guilty and not guilty by reason of insanity. During the course of the trial in which he was competently represented by counsel of his own choice, he withdrew the latter plea. After a nonjury trial, the court found him guilty of murder of the first degree and decided that the penalty should be life imprisonment. Ju...
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The problem is whether damage liability may be imposed upon an automobile service station operator for selling gasoline to a recognizably intoxicated motorist who then injures a third person. The minor plaintiff was injured and his father, mother, sister and brother were killed in a collision with an automobile driven by Herschel Baker, a defendant. In the second count of his complaint pla...
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Petitioner applies for a writ of prohibition to restrain prosecution under Health and Safety Code, section 11530 (possession of marijuana, a felony), contending the marijuana evidence upon which he was bound over for trial was found incident to an unlawful search of his automobile. On December 3, 1966, a dark night, between 8 :15 p.m. and 10:30 p.m., two deputy sheriffs observed an unlight...
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This action arises as a result of a warranty contained in a written contract in which the appellant purchased from respondent all of the issued and outstanding *703 stock of the National Neon Corporation, consisting of 15,000 shares. On January 25, 1962, when the sale was made, the corporation was engaged in the business of electrical contracting, and respondent, as its president, ...
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Defendant appeals from a judgment of conviction, after jury trial, of violation of section 12021 of the Penal Code, possession of a eoneealahle weapon by a convicted felon. The sole question presented in this appeal is whether the weapon which was admitted into evidence over defendant’s objection, and which was the basis for his conviction, was the product of an illegal search. The pertinent fact...
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This proceeding arises out of an action entitled Pacific Indemnity Group y. Universal Underwriters Insurance Company, et al., for declaratory relief and money damages now pending in the respondent court. The question before us is whether that court abused its discretion in striking from the separate pretrial statement of Universal a certain issue tendered by Universal and its contention relat...
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Two questions have to be answered on this appeal taken by plaintiff from a judgment “that plaintiff take nothing.” That which plaintiff tried to take was a judgment for the unpaid balance of two conditional sales contracts, in each of which it was recited that there was a cash down payment to seller of $700, whereas the “cash” *734consisted of three checks that had been given in the transaction by...
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After a trial by jury, defendant was found guilty on all five counts of an information charging him as follows: count I—kidnaping for the purpose of robbery, in violation of section 209, Penal Code; count II—robbery, in violation of section 211 of the Penal Code; count III—rape, in violation of section 261, subdivision 3 of the Penal Code; count IV—grand theft, in violation of *738 section 487,...
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This is an appeal from an order granting respondent’s motion for a preliminary injunction enjoining appellants from continuing an arbitration filed by appellant John Ruiz, one of the heirs at law of decedent John Ruiz, to recover damages pursuant to an uninsured motorist’s endorsement in a policy issued by respondent. Farmers Insurance Exchange (“Farmers”) issued an automobile liability po...
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Plaintiffs appeal from a judgment of nonsuit in their action for damages predicated on the theory of abuse of process. Defendant Bakersfield Savings & Loan Association financed the purchase of a residence for plaintiffs, who, in turn, executed a promissory note for the principal sum of $20,200 with interest at the rate of 6.6 percent per annum, payable in monthly installments on...
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A jury having awarded plaintiff $7,000 damages for injuries sustained by him in an accident which occurred as he was alighting from defendant’s automobile, defendant appeals from the judgment entered upon that verdict and from the trial court’s order denying his motion for judgment notwithstanding the verdict.1 Defendant’s contentions on appeal are two-fold, first that the trial court erred in den...
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This is an appeal by plaintiff from orders (1) denying her application for leave to file a late claim against defendant City and County of San Francisco, and (2) denying her motion to set aside the prior order. Plaintiff was injured on May 16, 1963, while riding as a passenger on a bus owned and operated by the city; by letter of May 22,1963, her attorneys notified the city of her accident and ...
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National Automobile and Casualty Company (hereinafter sometimes referred to as National) appeals from a judgment rendered by the trial court in favor of Mart, Inc. (hereinafter sometimes referred to as Mart) in an action for damages on an attachment bond. Mart is a closely held corporation which operates a discount appliance store under the supervision of its principal officer and stockhol...
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Defendant was convicted of four counts of selling heroin (Health & Saf. Code, § 11501), and allegations that he suffered two prior convictions were found to be true; he appeals from the judgment. On August 20, 1965, undercover narcotics Officer Rudy Limas and an informant named Joe met defendant at Third and Hill Streets. Joe said to defendant, “I have been looking for you”; defendant answ...
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This is an appeal from a judgment of conviction of violating the provisions of the Dangerous Weapons’ Control Law (Pen. Code, § 12021) and of receiving stolen property (Pen. Code, § 496). In an amended information filed in Los Angeles County on or about September 27, 1965, defendant was charged in count I with having in his possession on or about August 13, 1965, two,.38 caliber revolvers, capable...
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Defendant, a prostitute, was convicted of grand theft. The alleged victim was a client whom we shall call Norton. Trial was to the court. The only question of substance involved in this appeal is the propriety of the admission of certain expert testimony. These are the facts: In the afternoon of January 11, 1965, Norton drove down Western Avenue, alone in his automobile. He saw defendant at a s...
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Defendant and appellant Willie Keesee and one McLeod were jointly charged and convicted of robbing-one Walter Raymond of $1.26. Keesee alone has appealed. Trial was to a jury. The facts of the case may be briefly summarized as follows: On October 20, 1965, at 9:30 p.m. Raymond was standing- in front of a hotel on Wall Street. He was talking to some people. Keesee and McLeod approached the group...
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The appeal is by defendant Louie Queirolo from a judgment following a jury verdict for plaintiff Jerome LeMire in the sum of $12,000 against said Queirolo as an individual and against defendants Walter Everett Lyman and Caruso Produce Express for injuries incurred in a multivehicle accident on January 3,1965. 1 *801 The principal question on appeal is sufficiency of the ev...
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This appeal is from a judgment for money damages, general and punitive, in an action for fraud and deceit arising out of an agreement for the sale of cafe and bar businesses, on-sale liquor license, and the real property upon which the businesses were conducted. The judgment also ordered appellants to deliver up for cancellation certain instruments executed in connection with the transaction. T...
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Appellants, James Perryman and Willie Perryman, together with Arthur Mayfield, John D. Crumpton and John Cooper, were charged by indictment with burglarizing the Collins Electric Company in Sacramento. All defendants were charged with being armed with “deadly weapons, to wit, a 25-Calibre Automatic and a 38 S. and W. Revolver. ' ’ The Perrymans were tried separately, and convicted by a jury o...
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South Coast Company (hereinafter called South Coast) seeks to obtain a refund of 1953 income taxes which it contends were paid erroneously under the Bank and Corporation Tax Law of the State of California. South Coast appeals a judgment in favor of the Franchise Tax Board of the State of California after the denial of its claim for refund was confirmed by the State Board of Equalization. The findi...
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This is an appeal from a judgment of conviction of involuntary manslaughter. In an information filed in Los Angeles County on December 6, 1965, defendant was charged with murdering George Turner on November 8, 1965, in violation of section 187 of the Penal Code. It was further charged that defendant previously, on May 25, 1954, had been convicted of burglary and had served a term in prison ther...
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The action is for damages claimed to have been sustained as a result of the alleged failure to honor an employee’s option to buy 4,000 shares of common stock of defendant Technicolor, Inc., plaintiff’s employer. Several corporations are named as defendants; they will be referred to as Technicolor or defendant. At the close of plaintiff’s evidence the court granted a motion of defendant for judgmen...
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This is an appeal from a judgment of conviction of possession of heroin. In an indictment filed August 18, 1965, defendant was charged with the possession for sale of heroin on February 10, 1965- (Health & Saf. Code, § 11500.5). It was further charged that twice previously he had been convicted of violating the provisions of Health and Safety Code, section 11500, namely, on April 3, 1953, ...
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Carl Edwin Jackson, who was charged and found guilty of burglary in violation of Penal Code, section 459, appeals his conviction. Jackson contends that he was denied due process of law on the following grounds: the public defender represented him against his wishes; his counsel was not present during one recorded conversation between Jackson, the trial judge, the prosecuting attorney and counsel ...
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Appellant brought this action for the wrongful death of her son against the Board of Education of the City of Los Angeles, the City of Los Angeles, and several individuals. She appeals from a summary judgment entered in favor of respondent Board of Education of the City of Los Angeles. The sole question presented on this appeal is whether the claim which appellant presented to the City of ...
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This is an appeal from an order denying an alternative writ of prohibition. Petitioner was charged with violating section 311.2 of the Penal Code.1 The complaint charged, in pertinent part, that defendant “did wilfully, unlawfully and knowingly in this state prepare and exhibit and offer to exhibit obscene matter.” The offense was charged in the language of the statute. The obscene matter was not ...
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Respondent brought this action -against appellant to recover damages for personal injuries. Appellant *875 admitted its liability, and thus the sole issue presented in the trial court was the amount of respondent’s damages. The jury fixed respondent’s damages at $650,000. Appellant appeals from the judgment entered upon the verdict. On December 20, 1963, respondent, a eondueto...
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Defendants were charged in several counts with grand theft, with violations of section 476a of the Penal Code, and with conspiracy to commit grand theft. After a jury trial, defendant William Phillips was found guilty on all counts, defendant Janet Phillips was found guilty on some of the counts and not guilty as to others. William Phillips was sentenced to state prison; Janet Phillips was granted...
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Plaintiffs, husband and wife, seek specific performance of an agreement to purchase real estate, contending that they had exercised their option to buy. The trial court held that they had not effectively exercised their option and that the defendant owners were not bound to convey. Plaintiffs appeal from a judgment denying specific performance. Plaintiffs bought defendants’ bar and restaur...
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Petitioner, charged with a violation of section 11500.5 of the Health and Safety Code (possession of a narcotic, other than marijuana, for purpose of sale) and with two prior felonies, waived a jury trial and submitted the cause on the transcript of the preliminary examination. The trial court found petitioner guilty as charged and found one prior felony to be true. The judgment was affirmed on ap...
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Defendant was found guilty of a violation of section 11500.5 of the Health and Safety Code (possession of heroin for sale). Unless the search which led to the discovery of the narcotic was legal, the People had no case. The evidence concerning the legality of the search came from Officer Underhill of the Traffic Enforcement Division of the Los Angeles Police Department. On the day in quest...
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Defendant Wood and a codefendant, Whitman, were convicted of burglary in the second degree. Prom the judgment imposing sentence Wood alone appeals. The burglarized premises, a market, were entered on *913 August 8, 1965, through a hole cut in the roof. The roof was covered with paper impregnated with tar, encrusted with fine gravel, which in the area around the hole had received color from pa...
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After trial without a jury appellant, Nolan Ray Renfro, was found guilty of the crime of grand theft in violation of section 484 of the Penal Code. He appeals from the judgment of conviction which was entered thereon. Defendant does not deny the theft for which he stands convicted. In fact, he freely and voluntarily admitted that he was involved in the theft of some telephone wire in El Do...
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Plaintiff, Owen J. Holt, brought this action against defendants, Santa Clara County Sheriff’s Benefit Association (“Association”) and its officers, seeking a determination that the amendment to the Association’s constitution and by-laws adopted by the general membership of the Association on October 6, 1964, which amendment provided for the dissolution of the Association and the *927 ...
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Defendant has appealed from a judgment sentencing him to state prison following his conviction by a jury of possession of heroin in violation of the provisions of section 11500 of the Health and Safety Code, with an admitted prior conviction on February 10, 1956 of possession of narcotics in the State of Illinois. *936Appellant contends that he was arrested without probable cause, and that the tri...
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Does conviction of escape bar prosecution for burglary, robbery, ear theft and grand theft, all committed more than 48 hours after departure from the prison camp and more than 20 miles away from that camp? That is the question on this appeal. Respondents escaped from the prison camp at Parlin Forks October 18, 1964. On October 19 a complaint was filed charging them with escape. On October 21 the h...
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We are called upon in this ease to determine whether to follow our own decision without opinion in People v. Oliver (1963) CR A 5206 or an unpublished opinion of the Appellate Department of Orange County in People v. Hine (1966) AP-423. Were the Sine ease the only expression on the subject we would not be bound thereby (People v. Cowles (1956) 142 Cal.App.2d Supp. 865 [298 P.2d 732]). For reasons ...
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This is an appeal from a judgment denying the right of plaintiff to foreclose a mechanic’s lien. The undisputed facts show that plaintiff contracted with defendant Gunderson to install the wiring and electrical fixtures in premises at 2835 Morley Drive, Oakland. It was stipulated *Supp. 962that his material and labor was worth $1,186.29. Gunderson defaulted and judgment in that sum was entered aga...
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This is an appeal from a judgment of conviction of murder. In an information filed in Los Angeles County on April 28, 1965, defendant was charged with murdering Louise MeCarroll on April 6, 1965. Defendant pleaded not guilty. The court, pursuant to defendant’s request and section 1871, Code of Civil Procedure, appointed certain doctors to examine defendant and to make a report to the court. Tim...
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This is an appeal from “the judgment and sentence” following a conviction of certain sex offenses. In an information filed on March 11, 1965, defendant was charged in count I with committing a lewd and lascivious act upon the body of Robbin DeDeaux on October 20, 1964, in count III he was charged with the same violation upon the same person on October 21,1964, and in count V with the same viola...
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Defendant appeals from the judgment entered against him following the granting of plaintiff’s motion for summary judgment. The question presented by this appeal is whether or not respondent’s affidavit in support of his motion was sufficient to establish that there was no triable issue of fact. (Code Civ. Proc., § 437c.) Plaintiff’s complaint alleges that on April 17, 1964, the Superior Court, ...
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Plaintiff recovered a judgment against defendant in the amount of $14,775. Defendant has appealed. Plaintiff is an assignee for collection purposes only. She is an employee in the office of Bisgeier, Breslaur & Co., certified public accountants and business managers. Ben Bisgeier was a friend of defendant Marta Fuller and her husband, Samuel Fuller, and from 1948 until February 1962 he and...
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This appeal is brought by plaintiff from an adverse judgment entered upon a jury verdict in her action for damages for personal injuries suffered when she was struck by defendant’s automobile. Plaintiff contends the verdict against her resulted because the jury was not properly instructed on the law applicable to the case. In a pretrial statement the parties agreed that the accident occurred at 10...
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Dr. R. L. Siggers (Real Party in Interest) filed suit in the Superior Court of Orange County (Respondent) on June 26, 1964, against La Mirada Community Hospital, a corporation, and a copartnership doing business under the same name (Petitioners) for breach of contract. The corporation and the individual defendants comprising the copartnership demurred and moved for change of venue to Los Angeles C...
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The plaintiff, Sylvia Buniger, sued her son and daughter-in-law for damages resulting from the negli *51 gent construction and maintenance of stairs between their garage and kitchen proximately resulting in her falling and breaking her thigh bone; the suit was for $35,000. The jury returned a verdict for the plaintiff in the amount of $2,500. As the special damages were $1,976.21, ...
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The juvenile court found this minor to have committed the crime of burglary (Pen. Code, § 459), made him a ward of the court (Welf. & Inst. Code, § 602), and committed him to the Alameda County Senior Boys’ Camp. He appeals. The glass door of a coin shop was broken, the shop entered, and coins valued at some $800 were taken. Police went to the minor’s home to question him about another cha...
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This is an appeal from a judgment denying appellant’s petition under Code of Civil Procedure, section *60 1094.5, for a writ of mandate against respondent compelling it to rescind its revocation of his general secondary teaching credential. In reviewing this action of respondent, in proceedings in administrative mandamus, the trial court exercised its independent judgment on the weight of the...
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This appeal involves three separate law suits (for wrongful death and personal injuries), arising out of the same automobile accident, which were consolidated for trial. Subsequent to the consolidation the defendants Standard Cabinet Works and Howard Whitnah moved for summary judgments and their motions were granted. Accordingly, judgment was entered in favor of the defendants in each consolidated...
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This is an appeal by each of the defendants from a judgment of conviction of robbery in the first degree. In an information filed in Los Angeles County on February 24, 1965, defendants, with Javanee Fields, were charged in count I with robbing Bettie E. Mason on December 31, 1964, of $52.50 in money; it was further charged that at the time of the commission of the offense the defendants were armed...
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On April 7, 1966, by information, the appellant-defendant, Albert Taylor Stenchever, and a codefendant, William Stewart Brown, were charged in count 1 with violating Health and Safety Code section 11531, a felony (to unlawfully sell, furnish, or give away marijuana) ; and in count 2 of the same information, appellant-defendant and codefendant were charged with violating Health and Safety Code sec...
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A jury found defendant guilty of an act of incest with his daughter. He appeals from the judgment. Primary question on appeal is the propriety of evidence of similar sexual activity between the defendant and an older daughter. The prosecution’s case consisted of the testimony of the 16-year-old prosecutrix and her 19-year-old married sister. Each described parallel histories of years of sexual ...
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The defendant, Nick Lopez, was convicted of burglary. He conceded that he entered the home occupied by Rosalie Burres and her husband at 632 Santa Ana Street in Sacramento during the nighttime and without their leave. The only question that remains with respect to the commission of *95 the alleged crime is whether or not the defendant had the intent to commit theft at the time he entered the dw...
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This is an action in quo warranto, brought by the People of the State of California on relation of Mark Tuban and others to have declared void Ordinance No. *106175.586 of the City of Mountain View which approved the annexation of an area of land known as “El Camino 16-A.” The annexation was conducted in 1959-1960 pursuant to the “Annexation of Uninhabited Terrotory Act of 1939.” (Gov. Code, §§ 35...
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An information was filed in the superior court charging respondents Ernest L. and Barbara D. Stephens with violations of Penal Code section 496 (receiving stolen property), Health and Safety Code section 11530 (possession of narcotics—marijuana), and Penal Code section 12021 (possession of a eoncealable weapon by a felon), the last charge being against Ernest only. Respondents moved to dismiss th...
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This is an appeal from a peremptory writ of mandate which, in effect, ordered the defendant to issue to plaintiff a permit to operate and conduct a hospital pharmacy in the Warrack Hospital in Santa Bosa, California. On or about June 29, 1965, Warrack Medical Center Hospital, a corporation (sometimes hereafter referred to as War-rack) filed a petition for a writ of mandate in Los Angeles County re...
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This is an appeal which involves the interpretation of section 654 and other sections of the Business and Professions Code with reference to doctor-owned pharmacies. In a declaratory relief action brought against the California State Board of Medical Examiners, sometimes hereinafter referred to as Board, filed in Los Angeles County on May 18, 1965, Magan Medical Clinic and its nine partner...
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In this suit for declaratory relief and damages Universal Underwriters Insurance Company (Universal), which had issued a comprehensive automobile liability policy to Enoch Chevrolet Company (Enoch), an automobile dealer, was awarded a judgment after trial against Aetna Insurance Company of Hartford, Connecticut (Aetna), upon a garage liability policy issued to Wilson Leasing Company (Wilson). T...
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This is an appeal from an order denying appellant’s petition to compel arbitration and its motion to stay this action between the parties pending such arbitration. The appeal lies. (Code Civ. Proc., §§1294, subd. (a), 1294.2; Berman v. Renart Sportswear Corp., 222 Cal.App.2d 385, 387-388 [35 Cal.Rptr. 218].) In May 1962, appellant, a general contractor, entered into a written contract wit...
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On February 27, 1961, an accident occurred resulting in the death of Louis J. Vestesen, and injury to Vasser J. Allen, who at that time were engaged in the course of their employment for Halbert Brothers, Inc. Actions were brought against defendant Maier Brewing Company for damages for wrongful death of Vestesen and damages for personal injury to Allen. Enterprise Insurance Company, as Halbert’s w...
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Defendant was found guilty of possession of marijuana in violation of Health and Safety Code section 11530. He is appealing from the judgment. The evidence shows that on January 15, 1965, deputy sheriffs went to the residence at 3550% Hunter Avenue, Los Angeles, with a warrant directing them to search the premises. Defendant, who was in the home, was served with the warrant, and he admitted the...
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This is an appeal from a deficiency judgment which followed the use of the power of sale under a deed of trust. Defendant executed a promissory note in amount $25,000 as partial consideration for the purchase of a motel in Redding. A deed of trust on a lot at Lake Tahoe was given as security. Because the security was on land other than that being bought, it is not to be deemed purchase money se...
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Dorothy K. Silverman, widow of Fred R. Silverman, as permitted by Probate Code, section 680, filed for a family allowance and pursuant thereto, an order was made directing Union Bank, executor of the estate of Fred, to pay her a family allowance of $1,000 per month,1 commenc*182ing as of August 18, 1963, and continuing to distribution, but in no event longer than 19 months. On May 15, June 18 and ...
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This is a derivative suit by minority stockholders challenging the propriety of the sale of certain assets of Maier Brewing Company, a corporation, hereinafter to be referred to as Maier, to S & P Company, a corporation, hereinafter to be referred to as S & P. 1 The case is before this court on appeal for the second time. 2 At the original trial of the action the court fou...
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Plaintiffs brought this action, February 20,1961, for the damages suffered by each of them in an automobile accident for which the defendant Mary J. Treder was said to be responsible. That defendant propounded a series of interrogatories to each plaintiff in June of 1962. Having received no answer from either plaintiff, on April 28,1965, she filed a notice that she would move for an order strikin...
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While there are two codefendants, Lawrence Boiven and W. J. Boiven, the latter’s liability is derivative only and by reason thereof reference will be made only to the primary defendant in considering the appeal. Shortly before midnight plaintiff finished her shift as a waitress and accompanied by a fellow-worker, Martha, visited the Flamingo night club on Los Angeles Street, in Anaheim, California...
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Defendant 1 from judgment of conviction, jury trial having been waived, of violation of section 11501, Health and Safety Code (unlawful sale of narcotics) and of three prior felony convictions. Questions Presented 1. Was the case mistakenly submitted on an incomplete transcript? *223 2. Sufficiency of evidence. 3. Did alleged prior entrapment on Septe...
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Defendant was charged in nine counts— armed robbery (count I), kidnaping while armed for the purpose of robbery (counts II, III) ; with Bernard Jackson, Shirley Jackson and Jo Ann McCleary, murder (count IV) and armed robbery (count V) ; with Bernard Jackson, grand theft auto (count VI), armed robbery (count VII), kidnaping for purposes of robbery (count VIII) and assault with a deadly weapon (co...
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Defendant was charged with two counts of indecent exposure (Pen. Code, § 314, subd. 1) and two prior felony convictions (burglary and indecent exposure). The jurors were unable to agree and a mistrial was declared. Before the second trial, and outside of the presence of the jury, defendant admitted the priors. He was convicted on both counts. Committed to Atascadero State Hospital for observation ...
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The criminal complaint in this case was originally filed in the Municipal Court of the Bakersfield Judicial District of Kern County in an attempt to enforce a provision of the Bakersfield Transient Lodging Ordinance (ordinance No. 1200, New Series, amended by emergency ordinance No. 1286, New Series, and by ordinance No. 1511, New Series), which required the defendant Evans, as a hotel-keeper i...
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The public administrator appeals from order admitting a holographic will to probate, appointing Joseph Jacobson executor and issuing to him letters testamentary, and denying the public administrator’s petition for letters of administration. The entire instrument, written by and in the handwriting of the deceased, bears in the top right corner the purported date of its execution, “1965.” There appe...
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Plaintiffs and defendants are competing producers on television of travel and adventure programs. Plaintiffs have a common interest in their programs which are owned by Television Adventure Films Corporation (TAFCO). Jack Douglas is a half owner of TAFCO; he also was the owner of Jackit Productions, Inc. and Jack Douglas Enterprises, Ine. Banner Films, Inc. is a distributor of certain programs of...
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In a wrongful death action involving the death of a child, her parents sued both the child’s attending physician for malpractice (a count not involved on this appeal), and in a separate count Thomas Fuller, Ph.D., a botanist employed by the state, two Doe defendants (not served), and the state itself. The appeal is from a judgment after an order sustaining without leave to amend the demurrers o...
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The defendants served with process appeal from that portion of a default judgment which awards $7,171 to the plaintiffs. While somewhat unusual, a defendant may appeal from such a judgment (Gudarov v. Hadjieff, 38 Cal.2d 412 [240 P.2d 621] ; Jameson v. Simonds Saw Co., 144 Cal. 3 [77 P. 662] ; J. M. Wildman, Inc. v. Stults, 176 ...
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For the third time Barry Miles Sigal was convicted, after jury trial, of murder in the second degree. He appeals from the judgment. The facts are substantially as follows. The decedent Mrs. Wilma McAfee, a 67-year-old woman, was found dead by her daughter on January 12, 1962, around 7 p.m. She had been dead between fifteen to twenty-eight hours, placing the time of death between 9 :30 p.m. on J...
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Defendant was charged with a violation of section 11530.5 of the Health and Safety Code (possession of marijuana for sale); a prior conviction of felony was -also charged. After a motion under section 995 of the Penal Code had been made and denied, he pled not guilty and denied the prior. Trial by jury was duly waived, he was found guilty and the prior was found to be true. Probation was denied an...
Views: 0
In this wrongful death action the questions presented on appeal are as follows: (1) whether it was error to reject defendant’s offer of proof that deceased, shortly before his death, had told a witness that he (the deceased) intended to leave his wife (the plaintiff), and that he could not stand her behavior; (2) whether the trial court erred in refusing to permit defendant to inquire into plai...
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Defendant was charged with robbery (Pen. Code, § 211) and that at the time of its commission, and his arrest he was armed with a deadly weapon; and a prior felony conviction (later stricken on motion of the People). He entered pleas of not guilty and not guilty by reason of insanity; experts were appointed to examine him regarding his present sanity and sanity at the time of the commission of the...
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Defendant was charged with the crime of murder (Pen. Code, § 187) and two prior convictions (unlawful taking of a motor vehicle and violation of section 11530, Health and Safety Code). The cause was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing, she found defendant guilty of voluntary manslaughter, a lesser and necessarily included offense, and t...
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Defendant was charged with grand theft of an automobile in violation of subdivision 3 of section 487 of the Penal Code. He pled “not guilty” and, after a trial by jury, he was found guilty as charged. A motion for new trial was made and denied; he was sentenced to state prison; sentence was suspended and he was granted probation for four years on condition (inter alia) that he spend one year in...
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I dissent. The narrow issue is whether an exclusionary clause in an insurance policy was properly construed as a matter of law liberally in favor of the insurer and strictly against the insured. The rule heretofore recognized has been to the contrary. (Brinkmann v. Liberty Mut. etc. Ins. Co., 63 Cal.2d 41, 45 [45 Cal.Rptr. 8,403 P.2d 136].) There should be no question that the phrase “commercial a...
Views: 0
Yolanda Castro sued E. A. Irish, Contractor, for personal injuries suffered when the automobile in which she was a passenger collided with a truck belonging to defendant and driven by one of its employees. She appeals from a judgment entered upon the jury’s verdict in favor of defendant contending, among other things, that the jury was improperly instructed on the issues of imminent peril and defe...
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Appellant was charged with first degree murder, tried by a jury and convicted of voluntary manslaughter. He was sentenced to state prison with the recommendation that the Adult Authority consider a minimum sentence. The victim, one Frank Leslie, was shot in the presence of Lemuel Haley and Carol Hennessey, both of whom, among others, were witnesses for the prosecution. Appellant, in addition to...
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Plaintiff appeals from an order denying her motion to modify the support provisions of a final decree of divorce. The order was based on the ground that the decree was based on an integrated property settlement agreement. We reverse the order. In the property settlement agreement, after a long, and carefully drafted portion dividing the community property of the parties, there appears the follo...
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Frank W. Porter (Porter), born in 1901, was a post office employee from 1925 until his retirement in 1957. His second wife died on November 15,1961. In 1961 a new and exciting life opened up for Porter: he discovered the Arthur Murray School of Dancing (School), or it discovered Porter. The dance studio in question was located in San Diego. Such a studio had been in continuous operati...
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Appellant was convicted on two counts of violation of Health and Safety Code section 11501: the first, sale of heroin; and the second, offer to sell it. Appeal from the second count may be disposed of quickly. A federal agent, Veal, who had been introduced to appellant by an informer, made a proposal to buy “half a piece” for $200; appellant replied that time was too short for that quantity, bu...
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Appellant Hartford Accident and Indemnity Company, Inc., (hereinafter called Hartford) appeals from a summary judgment for defendant granted by the superior *434 court in Hartford’s action for declaratory relief against Pacific Indemnity Company (hereinafter called Pacific) to recover the costs of defending a malpractice suit wherein it was determined that Pacific was the responsib...
Views: 4
Charles and Marie Novak appeal the judgment rendered by the court without a jury quieting title to certain real property in favor of respondent Charles B. Novak. The facts, which are not in dispute, disclose that appellants, Charles and Marie, are the son and daughter-in-law, respectively, of Charles B. Novak, age 86, who will be referred to hereinafter as “the father.” Prior to the subjec...
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This is an attempted appeal from an order denying a motion “to set aside the conclusion of the Director *445of Corrections that Defendant was not a fit subject for treatment” and from the judgment of conviction of possessing heroin. In an information filed in Los Angeles County on July 6, 1965, defendant was charged with having possession of heroin on the 15th day of June, 1965. It was further cha...
Views: 0
This is an appeal from a judgment of conviction of assault by means of force likely to produce great bodily injury. In an amended information filed in Los Angeles County on July 7,1965, defendant was charged in count I with assaulting Joe E. Brown with a deadly weapon on January 3, 1965, and in count II with assaulting Joe E. Brown by means of force likely to produce great bodily injury on January...
Views: 0
This is an appeal from a judgment of conviction of possession of marijuana. In an information filed in Los Angeles County on January 25, 1966, defendant was charged with possessing marijuana on December 5, 1965. It was further charged that on October 15, 1962, in the Superior Court in Los Angeles County, defendant had been convicted of the crime of violation of section 11500, Health and Safety Cod...
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This is an appeal from “the judgment of committment [sic] . . .’’of defendant as a narcotics addict. On May 30, 1966, Sergeant Trotsky, of the Los Angeles Police Department, received information from a confidential reliable informant that James Gleason and his wife were users and sellers of narcotics from a residence in Van Nuys. The next night at about 9 p.m. Sergeant Trotsky and Sergeant Olso...
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249 Cal.App.2d 459 (1967) LEE MAINS, Plaintiff and Respondent, v. BOARD OF BARBER EXAMINERS, Defendant and Appellant. Civ. No. 11448. California Court of Appeals. Third Dist. Mar. 15, 1967. Thomas C. Lynch, Attorney General, E. G. Funke, Assistant Attorney General, Hubert O. Bower and Theodore T. N. *461 Slocum, Deputy Attorneys General, for Defendant and Appellant. Carl Kuchman for Plaintif...
Views: 2
Defendant, convicted of armed robbery and adjudged an habitual criminal under Penal Code section 644, subdivision (a), 1 appeals. Defendant admitted two prior convictions alleged in the information. They were (1) a conviction “on or about the 1st day of February, 1961” for the crime of burglary, first degree, in Sacramento County, and (2) a conviction “on or about the 8th day of December, 196...
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Plaintiffs appeal from a judgment of the superior court granting the motion of James Berry to strike their complaint. The judgment also ordered that plaintiffs take nothing against Berry. On August 9, 1962, appellants were involved in a three-car accident in Oakland. L. R. Reynolds, who is named as a defendant in this action, was driving a DeSoto automobile. He had stopped at an intersecti...
Views: 8
Found guilty by a jury of being a convicted felon in possession of a eoncealable weapon (Pen. Code, § 12021), defendant was sentenced to prison. Appellant, Worley and Alderman were charged with robbery (Pen. Code, § 211), assault with a deadly weapon with intent to commit murder (Pen. Code, § 217) and possession of eoncealable weapons. Alderman pleaded guilty to a charge of attempted robbery. Coo...
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This is an appeal from a judgment of conviction of possessing a .45 caliber automatic pistol, having a barrel of less than 12 inches in length and defendant having theretofore been convicted of a felony. In an information filed in Los Angeles County on June 1, 1965, defendant was charged with possessing a firearm (above described) on or about April 28, 1965, having theretofore been duly convict...
Views: 13
This is an appeal from a judgment of conviction of burglary in the second degree. In an information filed in Los Angeles County on February 3, 1966, defendant was charged with burglarizing Millie’s Cafe on January 7, 1966, and that on or about September 17, 1958, defendant had been convicted of the crime of burglary, a felony, in Los Angeles County and further had been convicted in Los Angeles Cou...
Views: 0
This is an appeal from a judgment of conviction of receiving stolen property. (Pen. Code, § 496.) In an information filed in Los Angeles County on July 9, 1965, defendant was charged with receiving certain stolen clothing on or about June 16, 1965. Defendant pleaded not guilty and after numerous continuances (the most of which were at the request of defendant) the cause came on for trial on May...
Views: 11
Maier Brewing Company (Maier) appeals from a judgment in favor of Republic Indemnity Company (Republic) for $7,072.52 plus interest from May 1, 1962 for premiums due Republic on a workmen’s compensation'insurance policy issued to Maier by Republic. On or about June 1, 1961, the Raab Agency (Raab), general agent of Republic, accepted an application from Maier for workmen’s compensation insurance...
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On March 2, 1965, appellant was charged by information with “Assault by Means of Force Likely to Produce Great Bodily Injury” (in violation of Pen. Code, § 245) committed on Evelyn Sheetz. He pleaded not guilty. On May 3, 1965, after jury trial, appellant was found guilty as charged and sentenced to state prison for the term prescribed by law. On the evening of February 4, 1965 at about 10 p.m....
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Appellant was charged by information with sodomy (violation of Pen. Code, § 286), assault with a deadly weapon (violation of Pen. Code, §245), and kidnaping (violation of Pen. Code, § 207), all felonies. The information also charged a prior conviction for rape in Indiana in 1955, which was admitted. Appellant was tried by a jury and found guilty on all three counts. He was sentenced to state pr...
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Having obtained a judgment by default against Lawrence Silberman for damages arising out of an automobile accident, the plaintiff sued the defendant Aetna Insurance Company, the insurer of the owner of the auto *518 mobile driven by Silberman, to recover the amount of the judgment. By cross-complaint, Aetna sought to have the default judgment set aside. The trial court rendered judgment in favo...
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The petitioner Miller, assigned to assist a defendant charged with four misdemeanor counts, was late in appearing at a session of the municipal court. He was cited for a direct contempt; tried and adjudged guilty. He applied for a writ of habeas corpus, but before one was issued it turned out that the only punishment imposed was a fine, two hundred dollars. With the superior court’s blessing his ...
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Plaintiffs brought this action on behalf of all the active and retired members of the police and fire departments of Richmond against defendant City of Richmond and its Director of Finance. 1 Pursuant to the first four counts of the complaint, plaintiffs sought declaratory relief and a writ of mandate compelling defendants to treat certain “hazardous duty” pay as part of plaintiffs’ salaries fo...
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Appellants Joe Charles Walters and Lloyd Sancho, Jr., appeal from their conviction of burglary which the jury found to be of the second degree. *549 The circumstances which led to their conviction are as follows : Fannie Yee and her husband owned a grocery store at 8751 S. Compton Street, Los Angeles, and on October 19, 1965, at about 7:30 p.m. Fannie Yee secured the premises, checked the bur...
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The People move for an order dismissing Gonzales’s appeal on the ground that Gonzales failed to comply with the requirements of section 1237.5 of the Penal Code. Gonzales filed an appeal May 31, 1966, from a judgment rendered May 27,1966, convicting him of violating section 470 of the Penal Code (forgery) following his entry of a plea of guilty. Gonzales was charged with three counts of forgery up...
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The plaintiff corporation operated a restaurant and bar business with respect to which fire insurance policies totaling some $100,000 on building and equipment were in effect. A fire occurred; one of the three insurers involved settled with the plaintiff prior to trial; the two other companies refused payment on plaintiff’s proofs of loss and this litigation resulted. Judgment was rendered agai...
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The subject action arises from breach of an employment contract in which the plaintiff was the employee and the defendants the employer. Plaintiff was engaged to manage an automobile business with compensation at the rate of $1,300 per month. The corporate employer-defendant was found to be the alter ego of the individual defendants. Plaintiff’s employment commenced October 1, 1963, ...
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Plaintiff appeals from a judgment of nonsuit in an action seeking compensatory and punitive damages from defendant, an attorney at law, for conversion. The property allegedly converted consisted of her claimed interest in the proceeds of two drafts payable jointly to defendant and Robert Swiger, his client and plaintiff’s former husband, in settlement of the latter’s action, then pending in Los...
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The plaintiff, who was a police officer for the City of Los Angeles from September 16, 1952, to January 13, 1962, has appealed from an adverse judgment in an action for declaratory and other relief with respect to his claim that he was entitled to have returned to him, upon the cessation of his employment, the deductions from his salary which had been made pursuant to the provisions of section 18...
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This action was brought to obtain a judicial interpretation of a lease by which plaintiffs, as landlord, leased real property to defendant, as tenant, for a term of 30 years commencing June 1, 1946. Plaintiffs’ contention is that *587 defendant is obligated to raze the existing building and erect a new building on the premises suitable for its mercantile business. After a court trial in which e...
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This action grows out of an automobile accident. Verdict and judgment went for defendant. Plaintiffs have appealed. The basic question on this appeal is whether the court prejudicially erred in admitting evidence as to the manner in which the accident occurred that was outside defendant’s pretrial statement as to how it occurred. The accident occurred in the late afternoon of May 22, 1961, on Vano...
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Defendant was found guilty of two counts of receiving stolen property. Probation was denied and he was sentenced to concurrent terms in the state prison. He appeals. The Evidence On the night of November 6, 1965 the Robert Earner Medical Group premises were broken into and among the items found missing the next morning was a check protector. Another burglary took place on the same premises on th...
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This appeal is the outgrowth of an industrial accident which occurred in August 1956, resulting in the death of Otto Woolen and Edward Dauer. Both were employed as painters by D. Zelinsky & Sons, an independent painting contractor. Heirs of the two employees brought separate wrongful death actions against Aerojet General Corporation, at whose plant the painting was taking place. In each case a jur...
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The defendant, Amos McGinnis, was charged with assault with a deadly weapon upon Joseph Palermo in count 1 of the information, and in count 2 with violation of section 12021 of the Penal Code (possession of a forbidden firearm by a convicted felon). After a three-day trial, the jury found the defendant guilty of simple assault, an included offense under count 1, and guilty of a violation of secti...
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Under conditional sale contracts executed on January 13, 1962 and June 8, 1962, respectively, San Jose Autocar White Company, Inc., plaintiff herein, sold two White 2-axle tractor-trucks to H. S. Earls and Louise M. Earls, his wife, to be used in their trucking business. Defendant, who is the nephew of H. S. Earls, guaranteed the installment payments called for by the contracts. When the v...
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Interpleader by Franklin Life to resolve contesting claims to life insurance proceeds. On one side, the insured’s divorced wife, Lorayne M. Kitchens, the named beneficiary under the policy; on the other, the guardian of the insured’s three minor children, Maureen, Thomas, and Susan Kitchens. The children claim on the basis of their parents’ divorce decree, which in disposing of community p...
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Lisner was convicted of receiving stolen property in violation of section 496 of the Penal Code upon an information charging Lisner with receiving 34 cases of stolen liquor worth $2,170, knowing that the property had been stolen, and with concealing and withholding the property from the owner, Sterling Liquor Company, Inc. Lisner’s motion under section 995 of the Penal Code was denied. He pleaded...
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This is an appeal from orders of the superior court, in a corporate shareholders’ derivative action, granting motions of defendants below and respondents here, that plaintiffs (appellants here) be required to furnish security in accordance with the provisions of Corporations Code section 834. Section 834 provides a procedure in a shareholders’ derivative suit for requiring a plaintiff therein to f...
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The People appeal from order of the Monterey County Superior Court granting defendant’s motion to dismiss information. Questions Presented Sufficiency of evidence to show probable cause of guilt. Was there an illegal search and seizure and were defendant’s statements obtained in violation of his constitutional rights ? Record Defendant was charged in an information with...
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Defendant appeals from conviction, after jury verdict, of violation of section 459, Penal Code (first degree burglary). Question Presented Did the trial court err in admitting a confession allegedly obtained in violation of Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], and Miranda v. Arizona (1966) ...
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The defendant, Eugene Floyd Phillips, and his sister-in-law, Katherine E. Phillips, were jointly charged with felonious assault as denounced by section 245 of the Penal Code; the crime was alleged to have occurred as follows: “. . . said Eugene Floyd Phillips and Katherine Phillips on or about the 14th day of July, A.D. 1965, at the County of Tulare, State of California, and before the filing of t...
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Defendant was convicted of possession of heroin (Health & Saf. Code, § 11500). On appeal,1 he contends that the analysis of a urine specimen obtained from him by his parole officer was erroneously admitted into evidence and that the testimony of the parole officer constituted an improper allusion to an admitted prior offense (Pen. Code, §1025). There is no dispute as to the sufficiency of the evid...
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Plaintiff Topanga Corporation brought an action against defendants Phillip and Maria Gentile, husband and wife, seeking a determination and declaration of the respective share interests of its stockholders, or in the alternative for rescission or reformation of such interests; to cancel a void issuance of shares because of the alleged fraud of defendants ; and for punitive damages against defen...
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The only question on this appeal is whether a security guard employed by the Los Angeles County General Hospital belongs to the “authorities” who must have advised a suspect of his constitutional rights before an incriminating statement by the suspect may be admitted in evidence. (Miranda v. Arizona, 384 U.S. 436, 472 [16 L.Ed.2d 694, 86 S.Ct. 1602,10 A.L.R.3d 974]; ...
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The appeal is from judgment for respondent based on an order sustaining demurrer to appellant’s third amended complaint. The action is grounded upon the alleged violation of the California Tort Claims Act. The *698 succeeding paragraph contains, in substance, the charging allegations against the City and County of San Francisco : On July 11, 1964, plaintiff Novelita Callahan, ...
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Defendant appeals from those portions of an order dated June 30, 1965, 1 affirming the ex parte appointment of a receiver, and ordering defendant to pay the expenses and fees of the receiver, as well as the counsel fees incurred by the receiver and plaintiffs. In 1959, plaintiffs, Michael Maggiora, Gregory Maggiora, Angela Andreotti, and The Maggiora Corporation, entered into a 99-year lease ...
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The People seek a writ of mandate directing the respondent superior court to set aside its order dismissing a criminal action against real party in interest (“King”) and to proceed with the trial of said action. *715 The information charged King with felony manslaughter (Pen. Code, § 192). He entered a plea of not guilty. Before the commencement of any trial thereof, the court dismissed the a...
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These are appeals from (1) an order denying a preliminary injunction against respondent, a national banking association, (2) a minute order denying a stay of the order denying a preliminary injunction, and (3) the sustaining of a demurrer without leave to amend to those portions of the amended complaint relating to the claim for a preliminary injunction. Appellants sold certain real property and r...
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Defendant, a realtor and mortgage broker, appeals from a judgment awarding his clients damages in the amount of $2,905 arising out of a fraudulent misappropriation committed by a salesman employed by appellant while that salesman was acting within the scope of ostensible authority. Appellant asserts that the evidence and findings of fact do not support the judgment; we hold to the contrary. The Pa...
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This is an appeal from an order granting a motion to set aside an indictment pursuant to section 995, Penal Code. There is also herewith for determination a petition for a writ of certiorari and/or mandamus filed by the People and to be considered in the event this court should decide that the order setting aside the indictment is nonappealable. (Civ. No. 29463.) The two matters are consolidated ...
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Defendant appeals from judgment of conviction after verdict, of violation of sections 484-487, Penal Code (grand theft). Questions 1. Sufficiency of evidence. 2. Was defendant sufficiently warned of his right to an attorney to admit his extrajudicial statements? Evidence Defendant was charged by information with having wilfully and unlawfully taken $7,000 from one Otto Will on October 14, 1965. Ot...
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Plaintiff lessors sought recovery from defendant lessees for extensive fire damage to the leased premises. Judgment on jury verdict was for defendants, and plaintiffs appeal. Both original plaintiffs have died, and their personal representatives have been substituted. Defendant lessees operated an automobile sales agency and garage on the leased premises. Occasionally, an automobile purchaser requ...
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This is an appeal from a judgment entered in confirmation of an arbitrator’s award of $13,226.03 (aside from costs) against appellant and in favor of respondent. The sole basis for this appeal is that the arbitrator had no jurisdiction to make the award because respondent, who initiated the arbitration proceedings, had, prior to doing so, waived his contractual rights to such arbitration b...
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Ruby Evans appeals from a judgment of conviction entered upon jury verdicts on three counts of pandering (Pen. Code, § 266i). Pandering is a felony. In October 1965, Ruby Evans introduced herself to Judy Ann Lay and Barbara Jean Lynch, two minors who had run away from a foster home. Ruby persuaded them to work for her as prostitutes in a hotel room Ruby rented and used as a house of prostitution. ...
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Plaintiff, claiming title under a tax deed, sued to quiet title to three adjacent mining claims known as Toltee, Aztie, and Montezuma. Named as defendants were J. B. Wood (the original patentee), the State of California, the County of San Bernardino, and others. The county was the only party to appear and answer; the State merely filed a disclaimer as to the Toltee and Aztie mines and the remai...
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Defendant, Chinese Hospital Association, a corporation, has appealed from a judgment of $50,000 1 entered upon a jury verdict in favor of plaintiff, Gin Non Louie, in an action in which he sought damages for injuries suffered in a fall from his bed while a patient in that hospital recovering from an 2 The defendant complains that the trial court erred in instructing the ...
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A jury found the defendant Otis Everett Butler guilty of violating Penal Code sections 288 (lewd and lascivious conduct) and 288a (oral copulation). He appeals from the judgment entered thereupon. 1 The People’s evidence, which we must view in the light most favorable to them following a guilty verdict (People v. Sweeney (1960) 55 Cal.2d 27, 33 [9 Cal.Rptr. 793, 357 P.2d 1049] ; People...
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Wesley E. Haney appeals his conviction for murder in the second degree after he was found guilty by a jury. The degree of the crime was determined by the court pursuant to stipulation that the jury need not set the degree. Appellant sets forth numerous contentions on appeal, asserting inter alia that there was an unreasonable delay before he was brought before a magis...
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On October 1, 1963, defendant pleaded guilty to violating section 459 of the Penal Code (burglary), and the court made an order in part as follows: " Proceedings suspended. Three years probation the first year in County Jail Concurrent with case 258188. ’ ’ About two years thereafter (November 24, 1965) the court made an order revoking probation, and a bench warrant was *821issued. On December 6, ...
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Defendant Wolf appeals from an order granting plaintiff a new trial and defendant Parke-Davis and Company appeals from the judgment in favor of plaintiff in the sum of $180,000 and from the order granting plaintiff a new trial on the issue of damages 1 Questions Presented A. Wolf appeal from order granting new trial. 1. Alleged abuse of discretion in granting new trial. ...
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The Municipal Court, San Diego Judicial District, and one of its judges appeal from a superior court judgment ordering them, by writ of mandate, to permit Mora E. Pickett and duly licensed bail agents employed by her to make motions authorized by Penal Code, section 1305. Plaintiff Mora E. Pickett, owner of a San Diego bail bond agency and attorney-in-fact for plaintiff United Bonding Insurance...
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This action was brought by Ruth Robinson, now deceased, to recover damages for injuries resulting from a three-automobile collision which occurred at approximately 1 a.m. on March 7, 1963. The action was tried before a jury which rendered its verdict against the plaintiff (respondent herein) and in favor of both defendants (appellants herein). Plaintiff then moved for a new trial upon three gro...
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H. L. Francis and Merrill D. Price, who describe themselves as . . operators of eardrooms . . . brought this suit to restrain the County of Stanislaus, Dan Kelsay, its sheriff, and Alexander M. Wolfe, its district attorney, from prosecuting them for any breach of an ordinance adopted by vote of the people of Stanislaus County relative to gambling in commercial eardrooms in the County of Stanisl...
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Plaintiff has appealed from a judgment dismissing its complaint following the sustaining of a demurrer thereto, without leave to amend, on the grounds that the action is barred by the one-year limitation contained in subsection (6) of section 3 of the United States Carriage of Goods by Sea Act. (Act., Apr. 16, 1936, § 3(6), 49 Stat. 1208, § 3(6), 46 U.S.C.A., § 1303(6).) The allegations of...
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The action is by the County of Los Angeles to collect rental from General Telephone Company of California for the use of county bridges for its transmission cables. The court denied the motion of the county for judgment on the pleadings and granted a similar motion of the defendant. The county appeals. The company maintains and operates a telephone system in Los Angeles County and elsewhere in Cal...
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Appeal from judgment of conviction of grand theft in one count and of forgery in three counts. Defendant was charged by information filed by the District Attorney of Los Angeles County, in count I thereof, with the crime of grand theft, a felony, in violation of section 487, subdivision 1 of the Penal Code, and with the crime of forgery, a felony, in violation of section 470 of the Penal Code i...
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An action for wrongful death was initiated against defendant Otto John Trapp by plaintiffs Mildred Smith and Eobert J. Smith for the wrongful death of Charles Smith. The plaintiff, Mildred Smith, is the widow of the decedent, and the plaintiff, Eobert J. Smith, is the father of the deceased. The decedent was employed by E. J. Noble Company, and the death occurred while the decedent was acting w...
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In a jury trial defendant was found guilty of violating section 220 of the Penal Code (assault with intent to commit rape). He appeals from the judgment. In a previous trial of the charge defendant was found guilty, and the judgment was reversed on the constitutional ground stated in People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], (People v. Peckham, 232 Cal.App.2d 163 [...
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In this appeal we are called upon to decide whether the trial court was justified in granting plaintiff ’s motion for a summary judgment against defendant. Plaintiff, William Sharman, brought action to enforce an agreement signed by defendant Frank Longo and one Vito Guarino guaranteeing plaintiff’s salary under an employment contract. According to plaintiff’s complaint, by the terms of the employ...
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After entry of a default and default judgment against him, defendant Eugene C. Weinstein—who had been served as a fictitiously named defendant—moved to set aside both the default and the judgment. Plaintiffs appeal from an order granting his motion. The original complaint, filed August 2, 1963, was in seven counts. It designated as defendants 26 named individuals, 8 named corporations (inc...
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This is an appeal from the order denying the motion of Alsie Hicks (hereinafter referred to as husband) to modify a judgment of divorce which awarded the custody of the children to Peggy Joanne Hicks (hereinafter referred to as wife) and from two separate orders awarding fees to her attorney. Wife was previously awarded a divorce on the ground of extreme cruelty. There are four children the iss...
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Howard K. Burdick, Administrator With the Will Annexed of the estate of Elva Dee Bailess, deceased filed a petition to determine heirship. The First Church of Christ, Scientist, in Boston, Massachusetts, and the Ninth Church of Christ, Scientist, Los Angeles, California, filed a claim of interest alleging that said churches were the residuary beneficiaries under the will of the deceased. James R. ...
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Appellant appeals from a minute order denying her petition for leave to present a late claim against the City *978of Los Angeles filed pursuant to section 912 of the Government Code1 after the statutory period of 100 days had expired, but before the expiration of one year from the date of the accrual of the cause of action. The facts upon which appellant relies are set forth in the affidavit of he...
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The trial court found defendant guilty of two counts of first degree robbery (§ 211, Pen. Code); he appeals from judgment and order denying motion for new trial. Appeal from the order is dismissed. Around 10:30 p.m. Larry LaBaron, a member of the Reserve Police Department of Long Beach, armed with a loaded .38 six-inch Smith and Wesson, Model K revolver in his belt, left his apartment to search...
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Argonaut Insurance Company and five employers insured by it seek annulment of an award of the Workmen’s Compensation Appeals Board to respondent Mabel Adamson, the widow of applicant Lee Adamson, deceased. They also pray for an order directing the board to issue a ‘‘ take nothing ’' order. On June 29, 1964, applicant filed a claim for workmen’s compensation benefits listing as defendants more t...
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This appeal is from some orders pertaining to the accounts, compensation, and attorney fees of a receiver who had been appointed by the superior court. The underlying civil action involves some kind of controversy over the ownership or control of Maemorris Sales Corporation. The record on appeal discloses little of the nature of that case, and it is of no consequence on this appeal. On Mar...
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This is a trip and fall case involving a sidewalk pedestrian and the City of Los Angeles. The action is based on the theory of defendant city’s duty to maintain the sidewalk in a reasonably safe condition. No actual notice of the defect was proved. The lengthy time of existence of the defect (at least from July 1957 to the date of the accident on July 19, 1959) established constructive notice the...
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Thomas S. Tierney, Maxine Tierney and Donald Dean Davidson were indicted by the Grand Jury of Santa Clara County, and charged with conspiracy (Pen. Code, § 182) to violate Penal Code section 484 (petty theft), Penal Code section 311.5 (creation of advertising matter represented or held out to be obscene), and Business -and Professions Code section 17500 (false and misleading advertising) . Respond...
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These are appeals from two judgments of conviction of the appellants of the felonies of attempted robbery (Pen. Code, §§ 664, 211), assault with intent to commit murder (Pen. Code, §217), and robbery of the first degree, (Pen. Code, § 211a), with specified admitted prior convictions as charged in a three-count information. The judgments appealed from differ only in their specification of the pr...
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The County of Los Angeles and the county engineer appeal from a judgment declaring that the county “Water Ordinance,” ordinance No. 7834, cannot constitutionally apply to investor-owned public utilities and enjoining the county and the county engineer from enforcing-the ordinance against the public utilities. *20 Statement of the Case The action was brought by the public ...
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On May 26, 1964, defendant pleaded guilty to an information charging him with one sale of heroin. (Health & Saf. Code, § 11501.) The information charged him with two prior narcotic offenses. On the People’s motion (Health & Saf. Code, § 11718) one of the two priors was stricken. The minimum sentence which defendant was to serve was thus reduced from 15 to 10 years. A probation report was ordered. ...
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The defendants Edwin Charles Jaquette and Will Martin Jordan were jointly charged by information filed by the District Attorney of Los Angeles County with the crime of kidnaping in violation of section 207, Penal Code and with the crime of rape in violation of section 261, subdivision 4 of the Penal Code, both offenses having arisen out of the same event. Jaquette was charged with having suffered...
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In 1946 the City of Auburn adopted an ordinance establishing parking meter zones. In 1965 the city completed proceedings for the establishment of a vehicle parking district in the downtown area. The 1965 proceedings were taken in conformity with the Vehicle Parking District Law of 1943. (Sts. & Hwys. Code, § 31500 et seq.) As permitted by section 31860 of the parking district law, the city coun...
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Defendant appeals from an order granting a motion for new trial in an action for the death of plaintiff’s wife following an automobile-pedestrian accident arising when defendant’s automobile struck the deceased while she was endeavoring to cross a Sacramento city street. The jury returned a verdict for the defendant. The trial court granted plaintiff’s motion for a new trial and defendant ...
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The employer challenges a workmen’s compensation award for temporary partial disability at the rate of $70 per week from March 30, 1966, through June 1, 1966. Key findings of the referee were: (a) that Hargrove, the claimant, was employed as a mechanic by John Geer Chevrolet Company when on February 25, 1966, he sustained an injury in the course of his employment; (b) that the injury caused tempor...
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Defendant appeals from a judgment of conviction of the crime of first degree robbery.1 Questions Presented 1. Correction by the court of its finding of degree prior to entry in minutes. 2. Sufficiency of evidence of first degree robbery. Record An information charged defendant with the crime of robbery, to which he pleaded not guilty. It also charged three priors, which defendant denied. By counse...
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Defendant Lockwood appeals 1 from judgment of conviction, after jury trial, of count I, violation of section 11500, Health and Safety Code (possession of opium) and count II, violation of the same section (possession of codeine). Questions Presented 1. Were defendant’s arrest and the search incidental thereto unlawful ? 2. On the motion for consideration under section ...
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This appeal involves the pleading of rights and duties incident to subjacent support of land, and a determination—apparently not heretofore made by an appellate court—of whether the common law rule of subjacent support has been modified by statute in California. Appellant, plaintiff below and herein called “district,” owned a public water system which included two pipe mains installed in t...
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Albert L. Cryor, a senior employee in the State Banking Department, appeals from a judgment denying his petition for a writ of mandate to compel the State Personnel Board to restore him to his former position as chief bank examiner. No issues of fact were developed by the pleadings; the case was submitted for decision upon the petition and the answer. The appeal is on the judgment roll, and the f...
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Appellant contested his wife’s will, which named her son by a former marriage executor and sole beneficiary, on the grounds of lack of testamentary capacity and undue influence. The jury found in favor of the proponent of the will on the first ground; the trial judge granted a nonsuit on the issue of undue influence. So far as the judgment is based on the verdict, appellant contends that the evid...
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The appellants Jerome Rehman, Mark Sincoff, Richard Alfred Gorman and Charles Edwin Symes, with several others, were accused by the Grand Jury of Los Angeles County, on June 14, 1962, in a two-count indictment. The case went to jury trial only as to amended count two charging appellants with the crime of conspiracy, in violation of section 182, Penal Code of California, a felony, in that they d...
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Petitioners, disappointed in their endeavor to put a stop to a prosecution against them on a misdemeanor charge, have appealed from the judgment discharging their alternative writ of prohibition and denying them a peremptory writ. We must take care, as we consider the contentions made, to remember that the question before us is not that to be decided in the misdemeanor prosecution, but that presen...
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In this personal injury action plaintiff appeals from the judgment following a defense jury verdict. Counsel are to be complimented for presenting this appeal on a well-conceived settled statement. The accident occurred in Marysville about 9 p.m. on June 16, 1963, at or near the signal-controlled intersection of Fifth Street and Highway 99 (E Street). There was evidence that this intersection lies...
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This is an appeal from a judgment of conviction of selling heroin. In an indictment filed in Los Angeles County on May 28, 1964, defendant in count I was charged with selling heroin on February 12, 1964, in violation of section 11501, Health and Safety Code; in count II with selling heroin on February 24, 1964, and in count III with the same offense on February 25, 1964. Defendant pleaded not guil...
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Florence Hazelwood appeals from a judgment entered upon verdict of a jury in favor of Paul Gordon and denial of her motion for a new trial.1 She had sued for damages suffered as a consequence of injuries incurred when she fell down a flight of stairs at the rear of a building on West Third Street in Los Angeles. The building was owned by respondent Gordon, and leased in part to appellant’s employe...
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Pollock and wife sued Tiano and wife for specific performance of a contract to sell plaintiffs a city lot. In a second cause of action plaintiffs sought damages in case specific performance could not be had. Defendants answered, alleging that plaintiffs had failed to perform terms of the agreement essential to entitle them to acquire the property and alleging that the agreement was procured by fr...
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Respondent, Kemmerer Engineering Co. (hereafter, “Kemmerer”), became obligated to pay damages to Whittier College, by reason of its furnishing defective plans and specifications for a construction job on the campus of the college. In a cross-complaint filed in an action brought against it by the college, respondent sought indemnification from appellant Continental Casualty Company (hereafter, “Co...
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Defendant was convicted by the court of possession of heroin (Health & Saf. Code, § 11500). This is an appeal from the judgment. Officers Comacho and Dismukes of the Los Angeles Police Department were told by members of the Santa Ana Police Department that they had information defendant and a Marilyn Sprague were dealing in heroin from an apartment located at 3820% Griffin, Los Angeles. An outstan...
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After a court trial defendant was convicted of forgery (Pen. Code, § 470) and he has appealed from the judgment.1 We have concluded that the judgment must be reversed because defendant’s connection with the offense was shown only by the testimony of an accomplice who was not corroborated as Penal Code section 1111 requires.2 Mrs. McCoy, aged 15, testified in substance as follows: Defendant gave he...
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Petitioners are defendants in a personal injury action. The plaintiffs, an injured child and his parents, appear here as real parties in interest. In the trial court petitioners moved to vacate a default and default judgment against them under Code of Civil Procedure section 473. The court granted their motion conditionally, its order declaring: “Motion Granted, on condition that defendant post...
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Velma Lee Matthies, plaintiff below, appeals from a judgment in her favor for personal injuries, following a jury verdict for $2,500. She contends that the verdict was unsupported by the evidence and that it was based on erroneous instructions. The trial was restricted to the issue of damages, the jury being instructed to find in favor of plaintiff on the issue of liability. A car being driven by ...
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In this action brought by plaintiff for an injunction to restrain defendants, Leland Murphy and Sonoma County Abstract Bureau, the beneficiary and trustee, respectively, under a deed of trust upon real property owned by plaintiff, from proceeding with a foreclosure sale of this property pursuant to the deed of trust, plaintiff appeals from a judgment dissolving the temporary restraining order i...
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This is an appeal from an order sustaining objections by Henry Fisher and Ilse Boros, who are assignees of Charlotte Fischer (sister of decedent), to the first and final account, report, and petition for distribution .and allowance of attorney fees filed by Margaret Kann, the executrix of the will of Edward Kann, deceased. The order in part directs the executrix to file an amended account and p...
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Defendant, on parole from the state prison on a prior felony conviction, was charged with the sale of heroin (§ 11503, Health & Saf. Code). The cause was submitted on the transcript of the testimony taken at the preliminary hearing ; additional testimony was taken. The trial court found defendant guilty. Thereafter on February 17, 1966, upon defendant’s request, criminal proceedings were adjourned...
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This is an appeal from a judgment of conviction of possessing marijuana. In an information filed in Los Angeles on April 7, 1966, defendant was charged with having possessed marijuana on the 19th day of March, 1966. It was charged further that defendant twice previously had been convicted of a felony, namely, a violation of section 288, Penal Code, in 1963, and a narcotics offense in 1964. De...
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On April 27, 1964, appellant Old Fashion Farms, a California corporation, sued Essie Hamrick for speoifie performance and declaratory relief based on an oral agreement for a written lease and option to purchase certain real property in the City of Lancaster, manifested only by an incomplete and uncertain written deposit receipt. A cross-complaint and counterclaim was also filed. As appears from a...
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In a court trial appellant Alvin Lloyd and his codefendant, Vivian Gray, were convicted of possession of marijuana in violation of Health and Safety Code section 11530. Lloyd alone has appealed from the judgment. On January 23, 1966, at about 5 a.m., a police officer, on routine patrol, observed ears parked near the Gold Mine Bar, and upon approaching, heard voices inside. He knew that within t...
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Defendant Noel Tweed is president, defendant attorney Kenneth A. Barwick, secretary, defendant David L. Long, treasurer, and defendant Larkin M. DeHart, a director of defendant Monte Vista Lodge, a California corporation. All four individual defendants and the corporation appeal from a judgment against them for $25,894, plus $1,000 attorneys’ fees. The plaintiff concedes the impropriety of the att...
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Defendant was charged with armed robbery. A deputy public defender represented him at the preliminary hearing and in all matters up to the time of trial. The first day of trial was spent selecting a jury, the next day was a legal holiday, and on the following day when the trial was to resume a hearing was held in chambers, out of the presence of the jury. Defendant’s counsel said: “Tour Honor, I ...
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Defendant Bonnie Ohmert appeals from a judgment in favor of her codefendant husband Richard Ohmert, and against her (with her consent), in an action brought by her mother Judy Buffington (who does not appeal). The latter alleged that the defendants, then in the process of securing a divorce, had borrowed money from her on three separate ocasions between the years 1951 and 1958, and had not repaid...
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Petitioner seeks a writ of mandate to compel respondent court to exercise its jurisdiction to hear her motion to suppress certain evidence. Following a preliminary hearing, at which the evidence in question was admitted, petitioner was held to answer and an information has been filed charging her with first degree murder. Trial was set for May 8, 1967. On or about April 18, 1967, petitioner fil...
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This action involves a dispute between a general law city and a county water district for the purpose of determining which entity has the right to serve domestic water to the residents of a subdivision. The subdivision is situated completely in the city limits and almost entirely within the territory of the district. The plaintiff Glenbrook Development Co., a California corporation, referred to...
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Contrary to the position of defendants, we determine that the subcontract was executed by one of the *280 plaintiff joint venturers and an officer of the defendant subcontractor, with knowledge on the part of the subcontractor at that time that there was a joint venture between the signatory and others and with knowledge of the terms and conditions of the prime contract between con...
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This appeal is from a judgment entered following the granting of a motion for nonsuit. Findings of fact and conclusions of law were filed pursuant to Code of Civil Procedure section 631.8. Appellant, a materialman, furnished air-conditioning and heating equipment to Chapin Sheet Metal Company, a subcontractor under the general contractor, Gannon Construction Company, that erected a building on ...
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Phillip Garcia Perez and his sometime mistress, Lydia Garcia Reyes, were jointly informed against for violation of section 11500 of the Health and Safety Code *290in that on or about December 1, 1965, “they did wilfully and unlawfully have in their possession narcotics, to wit: Heroin, without the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in thi...
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Appellants appeal from judgments of conviction, after jury trial, of robbery in the first degree in violation of Penal Code sections 211 and 211a. Section 211 provides: “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Section 211a provides in part: “All robbery ...
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Defendant, after a court trial, has appealed 1 from a judgment convicting him of two counts of selling marijuana in violation of section 11531 of the Health and Safety Code, and sentencing him to state prison after the denial of his motion for probation. The People established two sales: one on January 11, 1966, and one on January 24, 1966, each of which was consummated through the interventi...
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On December 14, 1965, a petition for a writ of habeas corpus was filed in the court below on behalf of George Gilbert Faucette, hereinafter referred to as “peti-. tioner.” This petition alleges that petitioner is “a parolee under the jurisdiction of the Department of Corrections of the State of California ...” and that he “is being illegally held in custody, confinement and restraint by the Dep...
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Defendant was charged by information with the crimes of robbery (Pen. Code, § 211) and auto theft (Veh. Code, § 10851), with two prior felony convictions. He was found guilty of first degree robbery and auto theft, and the jury further found the allegations as to the two prior convictions to be true. Defendant was sentenced to state prison, and the sentences thus imposed were ordered to run conse...
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According to the record which we have carefully reviewed, appellant, who was represented by counsel, pleaded guilty on July 19, 1962, to assault with a deadly weapon in violation of Penal Code section 245. Thereafter, appellant applied for probation and on August 6, 1962, he appeared in court with his counsel for the probation hearing. At the conclusion of the hearing the court suspended impositi...
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Plaintiff, a taxicab driver acting in the course of his employment, was injured when the cab collided with a car negligently driven. He brought this action against Regan, the negligent driver. Plaintiff received workmen’s compensation benefits from Truck Insurance Exchange, his employer’s compensation carrier, which filed its complaint in intervention, alleging Regan’s negligence and plaintiff’s ...
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This is an appeal by plaintiff from a judgment of the Municipal Court of the Long Beach Judicial *370 District dismissing its action. The judgment was entered following an order sustaining defendant’s demurrer to the first amended complaint without leave to amend. The Appellate Department of the Superior Court for Los Angeles County-reversed the judgment with directions and, on its...
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Defendant appeals from a conviction for a violation of section 11500 of the Health and Safety Code. Facts On May 13, 1965, Officer Brown of the South Gate Police Department saw defendant in a vacant lot at Calden and Southern. He parked his car along the curb behind a vehicle the motor of which was still running. Defendant, who had been looking into some bushes, looked up and started to wal...
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Stanley Loeb appeals from a judgment denying him specific performance of an escrow agreement for the purchase and sale of real property which he sought to enforce against Doctor Mae Wilson, seller. The trial court denied appellant specific performance upon the grounds that the escrow agreement disclosed inadequate consideration, that the subordination agreement contained therein was unjust...
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The inception of the within proceedings was by way of information filed in San Luis Obispo County charging defendant with seven felonies committed in June 1961 (burglary [count I] ; possessing a concealable weapon [count II] ; robbery [count III]; kidnaping [count IV]; assault with a deadly weapon [count V]; kidnaping [count VI]; and murder of a deputy sheriff [count VII].) The cause was tried to ...
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Defendant with one Coffee was charged with burglary (§459, Pen. Code) and two prior felony (burglary) convictions. He pleaded guilty to burglary, second degree, and a probation report was ordered. Thereafter on defendant’s motion his guilty plea was set aside; he pleaded not guilty. Out of the presence of the jury he admitted the two prior felony convictions (later no disposition of these priors ...
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Defendants Benjamin Paniagua and Woodrow Wattie appealed from judgments of conviction entered after a jury found them guilty of the crime of murder. Paniagua’s crime was found to be murder of the first degree and his punishment was fixed as life imprisonment. Appellant Wattie was found guilty of second degree murder and he was sentenced to imprisonment for the term prescribed by law. A codefendan...
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Plaintiffs, Murray and Tillie Weisberg (“Weisbergs”), appeal from a judgment declaring Walter J. Loughridge, the defendant, to be the owner of certain described property. Weisbergs filed the present action seeking declaratory relief and seeking to quiet title to the Best in the West Car Wash (“Car Wash”). After Loughridge’s demurrer was overruled, he answered, denying the allegations of the com...
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Florence Cordova and Roy Logan were jointly tried before a jury and found guilty of a violation of Health and Safety Code section 11500 (possession of heroin). The appeal of defendant Roy Logan from his judgment of conviction was decided by this court in a separate opinion filed on June 28, 1967. In a proceeding under section 3051, Welfare and Institutions Code, Florence Cordova was adjudged a na...
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Is the following a complete, unambiguous, integrated agreement, needing no extrinsic evidentiary interpretation ? *438LAW OFFICES SHAW, BARNETT & MORGAN WILLIAM W. SHAW 3859 MAIN STREET TELEPHONE JESS A. BARNETT RIVERSIDE, CALIFORNIA OVERLAND 4-2340 JOHN B. MORGAN 1/9/61 Mr. Ted Leff— Divorce Retainer..........................750.00 Court Time .......................150.00 per day plus costs Wil...
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William J. Mullane died in August 1966. The executor named in his will predeceased him. In September 1966, appellant residuary legatee McIntyre and the Public Administrator of Orange County each petitioned for appointment as administrator with the will annexed of Mullane’s estate. The superior court appointed the public administrator. McIntyre appeals from the order of appointment. The sole issue ...
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Defendant, having been resentenced following one appeal ((1965) 238 Cal.App.2d 466 [47 Cal.Rptr. 879]), *447has again appealed from a judgment sentencing him to state prison for possession of a narcotic in violation of section 11500 of the Health and Safety Code, with two prior convictions for violation of the provisions of the same section, one in 1951, a misdemeanor, and the other, in 1959, a fe...
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Avelino Arboleda, an employee of the Trinidad Hotel in Palm Springs, was killed in an automobile accident on Friday, the 13th of May, 1966. The application of his widow, Dorothy Arboleda, for an award of death benefits was denied by the Workmen’s Compensation Appeals Board. The denial was based upon the application of the so-called “going and coming” rule. A writ was heretofore issued on her petit...
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Defendant was found guilty of assault with a deadly weapon (§ 245, Pen. Code) ; he appeals from the judgment of conviction. *498 On December 4, 1965, James Kidder drove into a drivein with four passengers; they were about to leave the ear when a beer bottle struck the rear and another car about 20 feet away started up the road. Defendant, one of the passengers of the latter, pulled his hand b...
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Defendant and two codefendants, Mayor and Linarez, were charged with burglary (§ 459, Pen. Code); defendant was charged with three prior felony convictions— grand theft (1959) and violation, section 10851, Vehicle Code (1961) and section 11500, Health and Safety Code (1961)—■ all of which he admitted. Called for trial, on motion of defendant and Mayor, the cause was severed; thereafter Linarez was...
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Plaintiffs appeal from the judgment of dismissal entered following the sustaining of the demurrer of respondent Arthur Murray, Inc. to their second amended complaint. Appellants are five women who allegedly paid respondent various amounts, reaching a total of approximately $40,000, for dancing lessons. The amounts range from $13,155.50 paid by one appellant to $2 075 paid by another. In the first ...
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Plaintiff Carl Swope filed this action seeking damages for slander against Robert Moskovitz, Gerald Novak, and Joseph E. Seagram & Sons, Inc., “a corporation doing business as Calvert Distilling Co.” Plaintiff, a former employee of Seagram, was discharged from his position on January 19, 1962. In his complaint, filed on January 17, 1963, plaintiff alleges that within the past year Moskovitz and...
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We have concluded that the admission of evidence of other offenses was not error requiring reversal and the court is not required to give CALJIC 51 (revised), sua sponte. About midnight, October 17, 1965, Steve Jackson, an employee of “Jack-In-The-Box,” a food dispensing establishment on South Manchester Avenue, County of Orange, was robbed by defendant of $222 at gun point. Defendant was cha...
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Appellant, after jury trial, was found guilty of robbery in the first degree in violation of section 211 and 211a of the Penal Code. Appellant was also charged with three prior convictions which he admitted. The trial judge denied his application for probation, and appellant was sentenced to the state prison for the term prescribed by law. This appeal followed. At approximately 1:30 p.m. o...
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This is an appeal from a judgment of the superior court directing appellant California Unemployment Insurance Appeals Board to set aside its orders determining that certain claimants, employees of respondent General Motors Corporation, are entitled to unemployment insurance benefits, and further ordering appellant Albert B. Tieburg, as Acting Director of Employment, to remove and cancel certain c...
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Robert and Jacqueline Zetlen appeal from a summary judgment granted on plaintiff’s motion in an action to recover the balance of money due and owing on a promissory note. American City Bank alleged in its complaint that on July 20, 1964, it loaned the Zetlens $122,850; that the entire amount, together with interest, was due and payable on or before May 15, 1965; that ...
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This is an appeal from a judgment of conviction of selling heroin. In an information filed in Los Angeles County on February 23, 1966, defendant Durazo was jointly charged with Nick Juarez Mendoza (sometimes hereinafter referred to also as Mendosa) of selling heroin on November 2, 1965. It was *556further charged that Durazo previously had been convicted of a felony, namely, robbery in 1950, and t...
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Barbara Williams and John Adams appeal separately the denial of their motion to vacate their respective pleas of guilty to one count each of bribery and the judgment and sentence of each entered pursuant to their pleas. This motion, coming after judgment and sentence was pronounced on each, is properly treated as a writ of error coram nobis. (People v. Jennings, 121 Cal.App.2d 531, 532 [263 P...
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This is an appeal by each of the appellants from a judgment of conviction of first degree robbery, attempted robbery and of assault with a deadly weapon. In an information filed in Los Angeles County on May 2, 1966, defendants were jointly charged in counts I and II with robbery, in count III with attempted robbery and in count IV with assault with a deadly weapon with intent to commit mur...
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Defendant was charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. Four prior narcotic offenses were also charged. A motion under section 995 of the Penal Code was made and denied. Defendant pled not guilty and denied the priors. Trial by jury was duly waived and the case was submitted on the transcript of the preliminary examination; except for the re...
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Defendant Geneva Development Corporation (Geneva) appeals from a judgment to the effect that there exists an easement for parking purposes appurtenant to the real property we refer to as parcel A, owned by plaintiffs, the servient tenement of which is the property referred to as parcel B, to which defendant Geneva holds a lease expiring on December 31, 2047. We affirm. Facts What follows is...
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By his complaint as amended plaintiff sought damages for malicious prosecution of a criminal proceeding charging him and others with violations of section 182, subdivisions 1 and 4 of the Penal Code (conspiracy to steal merchandise from defendants’ warehouse). It was alleged that at the conclusion of the preliminary hearing in December of 1958 he was held to answer for trial in the superior court...
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Defendant was convicted of two counts of selling heroin (§11501, Health & Saf. Code) and a third count with codefendant Mendoza. He appeals from judgment of conviction. In May 1964, Officer Foresta, Narcotics Division, was introduced by his superior officer to Dave; he did not then know Dave’s address or his last name. Later meetings with Dave were always prearranged. Subsequently he learned “his ...
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Petitioner Monrovia Hospital Company (“Monrovia”) seeks a writ of mandate to compel the respondent Superior Court of Los Angeles to enter an order granting *608petitioner’s motion to quash service of summons or, alternatively, a writ of prohibition to restrain respondent court from taking any further proceedings or making any further orders affecting petitioner in the pending civil action hereinaf...
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Emmett Anderson and Ruth Ellen Anderson filed a “Petition for Writ of Mandate Or Other Appropriate Relief” in the Superior Court, County of El Dorado, praying that the court direct the respondents (in particular, the El Dorado County Department of . Welfare) to cease and desist from violating rules and regulations of the State Department of Social Welfare and the equal protection clauses of the fe...
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Petition for writ of review to annul an order of the Shasta County Superior Court adjudging petitioner *618 guilty of failure to comply with a court order that required him to pay $50 a month for the support of a minor child. 1 Questions Presented 1. Did the court have jurisdiction to sentence defendant to imprisonment for more than five days ? 2. Is the order sufficiently specific ? ...
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Defendant appeals from judgment of conviction of the crime of attempted murder. Questions Presented 1. Was defendant given inadequate legal representation and hence denied his constitutional right to the aid of counsel ? 2. Do Escobedo, Dorado, Miranda and Aranda apply to Brinsfield’s extrajudicial statements implicating defendant ? 3. Was the evidence sufficient ? 4. Was there doub...
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Defendant was tried before a jury and found guilty of a violation of section 245 of the Penal Code (assault with a deadly weapon—count 1), and a violation of section 459 of the Penal Code (burglary in the nighttime while armed with a deadly weapon—count 2), and a second and separate violation of section 459 (burglary in the nighttime—count 3). He appeals from the judgment and sentence. Counts 1 an...
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Defendant was charged in count I with forgery of a fictitious name (Pen. Code, § 470), and in count II with assault with a deadly weapon (Pen. Code, § 245). One prior was alleged. Defendant pled not guilty; trial by jury was duly waived; the cause was submitted on testimony contained in the preliminary transcript, subject to the trial court’s rulings. The court found defendant guilty as charged. T...
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In these consolidated, court-tried actions for wrongful death and personal injuries as the result of a railroad crossing accident, plaintiffs appeal from a defense judgment in each ease. Negligence of Alfred Byrne, the driver of the automobile involved is conceded. 1 Also conceded is the fact that plaintiffs and plaintiffs’ decedent (Mary S. Bynog) (hereinafter, for convenience, generally ref...
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This was an action for personal injuries arising out of a rear-end collision, *661resulting in claimed whiplash and low back injuries by plaintiff, a 29-year-old sewage treatment plant operator. He recovered judgment on jury’s verdict in the sum of $2,000, and after order denying his motion for new trial, appeals, contending that the trial judge was guilty of abusing his discretion for failing to ...
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Plaintiffs appeal from an adverse judgment in an action to dissolve an alleged partnership in a certain Santa Maria trailer park and for a partnership accounting, which judgment also awarded defendants damages on their cross-complaint and decreed that two trailers registered in the names of plaintiffs (cross-defendants) were the property of the cross-complainants (defendants). Execution of the ...
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The proceeding before us relates to an action pending in the respondent court entitled Eason Monroe v. City of Los Angeles, et al., number 892044. The *672 defendants, the City of Los Angeles, its board of police commissioners and its chief of police, and the County of Los Angeles and its sheriff and its district attorney, here seek a writ of prohibition to re...
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Defendant was charged with possession of marijuana for sale (Health & Saf. Code, § 11530.5) and with two prior convictions of possession of heroin. Defendant *694 admitted the two priors. After a jury found defendant guilty as charged he was sentenced to state prison. This appeal is from the judgment. On October 18, 1964, Officer Billy Pool went to a house on South Amantha in ...
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In an action now pending in the respondent court petitioner, Earl Scheib, Inc., sued to enjoin the defendants Smee, Aeuff and Carcoa, Incorporated, from unfair competition and use of trade secrets. Summarily stated, plaintiff is a nationally-known, publicly-held company specializing in automobile painting, and claims to have expended considerable funds in accumulating a vast amount of di£ficult...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of section 23105 of the Vehicle Code (driving under the influence of narcotics.) Two prior convictions were alleged. Defendant entered a plea of “Not Guilty” and denied the priors. Defendant personally and all counsel waived trial by jury. Defendant was found “Guilty” as charged. The c...
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The appeal in this action is by plaintiff-appellant First & C Corporation, a corporation, from a judgment that plaintiff take nothing by its complaint as against defendants-respondents Walter Wencke and Cathryn Wencke (Wencke) after granting of defendants’ motion for *721 summary judgment. The action was instituted by • plaintiff’s complaint seeldng the reasonable rental value of p...
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Petitioner is an orthodox rabbi who had been employed by the defendant Department of Public Health in the position of kosher food law representative. Pursuant to the department’s proposal that the position be eliminated, the *728Governor, in his proposed budget submitted to the Legislature for the fiscal year 1965-1966, recommended that said position, and funds for the salary for said position, be...
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Appellant was charged by information in four counts with violations of Penal Code, section 337a, subdivisions 1-4, book-making. He waived jury trial. The court found him guilty as charged in count I (§ 337a, subd. 1, book-making and pool-selling); count II, (§ 337a, subd. 2, keeping and occupying premises for book-making and pool-selling); and count III (§ 337a, subd. 3), (receiving, holding and f...
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Defendants Crovedi and Coletti appeal from the judgments entered against them following a non jury trial that resulted in the conviction of Crovedi of burglary (Pen. Code, § 459), and Coletti of receiving stolen property (Pen. Code, § 496). Appellants make three basic assignments of error: (1) Property recovered as the result of illegal searches and seizures was improperly received in evidence ag...
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By petition for writ of habeas corpus, William Spinks alleged he was unlawfully imprisoned in the San Diego County jail; was a chronic alcoholic sentenced to that jail for 180 days, less one day suspended, for violation of Penal Code, section 647, subdivision (f); and this sentence violated the Eighth Amendment to the United States Constitution because his “acts were compulsive as symptoma...
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Joan Barr, natural mother of the minor, Julie Davis, appeals from order dated March 28, 1966, denying her petition to terminate guardianship (previously granted to Mabel Davis, no relation to Julie) and her order to show-cause for custody of Julie; and granting the guardian’s order to show cause re modification of order re visitation rights of Joan and Lee Davis (the natural father). The follow...
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This litigation arose out of a contract (and related matters) between Brunzell Construction Co., Inc. of Nevada (herein referred to as Brunzell) and Harrah’s Club for the construction of a casino in Reno, Nevada. Approximately a month after the instant action was filed, Harrah’s Club filed an action in Reno against Brunzell and Glens Palls Insurance Company (as surety). These two lawsuits ever ...
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By an information, defendant was charged with a violation of section 459 of the Penal Code (burglary). This was alleged to have occurred on or about November 17, 1965, in the Broadway Department Store. It was also alleged that defendant had suffered a prior conviction of the crime of assault with a deadly weapon, a felony, in Los Angeles County on July 31, 1959. Defendant was arraigned and pleade...
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Defendant appeals from a conviction of second degree burglary. The only substantial point is the legality of defendant’s arrest, which arrest yielded a specimen palm print, which matched a like print discovered in the burglarized premises. On May 18, 1966, at 4 a.m., Officer Adams was driving his police ear eastbound on Hollywood Boulevard. Near Hollywood Boulevard and Highland Avenue he saw ...
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Petition for habeas corpus, challenging a juvenile court commitment to the California Youth Authority. The petitioner, a 15-year-old girl, is presently in custody at the Youth Authority Reception Center at Perkins, Sacramento County. In May 1966 a petition was filed with the juvenile court alleging that she had run away from her parents’ home. (The habeas corpus petition contains an undeni...
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Plaintiff brought this action asserting a controversy respecting the validity of an administrative order made by the presiding judge of the Municipal Court of the North County Judicial District; sought a decree declaring the order void; and appeals from the judgment which, in effect, declared the order valid. In 1963 the Escondido Judicial District was consolidated with the North County Judicia...
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Plaintiffs appeal from a judgment denying them recovery on their complaint for declaratory relief and for damages for claimed breach of contract resulting from alleged wrongful termination by defendant of an agency contract. The trial court found that a written agreement dated September 6, 1962, and the written addenda thereto “constituted the agreement between the parties in all basic, es...
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Defendant Morgan Holbert Brown, in an information filed by the District Attorney of Santa Barbara County, was charged in count I with a violation of section 484 of the Penal Code (grand theft), and in counts II and III with violations of section 26104, subdivision (a) of the Corporations Code (selling or attempting to sell a security without a permit). Pleas of “not guilty” and “not guilty by r...
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This is an action by plaintiffs Carolina Lanes, Inc., and Carolina Enterprises, Inc., for declaratory relief and an injunction restraining respondents City of Los Angeles, board of police commissioners, and chief of police, from enforcing rules of the board regulating burlesque and strip-tease entertainment. The court determined that the rules are constitutional. Plaintiffs appeal from the judgme...
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In this petition for mandate, Anna Patterson, petitioner, seeks to compel the county clerk of Los Angeles to issue subpoenas to police off icers of the City of Compton to appear as witnesses in her behalf in an action now pending in the Superior Court of Los Angeles County for personal injuries resulting from an automobile collision. The county clerk did not issue the subpoenas because petition...
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Mike Lopez Molano and Norma Lee Tuck were jointly charged with burglary. The same information charged Tuck alone with possession of marijuana (Health & Saf. Code, §11530.) A prior felony conviction for possession of narcotics (Health & Saf. Code, § 11500), was alleged against Molano. Before the trial commenced, Molano admitted the prior conviction and moved to sever from the proceedings the mar...
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Petitioner, George Young, Jr., seeks a writ of prohibition to prohibit the trial of a count in an information charging him with an attempt to receive stolen goods. Two questions are presented: (1) Should the information have been set aside under Penal Code section 995 upon the ground that Young had not been legally committed by a magistrate inasmuch as entrapment (so it is contended) was shown ...
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Respondent, American Machine & Foundry Company, hereinafter referred to as plaintiff, filed an action in the Superior Court of Kern County against Golden State Lanes, Inc., a corporation, hereinafter referred to as defendant, and attached certain funds belonging to the defendant. Thereafter, appellant, the Division of Labor Law-Enforcement of the State of California, hereinafter referred to as pet...
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Appellants filed a quiet title action to a strip of real property naming as defendants the City of Fremont, California; the County of Alameda, L. T. Whipple and respondents Jones. The City of Fremont filed a disclaimer to the disputed property. The County of Alameda and L. T. Whipple (who answered the complaint), having no interest in the real property, did not appear at the trial to contest eithe...
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This is an appeal from an order modifying the child custody and support provisions of a judgment of divorce. The modification order transferred custody of the two minor children from the mother, Daisy Jane Brasher, to the father, Harry Brasher, Jr., and terminated child support payments to the mother. Although the modification order reserved reasonable visitation rights to Daisy, it suspended the...
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This is an appeal by the condemnor, the People of the State of California acting by and through the Department of Public Works, from a judgment in condemnation for freeway purposes awarding to the eondemnees, Lynbar, Inc. et al., 1 the sum of $125,000 for the taking in fee simple absolute by the condemnor of certain real property and all of the interests therein. This judgment r...
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Plaintiff, a longshoreman, was employed on February 6 to 10, inclusive, 1962, by respondent Matson Terminal Company (herein referred to as Matson) to assist in unloading the SS Short Hills, a vessel owned by appellant Sea-Land Service, Inc. (herein referred to as Sea-Land) in the Long Beach-Los Angeles Harbor. Upon reporting to the vessel for work on the evening of February 8, plaintiff was direct...
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Defendant was charged in five counts with soliciting Leonard Amabile to commit the crime of murder, each count charging a solicitation on a different date. A motion to dismiss, under section 995 of the Penal Code, was *899 denied; defendant pled not guilty. After a trial by jury, he was found guilty on all five counts. A motion for a new trial was made and denied; probation was denied; he was s...
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Defendant was found guilty of the offense of possession of heroin (Health & Saf. Code, § 11500). The court found seven prior felony convictions alleged against Mm to be true. We conclude that the judgment must be reversed because the evidence which convicted defendant was the product of an illegal search. On February 5, 1966, defendant was arrested in the lobby of the Barclay Hotel where he was s...
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Appellant and Ronald Stephanson were charged with three offenses: count I, the murder of Mickey L. Garron (Pen. Code, § 187) ; counts II and III, assault with a deadly weapon with intent to murder Keford Roberts and Lee Myles respectively (Pen Code, §217). Appellant was tried separately from his codefendant. A jury found appellant guilty of murder in the first degree and fixed the penalty at life...
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Defendants Baker and Gallup were jointly charged and tried. The information alleged (count II) an *923 armed robbery on October 3,1965, and a like crime on October 16, 1965 (count I). Gallup was convicted on both counts, Baker only on count I. The details of the two crimes need only be outlined, since the sufficiency of the evidence is not in dispute. On October 3, 1965, three men, wearing ...
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Defendant Adam Deanda Chavira was charged by information with violation of section 11500 of the Health and Safety Code (possession of narcotics). Trial without jury was held on September 10, 1963, and defendant was adjudged guilty. On October 2, 1963, the date set for sentencing, criminal proceedings were adjourned, and defendant was remanded to the custody of the sheriff, who was ordered to fi...
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After a trial by the court sitting without a jury, jury trial having been duly waived, the defendant was found guilty of violation of section 11530 of the Health and Safety Code (possession of marijuana), a felony. The offense was alleged to have been committed on or about April 22, 1966. The trial commenced and was concluded on July 12, 1966. Probation was denied and the defendant was sentenced t...
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Plaintiffs Beverly Susan Griffin and Henry Doyle Griffin, along with two other couples, hired fully equipped riding horses and packing mules together with a guide for a “pack in” trip to a camping area in the Sierra Mountains. The group left respondents’ packing station Friday, September 18, 1964, and arrived at the camp site in the mountains after a ride of approximately seven and one-half hours...
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Appeal from a judgment of final distribution under a will and codicil. Appellant and respondent (herein Lois and Virginia, respectively) are sisters, daughters of the testatrix. Her husband, the parties’ father, was Lutral E. Moore. The testatrix executed her will on July 11, 1953. The will appointed *947Lutral E. Moore her executor and instructed him to perform the conventional functions, includi...
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The defendant was charged by information, in count I thereof with grand theft, a felony (Pen. Code, § 487, subd. 1), and in count II thereof with receiving stolen property (Pen. Code, § 496, subd. 1). Both counts of the information rested upon the theft of a calculating machine and its subsequent disposition. The information also charged the defendant with having suffered a prior conviction of vi...
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This is an action by the People of the State of California for an injunction restraining defendants George Lynam and Estate Organization Service from engaging in untrue and misleading advertising practices (Bus & Prof. Code, § 17500) in connection with the promotion of “pure trust” plans for the management of personal assets. Upon plaintiff’s motion the court granted a summary judgment restrain...
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This is an appeal from a judgment of conviction of manslaughter (Pen. Code, § 192) and of a violation of section 273a, Penal Code. In an amended information filed in Los Angeles on April 6, 1966, defendant was charged in count I with having killed Lawrence Victor Cole without malice, on December 17, 1965, and in count II with inflicting on said Lawrence Victor Cole, a child of three years, unju...
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This is an appeal from a judgment of conviction of selling heroin. In an information filed in Los Angeles on November 26, 1965, defendant was charged in count I with selling heroin on *977August 5, 1965, and in count II with a similar offense on August 24, 1965. It was further charged that defendant had been convicted three times of felonies; once in February 1957, for the crime of burglary; once ...
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This is an appeal from a judgment of conviction of first degree armed robbery. In an information filed in Los Angeles on February 18, 1964, defendant, in count I was charged with robbing Concha Rosales of about $20 on January 9, 1964. It is alleged that at the time of the commission of the offense defendant was armed with a deadly weapon, namely, a .38 caliber revolver. It was further alleged t...
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Burglary. The questions at issue are the validity of the detention, search, and arrest of the defendants at the time of their apprehension. The facts of their arrest are these: about 2:30 p.m. on February 24, 1965, two police officers at a distance of 220 feet saw the defendants, whom they did not know, seated on the grass in a public park. Officer Satterlee testified they appeared to be dividing ...
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The plaintiff is a medical doctor specializing in obstetrics and gynecology. The actual defendant herein is Grove View Corporation, which operates a medical facility in the County of Orange known as the Palm Harbor Hospital. At the time of the fall here involved, plaintiff was a consultant on the staff of Palm Harbor Hospital. During the evening of November 9, 1961, plaintiff attended a mo...
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This is an appeal from a judgment of the Superior Court of Kern County refusing to issue a writ of mandate requiring the Board of Retirement of the Kern County Employees ’ Retirement Association to grant to .Hugh P. Grant a service-connected disability retirement. The basis of the judgment of the superior court is that the refusal of the board, after a formal hearing, to grant such service-conn...
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Defendant has appealed from an order which determined his arrearages under the provisions of a property settlement agreement, and ordered that execution issue for that sum. (See Code Civ. Proc., § 963, subd. 2; and Crowley v. Superior Court (1936) 17 Cal.App.2d 52, 54 [61 P.2d 372].) He contends that the court had no jurisdiction to make that order in the divorce proceedin...
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This is an appeal by defendants from a judgment which enjoined them from the use of a roadway and assessed damages against them in the sum of $2,500. Appellants contend that respondents by deed dated April 4, 1955, granted Western Studs, a logging firm, the right to use the roadway and that appellants’ use was under the authorization of the ultimate successors in interest to Western Studs and ther...
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Frank H. Kern appeals from an order granting Joseph M. Michelli a new trial in his action for personal *1048injuries sustained in an automobile collision. Following a jury-verdict and entry of judgment in favor of Kern, the trial court granted respondent’s motion for a new trial on the grounds of insufficiency of the evidence to justify the verdict and that the verdict was against the law. In so d...
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This is an appeal from a judgment of conviction of three counts of armed robbery. In an information filed in Los Angeles on February 15, 1966, appellant, with Clifton M. Adamson and Charles H. Thompson, was jointly charged in count I with robbing Thomas Johnson of certain jewels of the value of $13,150 on *1052 January 4, 1966, and it was charged that at the time of the commission of the offe...
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This is an appeal from a judgment "sustaining'the petition filed by the District Attorney of Los Angeles pursuant to sect. 3100.6 of the Welfare and Institution [sic] Code for a civil committment [sic] to the Calif. Rehabilitation Center. ’ ’ On October 17, 1966, an application was made for the admission of Edward William Chacon (appellant herein) to the Los Angeles County central jail infirmary p...
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Defendant and a codefendant Marguerite Anderson were charged with possession of marijuana for sale, viz., a violation of Health and Safety Code section 11530.5; were convicted by verdict of a jury; moved for a new trial, which was denied; and defendant alone appeals, contending the judgment should be reversed because (1) the evidence is insufficient to sustain the verdict; (2) statements by the di...
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This is an appeal by the People pursuant to Penal Code, section 1238, subdivision 1, from an order setting aside an information charging possession of marijuana in violation of Health and Safety Code, section 11530, a felony, on motion by the respondent under Penal Code, section 995, on the ground that the search of his car by two deputy sheriffs, which was made incident to his lawful arrest for ...
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Jeanette Church, respondent, called plaintiff and petitioner in the proceedings below, filed a petition under the California Tort Claims Act of 1963 (Gov. Code, § 900 et seq.), 1 seeking relief from the rejection by the County of Humboldt, defendant and appellant, of a tardily filed claim for injuries. From an order dated October 1, 1965, granting such relief, County of Humboldt appe...
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—Appellants were charged by information with one count of robbery (violation of Pen. Code, § 211) and one count of murder (violation of Pen. Code, § 187). They were convicted by a jury of attempted robbery (Pen. Code, § 664) and first degree murder (Pen. Code, § 189). Motions for new trial were denied. The court fixed the penalty for each appellant on the murder charge at life imprisonment. The s...
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These appeals have been consolidated by stipulation. The appeal in No. 29796 is taken from an order granting respondent executor’s motion for the issuance of a writ of execution. The writ is designed to enforce provisions of an interlocutory judgment of divorce ordering appellant to make certain monetary payments in compliance with the executory provisions of a property settlement agreement. The a...
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S. Lee Sharfman, the plaintiff in causes of action one and two, alleges that shortly before 7 p.m. on the evening of January 19, 1965, he was driving north on Pacific Coast Highway in Malibu when his car crashed into a five-ton road-roller negligently left by respondents in the dark without visible signs or lights in one of the northbound lanes of the highway, and as a consequence he was seriou...
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This is an action for breach of an alleged contract and for plagiarism of an unpublished play which plaintiff had written for television. The complaint also seeks damages for failure to give plaintiff screen credit as the author when the work was broadcast. The background facts essential to this appeal may be stated briefly. Plaintiff’s work, which is a complete play, in the form of dialogue an...
Views: 4

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