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All Reporters → cal-app-lexis → Volume 1970

Opinions in cal-app-lexis Volume 1970

Opinion Petitioner, following the denial of its motion for summary judgment in an action pending in respondent court, seeks a peremptory writ of mandate ordering that court to dismiss the complaint and to enter summary judgment for petitioner. It is concluded that petitioner is entitled to seek review of the trial court’s denial in proceedings of this nature, and that on the merits it is entitled...
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Opinion Defendant was convicted, following a jury trial, of grand theft (Pen. Code, § 484) 1 with a prior felony conviction. He appeals from that part of the judgment adjudging him to have suffered the prior conviction. 2 In the instant information, filed on March 15, 1968, defendant was *275 charged in Santa Clara County with grand theft. The information also alleged that defendant had...
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Opinion This action in quiet title involves lands in the Piute Mountains of Kern County. The amended decree quieted appellant’s title “to that certain land described by reference to the 1883 United States Governmfent Survey . . . except only as to those certain mining claims hereinabove set forth, or any of them, as and to the extent any or all of same may be located upon said ...
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Opinion On March 16, 1968, several police officers of the Yuba City Police Department entered appellant’s apartment at 357 Ainsley *297 Avenue, Yuba City, California, with a search warrant and found a usable quantity of marijuana and 13 LSD capsules. Appellant was arrested-and charged with possession of marijuana in violation of Health and Safety Code section 11530, and possession of restrict...
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Opinion Plaintiff landowners appeal from a summary judgment granted defendant State of California in an inverse condemnation action. The Pleadings The charging allegations of plaintiffs’ complaint are broadly drafted. They allege that, for a period prior to December 22, 1964, defendant “participated in the planning, designing, construction, maintenance, and operation of a fl...
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*314Opinion Basically this appeal is from that portion of a judgment denying admission to probate of three pages written in longhand by the decedent. In the interest of brevity and clarity these pages will be referred to as “the codicil.” The respondents filed a contest in which they objected to the admission of the codicil to probate. They took the position that the will of July 31, 1961, alone,...
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Opinion The plaintiffs appeal from a judgment in favor of the defendant following a jury trial. On July 19, 1962, the appellant, Arthur Garcia, an 11-year-old boy, was injured in respondent’s Happy Coin Launderette in San Jose. Respondent had owned the business since 1959. Launderette Sales designed the store layout and sold and installed all of the equipment. Respondent had nothing ...
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Opinion Statement of the Case Defendant was charged by information with the crime of'robbery (Pen. Code, § 211) in count I. It was further alleged that at the time of the commission of the offense he was armed with a deadly weapon, to wit, a revolver. Count II of the information charged illegal possession of a firearm by a convicted felon in violation of section 12021 of the Pena...
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*350 Opinion Plaintiffs brought this action in inverse condemnation against the state for water damage to real property suffered in 1967, allegedly resulting from acts of the state in connection with the Sacramento River Flood Control Project, dredger tailings, and the Oroville Dam. The trial court sustained the state’s general demurrer without leave to amend. Plaintiffs appeal f...
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Opinion In September 1964, a certain 1962 GMC passenger bus owned by petitioner Greyhound Lines, Inc., while enroute from San Francisco to Vancouver, British Columbia, was involved in a collision with a truck in Shasta County, California. Five persons, passengers in *358 the bus, filed actions for personal injuries against petitioner in the Shasta County Superior Court allegi...
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Opinion In this libel action, jury verdict, on a 9 to 3 vote, was in plaintiff’s favor for $7,500 compensatory damages and $50,000 exemplary damages. Judgment was entered upon the verdict and motion for new trial denied. Defendant appeals. Defendant is a mercantile agency. The reports here asserted to be defamatory were made to insurance companies which were considering appointment o...
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Opinion Arlene Andersen appeals from a judgment entered after a jury returned a $2,800 verdict in this action for personal injuries sustained when plaintiff’s car was struck from the rear by a car driven by defendant Ruth Howland, The sole contention on appeal is that the trial court erred in denying a motion for new trial, limited to the issue of damages, on the basis of newly discovere...
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Opinion Amy Lou Feist, petitioner, and R. Roger Rowe and the Board of Trustees of Rancho Santa Fe School District, defendants, appeal from a judgment granting a writ of mandamus commanding either a rehearing in the dismissal proceedings against petitioner as a probationary teacher or, in the alternative, reinstatement as a regular, full-time, certificated teacher. For the sake of clarity,...
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Opinion This case involves appeals by Allis-Chalmers Manufacturing Co. (hereafter referred to as A-C), C.I.T. Corporation (hereafter CIT) and Humboldt County (hereafter Humboldt) from an order of the Superior Court of Humboldt County entered on November 21, 1967. Trinity Tractor Co. (hereafter Trinity) is in the process of winding up and dissolution under court supervision, pursuant ...
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*448 Opinion Plaintiff and appellant George H. Elliano brought this action to recover from respondent, Assurance Company of America, the amount of a fire damage loss involving his residence. After appellant had completed his presentation of evidence, the trial court, upon motion by respondent made pursuant to Code of Civil Procedure section 631.8, rendered judgment determining th...
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*460 Opinion This is an appeal by plaintiff wife from an order granting a motion by the administratrix of defendant’s estate for entry of a final decree of divorce nunc pro tunc, and from the final) decree thereupon entered. Since an appeal does not lie from the order, that portion of the appeal must be dismissed; the order is reviewable on appeal from the final decree. (Nemer v. Nemer ...
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Opinion The petitioners, Anaheim General Hospital, Inc. and its insurance carrier, Continental Casualty Company, seek review of a decision (Opinion and Order Denying Reconsideration) of the Workmen’s Compensation Appeals Board awarding benefits to a student nurse for a back injury she sustained on December 5, 1967, when she slipped off a stool at the hospital. *471 Amicus cu...
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Opinion Clarence Paul Mahle, Jr., hereinafter referred to as “defendant,” is presently confided in the Santa Clara County jail awaiting retrial of a case in which a second degree murder conviction was previously reversed on the ground of erroneous jury instructions. (People v. Mahle (1969) 273 Cal.App.2d 309 [78 Cal.Rptr. 360].) Petitioner has not furnished bail fixe...
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Opinion Plaintiffs, minority shareholders in State Guaranty Auxiliary Corporation (State Guaranty) filed the instant action seeking the dissolution of State Guaranty. The respondents Robert S. Odell, Helen P. Odell, Henry R. Alden and Allied Properties were also named as defendants. • Respondent Allied Properties (Allied) is a California corporation which, *496 at the ti...
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3 Cal.App.3d 500 (1970) 83 Cal. Rptr. 530 THE PEOPLE, Plaintiff and Appellant, v. RONALD EDWARD KNIGHT, Defendant and Respondent. Docket No. 15660. Court of Appeals of California, Second District, Division Four. January 14, 1970. *501 COUNSEL Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Harry B. Sondheim, Dep...
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Opinion Lakewood Marina, Inc., appeals a judgment requiring it to return $5,000 of $11,000 paid to Lakewood by Eleanor Horrell toward the purchase of a $60,000 boat after Mrs. Horrell refused to complete the purchase. On March 29, 1966, Mrs. Horrell contracted in writing to buy the boat from Lakewood and made a $6,000 cash deposit as required by the contract. The boat was built on the east coast a...
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Opinion Defendant Mark A. Jenkins appeals from a judgment entered on a jury verdict of guilty to the charge of violating Penal Code section 475a (possession of a completed check with intent to defraud), from the order denying a motion for new trial, and from “any order made after judgment.” 1 The record discloses that, on or about January 13, 1968, a book of checks for an account held at th...
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Opinion In these four appeals, the Department of Alcoholic Beverage Control (hereafter Department), appeals from judgments remanding the matters for a reconsideration of the penalties imposed in the light of Business and Professions Code section 24755.1, enacted after the licensees’ violations of the retail price maintenance statute (Bus. & Prof. Code, § 24755). In the Liquor Sellers and ...
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Opinion This is a driver’s license suspension case. The trial court granted a peremptory writ of mandate directing appellant to set aside its order of suspension. It is not questioned that respondent was driving while drunk; he pleaded guilty. It is not contended by respondent that he was in any way misled by the officers procedure; he was given proper admonitions. He informed the officer that he ...
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Opinión The trial court granted defendants’ motion for summary judgment. Plaintiffs appeal from a judgment dismissing their complaint for injunctive and declaratory relief. Plaintiffs contend that two ordinances of defendant city, passed under the emergency provisions of Government Code section 65858, are not of the type authorized by that section, in that they temporarily change the zoning l...
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Opinion Appellant was charged with murder in the second degree in the first count of the information, and after jury trial was convicted of voluntary manslaughter. 1 His appeal centers on the perplexing question which came into existence when the trial judge purported to dismiss the murder charge, presumably pursuant to Penal Code section 1118.1, while at the same time declaring that the cour...
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Opinion After a hearing before the Juvenile Court of Tulare County, Linda Darlene D., who was then 18 years of age, was declared a ward of the court pursuant to the provisions of section 602 of the Welfare and Institutions Code and released to live with her mother. The court found that Linda was present in a place where marijuana was being smoked, with knowledge that such activity was occurring...
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Opinion This case is a companion to In re Linda D., also filed on this date. The background facts are set forth in detail in that opinion and will not be repeated herein. The main difference is that Donna Lynn was not in the Mohler home when the police entered the house at 11:30 p.m. She had left between 10 and 10:30 p.m. and was returning to get her coat and shoes when the police stopped the car ...
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Opinion This is an appeal by the East Bay Municipal Employees Union (hereafter union) and its officers, on behalf of certain named members 1 (hereafter collectively referred to as appellants), who are employees *580 of the County of Alameda (hereafter county), under the jurisdiction of the County Board of Supervisors, County Civil Service Commissioners, and Directo...
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Opinion American President Lines (hereafter taxpayer) appeals from an adverse judgment in its action for a refund of franchise taxes paid under *589 protest to respondent, Franchise Tax Board (hereafter board). The taxpayer contends that it is engaged only in interstate commerce and, therefore, is not subject to the state franchise tax; and, in the alternative, if subject to ...
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Opinion Defendant was charged in count I with discharging a firearm at a vehicle in violation of section 23110, subdivision (b), of the Vehicle *602 Code, and in each of counts II, III and IV with assault with a deadly weapon in violation of section 245 of the Penal Code, After a jury trial, defendant was found guilty on all counts, probation was denied and he was sentenced to state prison ...
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Opinion This is a dispute over a 104-foot wide strip of land which lies adjacent to the true north-south line dividing two parcels of land. Plaintiffs Duncan are record owners of the east one-half and defendants Peterson of the west one-half of section 26 1 of a certain township in Butte County. The trial court quieted title to the disputed strip in the Petersons, On the Duncans’ appeal we ag...
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Opinion Defendant appeals from a judgment of imprisonment after a jury found him guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) We filed an unpublished opinion in this case on December 18, 1969, then ordered a rehearing on our own motion in order to reconsider the appeal in the light of the California Supreme Court’s decision in People v. Hood, ...
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Opinion This is an appeal by Alexander Hoffman from an order 1 denying his petition for a writ of prohibition. A complaint was filed in municipal court charging Hoffman with having committed three offenses. The first count alleged a violation of Penal Code, section 415, in that Hoffman did unlawfully, wilfully and maliciously disturb the peace and quiet of the neighborhood by “tumultuous an...
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Opinion Defendant insurance company appeals from the judgment of the superior court, which confirmed an arbitration award in favor of Early Walter in the sum of $10,000 and in favor of Arthur Walter in the sum of $9,000, under and pursuant to the uninsured motorist coverage provided for in a policy issued by defendant to Arthur Walter. Appellant does not question the validity of the award to Ar...
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Opinion This is a petition for a writ of mandate to compel the Superior Court of Santa Clara County to set aside its order of November 19, 1969, which granted a motion to suppress evidence, made under Penal Code section 1538.5. We conclude that a peremptory writ should issue, as prayed, as no unconstitutional search and seizure was involved. *638 In People v. Mata (No. 47282 in the lower co...
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Opinion Plaintiff Tonya O’Gan appeals from a judgment entered after a jury found in favor of respondent King City Joint Union School District in a personal injury action. Appellant contends the trial court erred in excluding a prior inconsistent statement offered to impeach a defense witness and in refusing to instruct the jury on the liability of the school district for the negligent acts of a...
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*651 Opinion The People seek a writ of mandate to require the respondent Superior Court of Los Angeles County to vacate its order made pursuant to Penal Code section 1538.5 granting the motion of the real parties in interest (hereinafter referred to as defendants) to suppress evidence identified at the preliminary hearing as People’s exhibits 1 through 5. Facts On November 7, 1968, Police...
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Opinion This is an appeal by the People, pursuant to subdivision 7 of section 1238 of the Penal Code, 1 from an order of the Superior Court made under subdivision .(/) of section 1538.5 and section 1385, dismissing *663 a criminal prosecution after the court had granted a motion by defendant, made under section 1538.5, to suppress certain evidence. It was conceded in the trial court that,...
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*669 Opinion Petition to annul portions of the Opinion and Decision after Remittitur issued by the Workmen’s Compensation Appeals Board. Questions Presented Can a putative wife be a “surviving widow” under section 4702 of the Labor Code? Record Carl Brennfleck, who was employed as a truck driver by Consolidated Freightways Corporation of Delaware, was inju...
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Opinion Defendant appeals from a judgment of conviction, following a jury trial, of robbery in the second degree (Pen. Code, § 211). The chief contention on appeal is that the trial court improperly admitted the preliminary hearing testimony of one Arlgene Guthrie, who was not-present at trial, which testimony was the only evidence connecting defendant to the crime and relied upon for convictio...
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Opinion By her amended complaint, appellant' Juanita C. Romero, sought damages for the destruction of her 48 dogs; and for great bodily harm and mental suffering when she allegedly called to see the pile of her deceased dogs at the animal shelter where the massacre occurred. The defendants, who “intentionally, wrongfully, and maliciously[ 1 ] and with intent to injure plaintiff...
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*726 Opinion This is an appeal by defendant County of Los Angeles (County) and defendant Gibco Construction, Inc. (Gibco) from a judgment of the Superior Court of Los Angeles County in favor of plaintiff and against defendants. The action was brought by plaintiff, as an owner of real property, against defendants for damages caused by surface waters and mud draining across and ont...
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3 Cal.App.3d 744 (1970) 84 Cal. Rptr. 257 LLOYD G. CONNELLY, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. 1057. Court of Appeals of California, Fifth District. January 21, 1970. *746 COUNSEL L. Miles Snyder and Reginald M. Watt for Plaintiff and Appellant. Edward I. Pollack as Amicus Curiae on behalf of Plaintiff and Appellant. Thomas C. Lynch...
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Opinion Appellant was tried on a charge of possessing heroin for purposes of sale (Health & Saf. Code, § 11500.5). The jury returned a verdict of guilty. Appellant was denied probation and sentenced to the state penitentiary. Facts Robert Mannen, employed as an agent of the state Bureau of Narcotic Enforcement, was in charge of the investigation which led to appellant’s arrest a...
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Opinion Assertedly, Jacob Shemano engaged in the factoring business as National Consumers Credit Plan and Gary Financial Corporation. Appellant loaned some $60,000 to Shemano for the same. Demand was made upon him for payment, but he is insolvent. Appellant *791brought this action against Golden Gate National Bank, Shemano, and the six other respondents, asserting that he was a depositor in the G...
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*795 Opinion Appellant Gilbaugh became an associate professor of education at San Jose State College in 1956. In 1959, the year in which he attained tenure as a teacher, he was appointed dean and academic vice president of the college. He held that position until September 1, 1966, when he was reassigned by the president to the position of professor of education. This, of course, transferred ...
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3 Cal.App.3d 798 (1970) 83 Cal. Rptr. 724 THE PEOPLE, Plaintiff and Respondent, v. NOLAN B. RASHER, Defendant and Appellant. Docket No. 16529. Court of Appeals of California, Second District, Division One. January 22, 1970. *799 COUNSEL Dennis G. Merenbach, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorne...
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Opinion This action was brought by the County of Los Angeles (the county) against Hartford Accident & Indemnity Company (Hartford) to recover on a surety contract. Summary judgment was entered in favor of the county and Hartford has appealed. Statement of Facts The facts in this case are uncontroverted and may be briefly stated. The owner of a large apartment building in Lo...
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Opinion Defendant appeals from the judgment upon his conviction by the court of robbery in the first degree. The judgment contains the added finding that defendant was armed at the time of the commission of the crime. For reasons which follow, the armed finding must be stricken but the judgment is otherwise affirmed. On January 16, 1968, Mrs. Gail Briles was working at her job behind the coun...
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Opinion In a case submitted to the trial judge upon the transcript of the preliminary examination, defendant was convicted of possession of marijuana (Health & Saf. Code, § 11530). He had moved to suppress the marijuana as evidence (Pen. Code § 1538.5). That motion was denied. The court declared the offense to be a misdemeanor, and admitted defendant to probation for three years on condit...
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Opinion In a nonjury trial of an action brought by plaintiff and respondent Abrams as intended seller of a luxury residence, fully furnished, located on Angelo Drive in the City of Los Angeles (hereinafter “Angelo residence’’), for breach of contract by defendant and appellant Motter as intended buyer, the trial court, on April 27, 1967, rendered judgment in favor of Abrams for his loss o...
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*854 Opinion Appellants appeal from judgment granting respondents’ petition for writ of mandate compelling appellants to pay respondents $7,027.28 with interest. Questions Presented 1. Is section 19685 of the Education Code constitutional? 2. Does section 19685 of the Education Code require payment by the county to the school district of a proportion of the cost of...
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Opinion Defendant Clifford James Thomas was found guilty after a trial by jury of each of the following offenses: Count One: Robbery, 1st degree (Pen. Code, § 211); victim, George Page; Count Two: Robbery, 1st degree (Pen. Code, § 211); victim, Susan B; Count Three: Attempted robbery, 1st degree (Pen. Code, § 664); victim, Kathryn V; Count Four: Rape, by means of threats of bodily harm ...
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Opinion This is an appeal from an order of the superior court denying appellant bonding company’s motion to set aside bail forfeiture and exonerate the bail. In the criminal proceeding the defendant, Gwendolyn Lee Scoma (herein referred to as defendant) was charged with a violation of Health and Safety Code section 11530 and failed to make a scheduled appearance in court. A bench warrant was ...
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Opinion Jerome H. Frick appeals from a judgment for $12,627 confirming an arbitration award against him. The appeal lies. (Code Civ. *874 Proc., § 1294, subd. (d).) The basis of the appeal, broadly stated, is that there was no agreement to arbitrate and the arbitration was not an impartial one. We find no merit in the appeal. The Facts Generally On August 23, 1967, ...
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*879 Opinion Kenneth and Myrtle Hyde appeal from a judgment enjoining Mrs. Hyde’s part-time operation of a beauty parlor in her home as a violation of a restrictive covenant upon their property. Before appellants purchased the tract home in question, the developers of the subdivision had recorded a declaration of restrictions upon all the property in the subdivision. The res...
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Opinion The appeal is from an order modifying child support and terminating alimony. Mr. Cushing petitioned for an order to show cause, requesting modification of child support and alimony. Mrs. Cushing filed a like petition, and the two were heard and determined in the same hearing. The appeal is from that portion of the order made on May 14, 1968 in favor of Mr. Cushing and against Mrs. Cushi...
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Opinion J.— This is an appeal by the People, pursuant to Penal Code section 1238, subdivision 1, from an order setting aside count I of an information on a defense motion pursuant to Penal Code section 995. Defendant was charged by information with violation of Penal Code section 242 (battery on a peace officer) in count I, and with violation of Penal Code section 148 (obstructing public office...
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Opinion Defendant was convicted, after a nonjury trial in the municipal court of misdemeanor drunk driving (violation of Veh. Code, § 23102, subd. (a)). He appealed to the appellate division of the superior court. That court by a two to one decision affirmed the judgment. This court accepted certification “to secure uniformity of decision and to settle important questions of law.” (Cal. Rules of C...
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*908 Opinion Plaintiffs’ 21-year-old son was killed in a head-on automobile collision between a Porsche in which he was a passenger and a Chevrolet driven by defendant Glenn J. Mathias. 1 Plaintiffs brought the present action for the wrongful death of their son. Following a verdict and judgment for defendants, plaintiffs moved for a new trial on several grounds, includ...
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*917 Opinion This is an appeal from a judgment denying a petition for writ of mandate. On April 29, 1968, the Department of Motor Vehicles (hereinafter the “Department”) issued an order suspending petitioner’s driver’s license for one year pursuant to Vehicle Code section 13352, subdivision (c). 1 This statute provides for a mandatory suspension for one year where the Department is in rec...
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Opinion Defendant has appealed from his conviction, following a jury trial, of statutory rape (Pen. Code, § 261, subd. 1) of his 8-year-old mentally retarded stepdaughter. In proceedings under former sections 5500 et seq. of the Welfare and Institutions Code, the defendant was found not to be a mentally disordered sex offender; his motion for a new trial was denied; and he was sentenced to stat...
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Opinion The Department of Mental Hygiene (hereafter department) appeals from an adverse judgment in this action against the Bank of America (hereináfter bank) as executor of the estate of Herbert J. Kramer, to recover a sum of money due for the care, support and maintenance of his adult daughter, Elizabeth, a mentally ill person, in certain state institutions. The only question on appeal is whe...
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Opinion This is an appeal from the order granting summary judgment and from the summary judgment entered pursuant thereto in favor of defendants in a libel action. The appellant is the former superintendent of the Contra Costa Junior College District. He was discharged after members of an investigative panel at the request of the governing board of the district rendered a report conc...
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Opinion The People appeal from an order setting aside an information which charged respondent Thomas G. Abbott with possession of of marijuana (Health & Saf. Code, § 11530). The question is whether the marijuana which was discovered in Abbott’s possession was disclosed as the result of an unlawful assertion of police authority. The Attorney General’s brief contains an accurate summary of ...
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Opinion This is an appeal by a tenant, Louis Sabatasso, from a judgment and final order of condemnation entered on May 3, 1967, under *975 which he was denied compensation. His bakery occupied the ground floor of the building on the parcel of real property involved, the front part of which was taken in widening Hoover Street in Los Angeles. The equipment as to which he claimed damages pursuan...
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Opinion Defendant was charged in three counts, as follows: count I, assault on Rafael Estrada, with a deadly weapon with intent to kill, in violation of section 217 of the Penal Code; count II, assault on Guillermo Camacho, Jr., with a deadly weapon with intent to kill, in violation of the same section; count III, maliciously discharging firearms at the dwelling inhabited and occupied by Camach...
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*997 Opinion Plaintiff appeals from an order of dismissal entered after defendants’ demurrer was sustained without leave to amend. Plaintiff’s complaint alleged the following facts: Defendant John Sutherland, the agent and employee of defendant Cypress Insurance Company, intending to deceive plaintiff and induce it to take out a policy of workmen’s compensation insurance with defendant in...
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Opinion Robert C. Jay, duly appointed administrator of the estate of Charles H. Maginnis, deceased, brought this action on April 18, *1010 1963, to quiet title to 80 acres of land in Madera County, generally described as the North one-half of the Northeast one-quarter of Section 18, Township 5 South, Range 24 East, M.D.B. & M., as the representative of the estate of Charles H...
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Opinion Appellant appeals from a conviction of possession of marijuana for sale in violation of Health and Safety Code section 11530.5. We conclude that the ground of appeal is not supported by the record and affirm the conviction. Facts Edward Noriega, an agent of the State Bureau of Narcotics, obtained a search warrant from the Pomona Municipal Court. The affidavit in support of the pet...
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Opinion The minor plaintiff, through her guardian ad litem, appeals from an order dismissing her complaint against the defendants, the County of Orange, the Orange County Department of Social Welfare and the Orange County Probation Department, entered after a demurrer to her first amended complaint had been sustained without leave to amend. 1 The complaint seeks damages alleged to have been...
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Opinion John Young appeals from an order vacating a previous order which had reduced alimony payable to his former wife, respondent Mary Young. The question is whether the court had jurisdiction to make the prior order. In 1955 appellant obtained an interlocutory decree of divorce from respondent on the ground of incurable insanity. In 1958, the decree was modified on motion of respondent, wh...
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Opinion This is an appeal from an order directing issuance of a writ of execution in each of the above consolidated actions which arose out of the asserted breach of certain agreements for the distribution by defendant of films produced by plaintiffs. It is contended that in neither action was there a money judgment on which interest could be computed or for which execution could properly...
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Opinion After serving as a police officer for the City of Los Angeles, William McLeod retired from active service because of allegedly severe personal injuries sustained in the performance of duty. After his retirement, he filed an application for a disability pension with the Board of Pension Commissioners of the City of Los Angeles. A hearing was had and the application was denied. Ther...
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Opinion After the Workmen’s Compensation Appeals Board denied reconsideration, we granted the injured employee’s petition to review a permanent disability award. The referee’s formal findings declared that the. occupational accident “caused IAV2 % permanent disability after apportionment.” The findings did not specify the existence, kind or extent of disability attributable to a preexisting...
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Opinion Defendant appeals from the judgment entered upon a verdict finding him guilty of the first degree robbery of a service station. (Pen. Code, *43§ 211.) The amended information alleged one prior conviction, which defendant admitted upon arraignment. The order denying a new trial is reviewable with the judgment, but is not itself appealable, and defendant’s appeal from that order must be dism...
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14 Cal.App.3d 50 (1970) 91 Cal. Rptr. 781 UTAH HOME FIRE INSURANCE CO., Plaintiff and Respondent, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant and Appellant. Docket No. 36721. Court of Appeals of California, Second District, Division One. December 31, 1970. *51 COUNSEL John H. Cartwright, Jr., for Defendant and Appellant. Kurlander, Solomon & Hart, William A. Kurlander and Stephen A. Silver...
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14 Cal.App.3d 71 (1970) 91 Cal. Rptr. 837 THE PEOPLE, Plaintiff and Respondent, v. LEROY ALLEN MESARIS, Defendant and Appellant. Docket No. 18630. Court of Appeals of California, Second District, Division Three. December 31, 1970. *73 COUNSEL Freedman & Osborne and Carl K. Osborne for Defendant and Appellant. Thomas C. Lynch and Evelle J. Younger, Attorneys General, William E. James, Assistan...
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Opinion Defendant appeals from a judgment awarding plaintiff an amount which the court concluded was due under a contract. The facts were stipulated and are set forth below. G. M. Russell and Catherine S. Russell are the owners of a 40-acre parcel of land in Los Angeles, California, one acre of which is leased to Paul R. McClintock. On December 26 and 27, 1967, pursuant to a purported authori...
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*91 Opinion Defendant appeals from judgment, after jury verdict, convicting him of first degree robbery (Pen. Code, § 211) and finding that he was armed with a deadly weapon at the time of the commission of the offense. 1 Questions Presented Defendant’s sole contention is that the imposition of the additional penalty for first degree robbery prescribed by Penal Code section 12022.5, add...
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Opinion Marshall K., a minor, was brought before the juvenile court by petition alleging him to be within the provisions of section 602 of the Welfare and Institutions Code, in that he possessed marijuana in violation of section 11530 of the Health and Safety Code. The allegations of the petition were found to be true, and he was released to the custody of his parents. He has appealed upon three g...
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Opinion Plaintiff was injured while working as a maintenance man. He alleges that the condition of the building was unsafe, wherefore he was caused to fall. His injuries evidently were substantial, for there is asserted a large workman’s compensation lien of his employer, a service *237company. This action is brought against defendant, Western Title Insurance & Guaranty Co. Judgment of dismissal ...
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Opinion This is an appeal from a portion of a decree disposing of assets of a dissolved charitable corporation, and from an order instructing a trustee regarding final distribution of the corpus of a testamentary trust. The two cases were consolidated for trial in the superior court. The facts were uncontroverted and may be summarized as follows: Frank Herbert MacPherson died testate in Los Angel...
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Opinion The sole question presented is whether the motion of defendant to dismiss because defendant was not given a speedy trial as defined in Penal Code section 1382 was properly denied. From the transcript of the docket, it appears that a complaint was filed April 6, 1970, charging defendant with a violation of Vehicle Code section 2,3102, subdivision (a). The entry of June 19 recites that defen...
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Opinion In cases consolidated for trial, the defendants were charged with violations of section 8603 of the Fish and Game Code of this state.1 The parties stipulated to the facts. There is thus no dispute relating to the following facts: “1. The defendants are citizens of the State of California. “2. On March 19, 1970, each of the defendants engaged in the activity of fishing with purse seine nets...
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*3 Opinion This is an appeal by defendant Joe Willie Johnson from a judgment convicting him of rape and burglary. His sole contention on appeal is that he had a constitutional right to represent himself at the preliminary hearing and that the denial of this right requires a reversal of the judgment of conviction. The case is one of first impression. Defendant’s preliminary examination was h...
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Opinion This is an appeal by the People from an order dismissing a criminal prosecution against 11 defendants. The record reveals that on March 20, 1969, a grand jury indictment was filed against defendants Don McCoy, Robert McKendrick, Sandra Barton, Cecile Korte, William Candelario, Walter Doyle, Oleg Minakov, Robert Ellison, John D’Amore, Kris Stenz and Dennis Kalfas. The first co...
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Opinion Defendant appeals from judgment entered on his plea of guilty to a violation of Penal Code section 171c, subdivision 2, following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. He contends that the evidence used against him should have been excluded as it was obtained from the witness Maxey after a coercive waiver of Maxey’s privilege against self-i...
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*24 Opinion These are petitions which seek writs of supersedeas, mandate, prohibition, and temporary restraining orders. On 28 September 1970 judgment was entered in favor of plaintiff Davis against Custom Component Switches, Inc. (Custom) for approximately $3,500,000 and in favor of Davis against defendants Goodson and Hannam for approximately $1,200,000. The judgment also ...
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Opinion In this action for specific performance and damages, defendants’ general demurrers to the second amended complaint were sustained with leave to amend as to all four counts. Upon plaintiffs’ failure to amend, the action was ordered dismissed. (Code Civ. Proc., § 581, subd. 3.) Plaintiffs appeal from the judgment entered upon the order of dismissal. The sole ground of defendant...
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Opinion I. Statement of the Case Thompson and two codefendants, Washington and Williams, were charged by information with possession of marijuana in violation of Health and Safety Code section 11530. All were tried together before a jury and found guilty. All were represented by the same attorney, Mr. R. H. Lund. As to Thompson (hereinafter, defendant), proceedings were suspended and probat...
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Opinion The defendants are owners of a 140-acre parcel of land in San Joaquin County. Plaintiff district sought to condemn interests in three parcels of this land for a flood control project on Bear Creek. No part of the newly constructed flood control channel is upon defendants’ land. The district condemned (among other parcels of land) parcels 3097 and 3106B for a temporary easement as ...
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Opinion Respondent Director of the Department of Motor Vehicles (“Department”), appeals from a judgment entered July 3, 1968, granting *72 a peremptory writ of mandate in a proceeding which challenged the validity of the Department’s revocation of C.R.W.’s driver’s license pursuant to Vehicle Code section 13355 1 and from the writ itself. 2 C.R.W. is a m...
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*77Opinion C.E.M. appeals from an order of the juvenile court entered June 26, 1969, declaring him the ward of the juvenile court and committing him to the California Youth Authority. Count I of the petition filed against C.E.M. was for assault with a deadly weapon with intent to kill. The juvenile court sustained the charge of a lesser offense, assault with a deadly weapon. Count II for willful a...
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Opinion Plaintiff, Susan Thomas, a 6-year-old minor at the time of the accident, acting by her guardian ad litem, filed an action to recover damages for personal injuries sustained in a laundromat when the glass on top of one of the washing machines gave way as she was leaning on it and her left hand and arm were drawn into the machine while the unit was in full operation. Named as defend...
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Opinion This appeal is from a judgment awarding to respondent Roberts, a former partner, declaratory relief and the stipulated amount of $37,925.40, representing his interest in a medical partnership with appellants. Appellants, the remaining partners, contend that: 1) respondent is not entitled to recover his interest in the partnership, as after his withdrawal, respondent practiced medi...
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Opinion JPetitioner seeks a writ of mandate (Code Civ. Proc., § 400) compelling respondent court to vacate and set aside its order denying petitioner’s motion for change of venue from Los Angeles County to San Diego County, and to grant such change. The motion was interposed in an action instituted by plaintiffs, Herman *103 Earl Wooten II, a minor, by Herman Earl Wooten...
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*110 Opinion Plaintiffs Harvey S. Whistler and Georgeanna K. Whistler, husband and wife (hereafter Whistler) filed their amended complaint setting forth eight causes of action. The first cause of action alleges in substance that in April 1963 Whistler entered into a contract in writing with defendant Ondulando Highlands Corporation (hereafter Ondulando) for the purchase of a...
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Opinion This appeal is from a judgment awarding plaintiffs damages against defendants on the complaint, and against defendants on their cross-complaint. Plaintiffs Frank and Pensanti, doing business under the name of “Best-Bilt Construction Co.,” had contracted with defendants to build a commercial building (nursery school) at 1311 North Harvard Street 1 in Los Angeles. Defenda...
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Opinion theft by the Superior Court of Los Angeles County in case #272943. The evidence was that contained in the transcript of the preliminary hearing, submitted by stipulation. In 1963 petitioner was found guilty of attempted grand A part of that evidence was defendant’s detailed confession. The testimony of the complaining witness, which established the corpus delicti, was otherwi...
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*150 Opinion Statement of the Case Plaintiff brought his action against defendants Marine Terminals Corporation of Los Angeles (hereafter Terminals) and Oriana, Inc. (hereafter Oriana), seeking damages for personal injuries sustained while he was acting as a linesman in the course of docking the ship Oriana. Plaintiff’s cause of action was based upon negligenc...
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Opinion Petitioner was charged with possession of a restricted dangerous drug, to wit, amphetamine, in violation of Health and Safety Code section 11910, and with possession of marijuana, in violation of Health and Safety Code section 11530. A motion to suppress evidence pursuant to Penal Code section 1538.5 was denied by the superior court and we issued an alternative writ of prohibition...
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Opinion Appellant appeals from a judgment entered pursuant to a jury verdict convicting him of violation of Penal Code section 211a, armed robbery. The robbery occurred at approximately 2 a.m. on June 20, 1969, at a service station known as Larry’s Douglas Station, located at Ventura and E Streets in Fresno. Two employees, one Jackson and one Gomez, were working on an automobile when they were ...
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Opinion Procedural History An indictment was filed against petitioner Harry Ming, and codefendants Wildenhus, Stout, Ryan, Layton and Brown, charging them in count I with *209 possession of marijuana for sale (Health & Saf. Code, § 11530.5); in count II with conspiracy to sell marijuana (Pen. Code, § 182); and in count III with sale of marijuana (Health & Saf. Code, ...
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Opinion Louis Mintz (“Louis”) died on July 20, 1967. This appeal is from a judgment entered after a consolidated trial in four separate actions which resulted from Louis’ alleged failure to keep a promise to his predeceased wife Bessie Mintz (“Bessie”), to dispose of his estate in a certain fashion. There is no need to set forth in detail just who sued whom for what. Common questions of l...
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Opinion Following the filing of a petition under section 3100.6 of the Welfare and Institutions Code, a hearing was held to determine whether appellant was a narcotic addict or in imminent danger of becoming addicted. *241 The court denied appellant’s motion to dismiss the petition on the grounds that he was unlawfully taken into custody and that the evidence of addiction was unconstitutional...
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Opinion After a court trial, the defendant was found guilty of a violation of section 11530 of the Health and Safety Code. Proceedings were suspended and he was placed on probation for a period of three years. He appeals from the judgment and from an order denying a motion for a new trial. The latter appeal must be dismissed. Defendant’s only point on appeal is that a marijuana cigarette, whi...
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Opinion Alice A. Kantel (hereinafter the mother) died June 27, 1964, leaving a will dated April 21, 1961, as modified by a codicil executed a few days before her death. The will purports to dispose of three parcels of real property. One (a ranch) was devised to her son, defendant Frederick W. Kantel. Another (also a ranch) was devised to defendant’s two sons. The third (the homeplace where the ...
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*258 Opinion Plaintiffs Weisz Trucking Co., Inc., and John Weisz, Jr., appeal from the adverse judgment in this action for breach of contract brought against- defendant Wohl Construction. Defendant was the prime contractor on a large construction project. The subcontract sued upon required plaintiffs to perform specified work for which defendant agreed to pay them the sum of...
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*268 Opinion Defendant Jesse Dale Wells appeals from the judgment entered upon the verdict of a jury convicting him of child molestation (Pen. Code, § 288), and of assault with intent to rape (Pen. Code, § 220). Defendant was charged with three prior felony convictions: (1) burglary in 1949; (2) burglary and grand theft in 1944; and (3) burglary in 1960. He admitted the first two of the charg...
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Opinion Defendant is appealing from the conviction of three counts (I, II and DC) of grand theft (Pen. Code, § 487, subd. 1) and two counts (VI and VII) of forgery by fictitious name (Pen. Code, § 470). Defendant was found not guilty of the remaining four counts of the nine-count information. All of the violations are felonies. After waiver of trial by jury, the case was submitted on the transc...
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*292 Opinion This action arises out of a contract between plaintiff and defendant wherein plaintiff and one Prothro (not a party to the action or this appeal) agreed to advance $40,000 to defendant and defendant agreed to harvest and deliver to plaintiff hay to be grown on certain described lands. Plaintiff agreed to market the hay and to credit defendant with the proceeds less c...
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*298 Opinion Based upon a complaint filed by the district attorney pursuant to Business and Professions Code section 3131, and upon a written stipulation of fact, the Superior Court of Imperial County issued a preliminary injunction against the defendant, Eller Telecasting Company of Arizona (Eller), the pertinent portion of which reads: “It is hereby ordered, adjudged and decreed that the de...
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*308 Opinion Defendants appeal from a judgment determining the rights and obligations of insurance carriers respecting liability for loss occasioned by an accident resulting in injuries to a man named Toombs, and the death of a man named Flores, while they were unloading a truck-trailer at a construction site. Defendants Fidelity and Casualty Company of New York, hereinafter...
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Opinion Defendant has appealed from the denial of his motion to vacate a judgment under which he was convicted and sentenced for burglary in the second degree following his plea of guilty, and from the denial of his motion to vacate that plea. He contends that he was denied the effective assistance of counsel because his attorney, in recommending the guilty plea, failed to consider the de...
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Opinion ELKINGTON, J. Defendant Alvin Clayton, Jr., was charged in an information with a violation of Health and Safety Code section 11501 (transportation of a narcotic). He was found “guilty of the offense charged in the Information on file herein, a violation of section 11500 of the Health and Safety Code.” (Italics added.) Section 11500 proscribes possession (not transportation, as doe...
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13 Cal.App.3d 339 (1970) 91 Cal. Rptr. 630 MARGARET B. COCHRAN, Plaintiff and Respondent, v. HOWARD M. COCHRAN, Defendant and Appellant. Docket No. 26982. Court of Appeals of California, First District, Division One. December 8, 1970. *342 COUNSEL Walter T. Winter and Peter Schwarz for Defendant and Appellant. Cyril Saunders for Plaintiff and Respondent. OPINION SIMS, J. Defendant Howard M. Cochr...
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Opinion This case was transferred to this court upon certification from the Appellate Department of the Superior Court of the County of Sonoma on an appeal to that court from a judgment of the municipal court. On March 6, 1964, Patrick McCaslin contracted with George Nitzberg to perform sheetrock and plastering work on Nitzberg’s home for the sum of $1,385. About five days after the ...
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Opinion This is an appeal by the landowner, defendant in an eminent domain proceeding. We reverse the judgment upon the authority of People v. Silveira, 236 Cal.App.2d 604 [46 Cal.Rptr. 260]. The essential facts of the case at bench are not in dispute. Respondent filed the action in eminent domain which results in the appeal now before us to acquire property for the construction of the Foothill Fr...
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Opinion On April 28, 1961, June Fishbein, defendant Gerald Fishbein’s wife of eight years died testate. June’s Will, dated March 28,1961, and which was admitted to probate on October 29, 1963, after a contest by *385 defendant, bequeathed all personal clothing, furs, jewelry, household furnishings and furniture to her mother, plaintiff Minnie Chuba, and further directed that “ ‘[m]y community...
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Opinion Plaintiff Dealers Installation Service, Inc., a corporation, sued for a refund of $4,403.10 (tax $3,299.87, interest $773.24, and penalty $329.99) which it claimed had been illegally imposed upon it under the Motor Vehicle Transportation License Tax and won judgment in the trial court. From that judgment defendant State Board of Equalization of the State of California (hereinafter...
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Opinion This is an appeal from a judgment for defendants in an action in multiple causes brought by unrelated plaintiffs seeking damages from defendant restaurant proprietors for allegedly causing plaintiffs to contract infectious hepatitis. The crux of the appeal is the claim that proximate cause for the common illness allegedly suffered by the several plaintiffs was established as a mat...
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Opinion Plaintiffs appeal from a judgment entered after defendant’s general demurrer to their second amended complaint was sustained with leave to amend and no amendment was filed. *412 There are two sets of plaintiffs. Those whom we shall call the “individual plaintiffs” (Robert Coffman, Robert Fredericks and Owen C. Brown) identify themselves as police officers who were in...
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Opinion These two separate appeals are consolidated in this court for the purpose of this decision. The charges against all appellants result from a burglary-robbery in Santa Barbara on February 2, 1968. The victims were one William E. Johnson and his wife Pearl. The evidence supportive of the convictions for the several crimes need not be detailed at this point. It was sufficient to prove th...
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*442 Opinion Defendants seek a writ of mandate to compel respondent court to vacate its order transferring their trial out of the Superior Court of the City and County of San Francisco to the Superior Court of the County of San Diego. On February 16, 1970, defendants, three inmates of the California Correctional Training Facility, at Soledad, in Monterey County, were indicte...
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Opinion JEFFERSON, J. An action for personal injuries was instituted by Gilbert D. Montano, both individually and as guardian ad litem for Edward Joseph Montano, a minor, against defendants City of South Gate (hereinafter referred to as the City) and Everett Allen Shong. On October 28, 1968, following a jury trial, judgment was entered in favor of Gilbert D. Montano for $13,000 and in favor o...
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Opinion This is an. appeal in an eminent domain case by defendant property owners upon the issue of severance damages only. 1 The jury rendered its verdict that the remaining property had suffered no severance damage and judgment was entered accordingly. Respondent acquired approximately 10 acres for the San Gabriel River Freeway across defendants’ land consisting of a sin...
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Opinion On October 14,1969, two police officers were stationed in a room adjoining the men’s restroom in a public park. The floor of the room is higher than the floor of the restroom. The wall separating the room from the restroom contains an opening covered with transparent material through which the restroom can be seen from the adjoining room. The opening is at a height which enables someone...
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Opinion In April 1968, Barry Froschauser, through his guardian ad litem, brought suit against the present plaintiff (Mascarin), George *464 Francis Train and George Train, and sundry Does, alleging negligence 1 on the part of the defendants in furnishing potassium chlorate to plaintiff, as a result of which he was injured. Defendant Hart was not made a party to tha...
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Opinion Libel action for $2,000,000 by Samuel W. Yorty against Otis Chandler, Los Angeles Times, The Times-Mirror Company (sued as Times Mirror Corporation), and Paul Conrad, in which plaintiff complains of a cartoon drawn by Conrad and published on the editorial page of the Los Angeles Times. The trial court ruled on demurrer that the cartoon was not defamatory and entered judgment for d...
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Opinion This is an appeal from an order denying a petition for relief under section 946.6 of the Government Code from the tardy filing of a claim under section 911.2 of that code. On March 15, 1969, appellants’ child was delivered at the Los Angeles County-University of California Medical Center (Medical Center). Allegedly by reason of medically inappropriate procedures, a depressed ...
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Opinion Following a nonjury trial, appellant was found guilty of count I: possession of heroin, a narcotic, in violation of Health and Safety Code, section 11500, and count II: driving a vehicle on a highway while under the influence- of, or addicted to the use of, a narcotic, in violation of Vehicle Code, section 23105—both felonies. Two prior nonnarcotic felony convictions were charged. The c...
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Opinion The defendants, Daniel, a trucker, and Henson, his driver, appeal from a judgment of the trial court awarding damages to plaintiff for collision loss to its truck trailer and contents. On June 9, 1963, Daniel entered into a written agreement (herein called the “original agreement”) with plaintiff, a farmer. It provided that Daniel was to haul grain for plaintiff in semi-trail...
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Opinion This appeal is from a judgment entered pursuant to a jury verdict in favor of plaintiff minor in the sum of $20,000. The jury also answered “no” to defendants’ special interrogatory whether the minor was an employee at the time of the accident. Seven-year-old Calvin Miller, the plaintiff, lived with his parents and three brothers and sisters on a dairy ranch owned by defendants at the...
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*510 Opinion his is a companion case to the action entitled Calvin Lynn Miller, a minor, by and through his Guardian ad Litem, Wilda Lo-Rein Miller, Plaintiff and Respondent, v. Frank Cabral and Marie Cabral, Defendants and Appellants, in which an opinion was filed this day, ante, page 503 [91 Cal.Rptr. 776]. That case involved an action against the Cabrals to recover ...
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Opinion Plaintiff appeals from a summary judgment entered in favor of defendants in a personal injury action. The issue on appeal, as in the court below, is whether plaintiff, a domestic employee of defendants at the time of her injury, is precluded from bringing the subject action in the superior court because she was an employee who came under the workmen’s compensation provisions of the Labo...
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*525 Opinion Appellant, Greater Westchester Homeowners Association, Inc., together with some 669 individually named persons, filed a first amended complaint to which respondent, City of Los Angeles demurred and filed a notice of motion to strike some paragraphs from the amended complaint. The demurrer and motion to strike were heard together, the court sustaining the demurrer and...
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*531 Opinion JEFFERSON, Acting P, J. Defendant was charged by information with possession of heroin, in violation of section 11500 of the Health and Safety Code. Defendant waived his right to trial by jury and, pursuant to stipulation, the matter was submitted to the court on the proceedings had at the pre.liminary hearing. Both sides offered additional evidence at the time of trial. The ...
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Opinion Plaintiff-appellant L. S. Patton (plaintiff) brought this action for declaratory relief against the Board of Harbor Commissioners of the City of Los Angeles (Board), Bernard F. Caughlin (Caughlin), in his official capacity as General Manager of the Harbor Department of the City of Los Angeles (General Manager and Department), and the City of Los Angeles (City). His first amended c...
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Opinion SELBER, J. * The People seek relief by way of mandate pursuant to section 1538.5, subdivision (o) of the Penal Code from an order of the respondent court suppressing certain evidence in a criminal action against certain defendants, who are the real parties in interest herein. *547 The three exhibits which were ordered suppressed by respondent court and which constitute the grava...
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*552 Opinion The Story of the Wooly White Fly -and The Warrantless Unwarranted Search Edward and Eleanor Vidaurri,. charged with cultivating marijuana (Health & Saf. Code, § 11530.1) are entitled to a writ of mandate requiring the superior court to suppress illegally obtained evidence. On May 21, 1970, California Agriculture Department Inspector Tracy R. Baker...
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Opinion In this proceeding an alternative writ of mandate was granted to review petitioner’s contention that the superior court abused its discretion and acted in excess of its jurisdiction by its order denying petitioner’s motion for a writ of assistance permitting it to collect rents upon real property condemned to petitioner by a final order of condemna *565 tion and permi...
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Opinion Appellant was charged in four separate counts with kidnapping (Pen. Code, §207), rape (Pen. Code, § 261), possession of a restricted dangerous drug (Health & Saf. Code, § 11910) and assault with a deadly weapon (Pen. Code, § 245). Following the waiver of a jury trial and a submission on the transcript of the preliminary hearing, appellant was found guilty of the count alleging an ...
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Opinion Raymond Stewart Tanner appeals from a judgment of conviction of assault with intent to commit murder (Pen. Code, § 217) entered upon his plea of guilty. The sole issue raised by this appeal is the *598 correctness of the trial court’s refusal to grant appellant’s motion to withdraw his plea of guilty and enter instead a plea of not guilty by reason of insanity. ...
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Opinion The People appeal from an order, made pursuant to Penal Code section 995, which, among other things, 1 sets aside a count of second degree felony murder (see Pen. Code, §§ 187, 189) against Gilbert Anthony Calzada. Calzada has also been charged with vehicular manslaughter (Pen. Code, § 192, subd. 3) and with violation of Vehicle Code section 23105. The appeal lies. (Pen. Code, § 123...
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*613 Opinion Defendant appeals from judgment, after jury verdict, of conviction of violation of section 211, Penal Code (first degree robbery). 1 Questions Presented 1. Assistance of counsel was effective. 2. No error in instruction and argument on conspiracy. 3. No abuse of discretion in allowing joint trial of defendant and a codefendant. 4. Habitual criminal adjudication proper...
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Opinion Plaintiffs obtained a declaratory judgment as to the proper measure of damages under an uninsured motorist clause of an insurance policy issued by defendant Wilshire Insurance Company. Defendant appeals. Wilshire Insurance Company (Wilshire), a California corporation, issued its automobile liability insurance policy to Elena Perez (Elena) and her husband for a period includin...
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Opinion This appeal is from an order denying appellant’s motion for an order requiring the Sheriff of Fresno County to deliver to appellant funds held by him pursuant to writ of attachment issued in this action. This is an appealable order (Code Civ. Proc., § 904.1, subd. (e).) The sheriff was not joined in the motion and did not appear. The facts surrounding the transfer will be set out and ...
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Opinion This is another of the many reported cases arising under the so-called “uninsured motor vehicle” statute (Ins. Code, § 11580.2; see cases construing statute in Shepard’s California Citations, Statutes). The issues in this case have not been the subject of an qjfinion by the California Supreme Court and, as noted below, our conclusion with respect to issue No. 2 is contrary to that reach...
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Opinion Plaintiff-appellant was the surety upon a fidelity bond issued to Goodyear Tire & Rubber Company, indemnifying Goodyear against the theft or embezzlement of its property by any of its employees. Over a period of some two years, one Scott, a Goodyear warehouse foreman, took from his employer a number of heavy duty equipment tires. He concealed the thefts by juggling of the books. W...
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Opinion Catherine Skivers (hereinafter “plaintiff”) appeals from an adverse judgment in her action against the State of California. *654 The undisputed facts, which are set forth in a settled statement as well as in a conventional record on appeal, include these: Plaintiff buys from California Industries for the Blind (“CIB”), a state agency, products manufactured by blind persons pursuant ...
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Opinion The People petition for a writ of mandate to compel respondent superior court to set aside its order of October 9, 1970, dismissing criminal action No. 6920 against real parties in interest. This court issued an alternative writ of mandate on November 2, 1970. No return was filed in opposition to the issuance of a writ in this matter, nor did the respondent or the real party ...
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Opinion Plaintiff appeals from an order of dismissal entered pursuant to the provisions of section 583 of the Code of Civil Procedure for failure to bring his suit to trial within five years of filing. 1 He contends that the five-year period was tolled because the court failed promptly to reset the case for trial after plaintiff timely exercised a peremptory challenge pursuant to Code of Civi...
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Opinion This is an appeal by the City of Oakland, its police and fire retirement board, city manager and city auditor (hereafter collectively City) from a judgment granting declaratory relief and a peremptory writ of mandate to respondents, compelling the City to count all time spent in work-incurred disability retirement status as a credit towards years of service retirement time. The City con...
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*708 Opinion Factual Background On July 10, 1967, the appellant filed a three-count complaint in the Municipal Court of the Los Angeles Judicial District seeking a money judgment in the amount of $2,237.46. The complaint alleged that the appellant was the assignee of the First National Bank of Boston; Norwood Mills; Rudin and Roth, and Terra International. The matte...
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Opinion Defendant appeals from a judgment of conviction entered after a jury verdict finding him guilty of assault with a deadly weapon (Pen. Code, § 245). 1 He contends that: 1) the failure of his trial counsel to object to the admission of certain statements he made in custody after he refused to sign a written waiver of his Miranda rights does not prevent him from raising the matter for ...
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Opinion Simultaneously with the direct appeal (People v. Rinegold, No. 8525, ante, p. 711 [92 Cal.Rptr. 12]) from the merits of a judgment of conviction entered on a jury verdict finding him guilty of assault with a deadly weapon (Pen. Code, § 245), this court has been directed to consider a petition for writ of habeas corpus subsequently filed. 1 Although we have concluded that there a...
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Opinion On May 7, 1964, plaintiffs, Henry and Virginia Stella, filed a complaint for rescission of an agreement to purchase real estate, cancellation of a promissory note and trust deed executed in connection *735 with said agreement, and damages for negligence in construction of a house which was the subject of said agreement. Several parties including Great Western Savings ...
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13 Cal.App.3d 742 (1970) 92 Cal. Rptr. 105 THE PEOPLE, Plaintiff and Respondent, v. CHARLES LEE JOHNSON, Defendant and Appellant. Docket No. 17812. Court of Appeals of California, Second District, Division Three. December 22, 1970. *743 COUNSEL Richard S. Buckley, Public Defender, James L. McCormick, James M. Epstein and Harry W. Brainard, Deputy Public Defenders, for Defendant and Appellant. Tho...
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Opinion The City of Oakland, acting by and through its board of port commissioners, as condemner, has appealed from judgments rendered in favor of landowners in 17 actions which were consolidated for trial. The actions were brought to “acquire an air easement in the air space above the surface of the hereinafter described real property for a public use, to wit, for airport purposes, in order to p...
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*789 Opinion This case presents the question as to whether a guarantor is released from his obligation on a written guaranty by the creditor’s participation in the Chapter XI bankruptcy proceeding (11 U.S.C. § 701 et seq.) of the principal obligor which resulted in the exoneration of the principal obligor from further liability by the issuance of stock pursuant to the principal obligor’s plan...
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*812 Opinion This case involves an organization known as “Americans Building Constitutionally” (hereinafter ABC). ABC had as its purpose and function the preparation, presentation and sale of a trust-foundation scheme purportedly designed to save for the creator federal estate taxes, state inheritance taxes and probate costs and expenses. Defendant Walsh was a consultant to ABC. The ABC pla...
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*821 Opinion On November 25, 1968, following an apprehension by the police and admission to the Los Angeles County central jail infirmary for the making of a physical examination with respect to narcotics addiction, a petition for commitment (pursuant to § 3100.6, Welf. and Inst. Code) 1 was filed by the District Attorney of Los Angeles County. After two continuances the matter was set to b...
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Opinion Plaintiff appeals from judgment of nonsuit entered in an action for personal injuries arising out of an incident that severed a portion of the ring finger of her left hand. Around 6 p.m. on May 10, 1967, plaintiff and her husband went to defendant restaurant for dinner; they had been there many times before. Normally there is an attendant at the front door who will assist people enter...
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13 Cal. App. 3d 836 (1970) 91 Cal. Rptr. 915 WILLARD LEE EBERHARD, Plaintiff and Appellant, v. VIGGO BRUHN, Defendant and Respondent. Docket No. 35282. Court of Appeals of California, Second District, Division Two. December 28, 1970. *838 COUNSEL Archbald, Zelezny & Spray, Joseph L. Spray and Edward L. Lascher for Plaintiff and Appellant. Halde, Barrymore & Stevens, Tom Halde and Ronald C...
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Opinion This is an appeal from a judgment for plaintiff-respondent, State of California, in the sense of its Department of Employment (the Department), against defendant-appellant, General Insurance Company, a surety company (General), on its surety bond for unpaid unemployment insurance contributions due from a subcontractor on a public works contract and interest, penalties and attorney...
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*865 Opinion Respondent brought this action to enjoin a strike and related activities by employees of the State of California who work at San Francisco State College. Defendants appeal from a summary judgment enjoining such activities as prayed. The undisputed facts include these: 1 Respondent, a duly constituted agency of the State of California, is charged by la...
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Petitioners for a writ of mandate are defendants in an automobile damages case which was filed in the superior court in San Francisco. A motion for change of venue to Sonoma County was granted on March 19, 1969, and notice of the order was served on plaintiffs on March 20, 1969. The costs and fees which are required to be paid in order to effect transfer under Code of Civil Procedure section 399 w...
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Opinion Joe Brown appeals from a judgment entered after a jury found him guilty of murder (Pen. Code, § 187) in the killing of a San Francisco bus driver. Brown and two alleged coperpetrators, Lewis and McFarland, were brought before the juvenile court upon allegations that they came within the court’s jurisdiction by reason of having committed the homicide. Before the jurisdictional hear...
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Opinion This is an appeal from the denial of a petition for administrative mandate under section 1094.5 of the Code of Civil Procedure to review and vacate a decision of the State Board of Education revoking appellant’s teaching credential and denying her application for a different credential. We affirm the judgment. Facts Appellant held a teaching credential issued by the California Sta...
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Opinion This is an appeal from a conviction of possession of amphetamine in violation of Health and Safety Code section 11910. Appellant does not question the sufficiency of the evidence to support the conviction. He contends that evidence consisting of a container of amphetamine and a hypodermic n.eedle was illegally obtained and hence improperly admitted, and that a confession obtained from h...
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Opinion After two mistrials a jury found defendant guilty of second degree robbery. He appeals from the judgment. On a downtown street in Stockton Mrs. Alice Neil was the victim of a daylight purse-snatching. While the robber was yanking at her purse, Mrs. Neil looked directly into his face. The person was a male Negro wearing a dark jacket and corduroy cap. In court Mrs. Neil identified defe...
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Opinion Defendant Gregory Valerio and a codefendant, Debra Snipes, his sister-in-law, were charged and convicted by a jury of unlawful possession of marijuana (Health & Saf. Code, § 11530) and unlawful transportation of marijuana (Health & Saf. Code, § 11531). The jury also found it true that a motor vehicle was involved in or used incidental to the *917 commission of the off...
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Opinion This is an appeal from a judgment of the Los Gatos-Campbell-Saratoga Judicial District Municipal Court denying appellant’s recovery of $1,257.21 of medical expenses under the medical payment provision of a homeowner’s insurance policy issued by respondent to Paul K. Young and Delores R. Young. On May 6, 1968, on a sidewalk outside the Youngs’ home in Los Gatos, a dog owned by the Youngs bi...
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Opinion On April 18, 1968, Communications Workers of America, Local 9408 went on strike against Pacific Telephone and Telegraph Company and established its picket line. Virginia M. Jost was then a member of the union and employed by Pacific Telephone and Telegraph Company. During the strike, the plaintiff crossed the picket line and worked for her employer without union authorization. *Supp. 9Pur...
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Opinion Maurice and Alberta Bigelow, plaintiffs in an action for damages for personal injuries against Stephen Smik, Jr., appeal a judgment of the trial court dismissing their action because of their failure to bring suit within the one-year limitation period. (Code Civ. Proc., § 340.3.) On *12 20 August 1963 plaintiffs and defendant Smik were involved in an automobile accident in Los Angeles...
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Opinion James Marshall Taylor and Margaret Elizabeth Taylor Cave, the beneficiaries of two testamentary trusts created by the will of their father, Reese H. Taylor, deceased, appeal from those portions of an order entered February 24, 1969, allowing the co-trustee of the trusts, Union Bank, additional compensation in the amounts of $6,900 and $6,790, chargeable against their respective trust estat...
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Opinion Statement of the Case Defendant was charged by information with the robbery (Pen. Code, § 211) of one Reese Johnson while armed with a deadly weapon, to wit, a butcher knife. He entered a plea of not guilty. A motion to suppress evidence was made and such motion was denied. Thereafter, the information was amended to allege prior convictions of burglary in the State of North Dakota o...
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Opinion Statement of the Case By consolidated informations the defendant was charged with violation of section 11500 of the Health and Safety Code (possession of heroin, count 1), with violation of section 11555 of the Health and Safety Code (possession of device, etc. for unlawfully injecting narcotics, count 2), a misdemeanor, with violation of section 11721 of the Health and Safety Code ...
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Opinion The parties to this litigation were married when appellant was but 17 years old. In applying for the marriage license, appellant male represented himself to be 18 years of age. Since he had his mother’s written consent, the license issued without an order of the superior court. A court order granting permission to marry is required, in addition to parental consent, when the male is unde...
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Opinion Defendant was charged in an information with attempted burglary (Pen. Code, §§ 664, 459). Trial by jury was waived, and the matter submitted on the testimony contained in the transcript of the preliminary hearing together with exhibits. Defendant was found guilty. Proceedings *63 were suspended before pronouncement of sentence, and an order was made granting defendant probation. The a...
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*72 Opinion By information defendant was charged with violations of Health and Safety Code, section 11500 (count I—possession of heroin) and section 11501 (count II—transporting a narcotic). A motion to set aside the information under Penal Code section 995 was denied, and two motions to suppress evidence under Penal Code section 1538.5 were denied. By stipulation the case was tried before th...
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6 Cal. App. 3d 79 (1970) 85 Cal. Rptr. 617 THE PEOPLE, Plaintiff and Respondent, v. ROY LEE COLBERT, Defendant and Appellant. Docket No. 16028. Court of Appeals of California, Second District, Division Five. March 27, 1970. *81 COUNSEL Richard H. Levin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney Ge...
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Opinion Defendant and codefendant Joseph Edward Gonzales were charged by information with having committed burglary at John Marshall *89 High School (count I) (Pen. Code, § 459), and receiving stolen property (count II) (Pen. Code, § 496). Motions were made under sections 995 and 1538.5 of the Penal Code to set aside the information and to suppress evidence. The 995 motion was granted as to c...
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6 Cal.App.3d 96 (1970) 85 Cal. Rptr. 566 GORDON J. GOTCHER et al., Plaintiffs and Appellants, v. CURTIS E. METCALF, Defendant and Appellant. Docket No. 1110. Court of Appeals of California, Fifth District. March 27, 1970. *98 COUNSEL Adon V. Panattoni for Plaintiffs and Appellants. Hardin, Fletcher, Cook & Hayes and Cyril Viadro for Defendant and Appellant. OPINION COAKLEY, J. Helen L. Gotche...
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Opinion This is an appeal from a judgment directing issuance of a peremptory writ of mandate pursuant to section 1094.5 of the Code of Civil Procedure. David Kikkert and Associates, Inc. (hereinafter “Kikkert”) holds a *115 collection agency license issued by the Director of the Department of Professional and Vocational Standards (“director”) under the Collection Agency ...
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Opinion Defendant appeals following judgment of conviction entered after court trial on one count of armed robbery. (Pen. Code, § 211.) Defendant contends that his confession to the above charge was obtained in violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], and that its introduction in evidence over his objectio...
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Opinion Plaintiffs, the widow and three children of Albert Whinery, deceased, have appealed from a judgment based on a jury verdict, and from an order denying a motion for judgment notwithstanding the verdict, in an action brought by them against defendant Southern Pacific Company for damages for the wrongful death of the deceased. The material facts are conceded. Deceased was a pass...
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6 Cal.App.3d 134 (1970) 85 Cal. Rptr. 693 NORTHWESTERN TITLE SECURITY COMPANY, Plaintiff and Respondent, v. ALLAN BOUD FLACK, Defendant and Appellant. Docket No. 26082. Court of Appeals of California, First District, Division One. March 31, 1970. *139 COUNSEL Peter Hunt, John J. Bartko and Burd, Hunt & Friedman for Defendant and Appellant. Miller, Starr & Regalia and Edmund L. Regalia for...
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*152 Opinion Plaintiff taxpayer has appealed from a judgment which denied it recovery of a portion of its corporate franchise taxes (Rev. & Tax. Code, § 23151 1 ) assessed and paid for the taxpayer’s fiscal income years ending on January 31st in the years 1955 through 1960. The income upon which the tax for each year was based was that portion of the taxpayer’s total n...
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Opinion Plaintiff Joseph William Albrecht appeals from a judgment entered upon a defense verdict returned by the jury in this action for personal injuries. During the early morning of March 14, 1966, a pickup truck driven by respondent Gilbert Stuart Broughton collided with appellant, a boy then aged 14, who was riding a bicycle. Respondent was driving to work when the collision occurred, at ...
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Opinion On June 24, 1968, the three appellants, each a young man under 21 years of age, were arrested for violation of subdivision 1 of section 261 of the Penal Code (sexual intercourse with a female under the *197 age of 18 years.) 1 Appellants were apparently released from custody immediately and instructed to appear in municipal court June 27, 1968. When they ap...
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Plaintiffs Marvin Miller and Covina Publishing, Inc., a corporation of which Miller is an officer, director and shareholder, filed a complaint May 22, 1968, in which the corporate plaintiff sought a declaration that a book entitled “Intercourse” is not obscene and both plaintiffs sought an injunction prohibiting defendant through any of its agents from prosecuting plaintiffs for publishing, distri...
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Opinion Appellant Thomas Stimpel is a Seventh Day Adventist. A tenet of his religion is that he must not work from sunset Friday to sunset Saturday. Stimpel was employed by the State of California as a construction inspector for its Department of Water Resources on September 1, 1966. In that capacity he was required to make detailed technical inspections of projects under construction in the st...
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*214 Opinion. Statement of the Case Appellant James Fratianno entered a plea of guilty to a charge of conspiracy to commit petty theft. When the trial judge thereafter indicated his intention to deny appellant’s application for probation, appellant made a motion to withdraw his plea of guilty. After reviewing the affidavits and other evidence offered in support of the mo...
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6 Cal. App. 3d 224 (1970) 85 Cal. Rptr. 729 GILBERT E. McMULLEN, JR., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 35708. Court of Appeals of California, Second District, Division Four. March 31, 1970. *225 COUNSEL McGurrin & Denny and Geo. V. Denny III for Petitioner. No appearance for Respondent. Evelle J. Younger, Distr...
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Opinion Plaintiffs appeal from judgment in seven actions consolidated for trial and appeal, denying them charges for furnishing water to defendant fire districts’ fire hydrants. Question Presented Are the fire districts liable for water charges in implied or quasi-contract after express rejection of liability? Record Plaintiffs are two county water districts organized ...
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*243Opinion Appellant S.A. is a minor, now 19 years of age. From three petitions, contemporaneously filed by her in the juvenile court, the following appears. On three occasions, the first on May 24, 1965, she was adjudged by that court to have come under the provisions of Welfare and Institutions Code section 601. The conduct which formed the basis of the adjudications was, consecutively, stayin...
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Opinion Plaintiff filed an action against defendant Richard Bihr for damages for personal injuries. Richard then quitclaimed to his wife, defendant Norma, all his interest in real property in Richmond owned in joint tenancy by himself and Norma. There was no consideration for this deed, and it was given and received with knowledge that it was intended to hinder, delay and defraud creditor...
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Opinion Appellants, petitioners below, are three men who from time to time have been employed by the Department of Water and Power of the City of Los Angeles (hereinafter called the Department). Respondents *257 are the Board of Civil Service Commissioners of the City of Los Angeles (hereinafter called the Civil Service Commission), the Commissioners of the Department of Wate...
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*271 Opinion This appeal is from two orders of the superior court respectively denying without prejudice an alternative writ of mandate and temporary stays of an order of the Savings and Loan Commissioner approving the merger of three savings and loan associations. 1 Petitioner is a substantial minority shareholder in one of the two nonsurviving associations who objected unsuccessfully at t...
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Opinion A jury found Robert E. Lee and James Williams guilty of robbery (Pen. Code, § 211). Williams admitted a prior conviction, and he appeals from the judgment in which he was sentenced to- prison. Two issues were raised on appeal: (1) that the identification of the appellant as one of the robbers was constitutionally improper; and (2) that the extrajudicial statement of his codefendant Lee was...
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Opinion Defendant James Garnett was convicted after a court trial of possession of marijuana, a violation of Health and Safety Code section 11530. He appeals from the judgment and sentence thereafter rendered. The questions presented relate to the legality of a search of certain premises and of the search warrant upon which the search was based. A police officer’s affidavit, in support of t...
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Opinion The accusatory pleading charged defendant with a violation of section 278 of the Penal Code in that from November 10, 1966, through March 12, 1968, he did “maliciously, forcibly and fraudulently take and entice away a minor child, Nancy Viola Lawson, aged nine years, with intent then and there to detain and conceal such minor child from Loretta Sue Lawson, the mother of such child.” Def...
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Opinion An information charged defendant with possession of heroin (§ 11500, Health & Saf. Code), and alleged one prior felony conviction. His motion to suppress evidence under section 1538.5, Penal Code, was heard before the trial of the cause. One witness, Officer Michael Davis, testified. The trial court found as a matter of law that the evidence was unlawfully seized, granted the motion and d...
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Opinion Cross-complainant (Mrs. Patterson) was involved in an automobile collision. The passenger and driver of the other vehicle filed separate actions against her for damages for personal injuries sustained in the accident. Mrs. Patterson thereupon tendered defense of the actions to the Insurance Company of North America (appellant) and upon its refusal to accept, filed a “Cross Complai...
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Opinion Plaintiff appeals from a judgment entered upon a jury verdict for defendants in a personal injury action arising out of a two-car rear-end collision. Plaintiff charges that the trial court erred in instructing the jury relative to the provisions of section 22107 [signaling before turning] and section 22109 [signaling before stopping] of the Vehicle Code, and that defendant was negligent as...
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Opinion Plaintiff architects, as the assured under a certificate of errors and omissions insurance issued by Underwriters at Lloyd’s, London, have appealed from a judgment in favor of the underwriters in an action in which they sought to recover damages for breach of contract. The action followed tihe final determination and payment of $374,914.43, a sum in excess of the policy limits, in...
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Opinion This appeal is taken from an order denying appellant William Muller’s' motion to intervene in a superior court action. We find it to be wholly without merit for the reasons: (1) the motion to intervene appears to be an attempt to relitigate matters already finally adjudicated; (2) the motion was not timely (see Hibernia etc. Society v. Churchill, 128 Cal. 633 [61 P. 278]; People v. City ...
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Opinion In a civil proceeding in the superior court following a misdemeanor conviction in a municipal court, defendant was found to be a narcotic addict and was committed to the custody of the Director of Corrections for confinement in a narcotic detention, treatment and rehabilitation facility. (Welf. & Inst. Code, § 3050.) By this appeal from the order of civil commitment, 1 ...
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Opinion A petition was filed in the Stanislaus County juvenile court alleging that Katherine R. was a person coming within the provisions of section 601 of the Juvenile Court Law of California in that she was *356 beyond the control of her parents, having left home and remained away without parental consent. Following a hearing, on August 13, 1969, the minor was declared a ward of the juvenil...
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6 Cal. App. 3d 358 (1970) 85 Cal. Rptr. 679 PEERLESS INSURANCE COMPANY, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; A.E. ACKROYD, Real Party in Interest. Docket No. 35882. Court of Appeals of California, Second District, Division Four. April 6, 1970. *359 COUNSEL Arthur Wasserman for Petitioner. No appearance for Respondent. Le Roy L. Center for Real Party in Intere...
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Opinion A jury convicted defendant of possession of marijuana (Health & Saf. Code, § 11530), a felony, and the court placed her on probation. This is her appeal from the order granting probation, which is a judgment for the purpose of appeal. The notice of appeal also refers to the order denying a new trial, which is not an appealable order. We are required to reverse the judgment be...
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Opinion This is an appeal by the People (under Pen. Code, § 1238, subd. 7), from an order of dismissal entered after evidence was suppressed under Penal Code, section 1538.5. For reasons to follow, we have concluded that the order of dismissal must be reversed. *375 On December 9, 1968, at about 5:15 p.m., Officer Sonntag and his partner were on routine patrol in a marked police vehicle whe...
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Opinion Timothy Peebles and William Pulliam have been charged by a grand jury indictment with conspiracy (Pen. Code, § 182), possessing a destructive device (Pen. Code, § 12303), recklessly and maliciously possessing an explosive in a public place (Health & Saf. Code, § 12304), and placing or using an explosive in or near a school (Health & Saf. Code, § 12305). Peebles and Pulliam mo...
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Opinion Appellant was charged with possession of heroin for sale in violation of Health and Safety Code section 11500.5 and with prior convictions of narcotic possession in 1952 and 1954. A jury returned a verdict of guilty with findings that the priors were true. The appeal is from the judgment of conviction. The unusually voluminous record presented to us includes more than 800 pages of rep...
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Opinion In this appeal by both parties from the judgment below Glasgow Theaters, Inc. (hereinafter referred to as “Glasgow”), appeals from an adverse judgment in the sum of $1,209, and Moving Picture Machine Operators Union Local No. 162 (hereinafter referred to as “Union”) appeals from that portion of the judgment denying relief in the sum of $1,845. Glasgow operates a motion pictur...
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*423Opinion By this appeal from a judgment of conviction entered upon a guilty plea to violation of Health and Safety Code section 11530 (possession of marijuana), defendant challenges the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5.1 This motion was submitted by stipulation on the preliminary hearing transcript which discloses the following facts. On the mornin...
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6 Cal.App.3d 428 (1970) 85 Cal. Rptr. 908 THE PEOPLE, Plaintiff and Respondent, v. PERCY ANDREWS et al., Defendants and Appellants. Docket No. 7942. Court of Appeals of California, First District, Division One. April 8, 1970. *430 COUNSEL Steven L. Hallgrimson, under appointment by the Court of Appeal, for Defendants and Appellants. Thomas C. Lynch, Attorney General, Robert R. Granucci and Louis ...
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Opinion Samuel E. Peek (Peek) appeals from a judgment entered in one of two lawsuits which were consolidated for trial. The first action, brought by AMF Pinspotters, Inc., a corporation, (Pinspotters) against Bimini Bowl, Inc., a corporation, Peek, and Wile Investment Co., a corporation, was a suit on a lease of personal property installed in Bimini Bowl, a bowling establishment, seeking rental pa...
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*451 Opinion Appellant was convicted of assault with a deadly weapon, with intent to commit murder, in violation of section 217 of the Penal Code. He appeals from the judgment entered on the jury’s verdict. The facts, when viewed in the light most favorable to respondent, are these: On June 10, 1967, appellant was playing cards in Harry Player’s Card Room when an argument broke out between ...
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Opinion Defendant Wilbert Earl Stewart, by notice of appeal in the name of Wilbert Earl Steward has appealed from a conviction, following a jury trial, of robbery in the second degree in violation of section 211 of the Penal Code, under which he was sentenced to state prison for the term prescribed by law. His sole contention on appeal is that he was denied the effective assistance of counsel g...
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Opinion Plaintiffs seek judicial intervention under six causes of action (abatement of nuisance, prevention of waste of city funds, injunction against ultra vires acts, declaratory relief in the matter of a secret enact *473 ment, injunction against action allegedly denying due process and equal protection, and declaratory relief in general as to police officers’ duties). Des...
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*478 Opinion The petitioners seek a writ of mandate from this court to require the Superior Court for Los Angeles County to vacate its order of December 23, 1969, staying the entry of a dismissal with prejudice of the complaint filed by Frances M. Dianetti against the petitioners to annul the orders of December 30, 1969, granting the motion of the real party in interest for a lien upon France...
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Opinion Richard F. Davis, Rene Viviani, LeRoy Spaggiari, Edward R. FitzSimmons, Willow Park Public Golf Course, a corporation, and Willow Park Public Golf Course, a limited partnership, who are defendants in the above entitled action, have purported to appeal from an order granting the plaintiffs’ motion to compel Davis, Viviani and Spaggiari to answer at depositions. 1 (Code C...
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*496 Opinion Plaintiff sued for breach of a written contract under which it loaned to defendant a sum certain in yearly installments for the pursuit and completion of her medical studies; plaintiff was given summary judgment against defendant for the total sum advanced plus interest. Defendant appeals from the judgment. The contract in suit was executed on June 20, 1957, pur...
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Opinion Plaintiff Rodolfo Saltares, administrator of the estáte of Aníbal Saltares, deceased, (hereafter “plaintiff”) appeals from a judgment of dismissal entered upon an order sustaining without leave to amend the general demurrer of defendant, Baldo M. Kristovich, public administrator, as *508 the administrator of the estate of Carmen Saltares, deceased, (hereafter “defenda...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 523 OPINION Plaintiff brought this action to impose a constructive trust upon property of the estate of Edna Richards, distributed to that decedent from the estate of Ulysses Grant Richards. Defendants had judgment and plaintiff appeals. Ulysses Grant Richards...
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Opinion Meritplan Insurance appeals a superior court judgment confirming an arbitration award of $4,100 in favor of the Felners, an award based on the uninsured motorist coverage of their liability insurance policy. At the arbitration hearing Meritplan disclaimed liability under the policy, claiming that no physical contact had occurred between the Felner automobile and the unidentified automobil...
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Opinion The petitioner seeks annulment of a decision after reconsideration of the Workmen’s Compensation Appeals Board which reduced her award of temporary disability benefits. Factual Background The petitioner, Katherine Lucile Jeffares, sustained injuries on April 19, 1967, while employed as a part-time park recreation instructor for the city of Culver City. Prior to her injury, in additi...
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Opinion Plaintiff attorneys seek a declaratory judgment nullifying the San Joaquin County Bar Association’s claim to a one-third forwarding fee arising from a piece of legal business which had originated with the bar association’s lawyer reference service. Plaintiffs appeal from a summary judgment requiring them to pay the fee. The appeal comes up on an agreed statement of facts. Pla...
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Opinion This is a paternity action brought by plaintiff, a minor, acting through her natural mother and guardian ad litem. After a trial without a jury, the court found the defendant to be the father of the minor child. Defendant appeals from the judgment. Procedural Background Plaintiff filed this paternity action on September 28, 1965. Defendant filed his answer on October...
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Opinion The present action is by Dorothy T. Quelvog, the surviving wife, and Brian D. Quelvog, only surviving child .of Omen C. Quelvog, to recover damages for his death alleged to have been caused by the wrongful conduct of Verna Clarke and the City of Long Beach (City). The court granted the motion of the City for judgment on the pleadings, and plaintiffs appeal from the ensuing judgmen...
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Opinion This is an action for damages allegedly sustained by plaintiff as a result of his discharge as president of defendant Westminster National Bank. Other defendants include Commercial National Bu ik, into which Westminster merged subsequent to the acts complained of, and. two individuals, Ronald Caspers and Harry Klassman. 1 The superior court sus *596 tained ...
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Opinion By information appellant, Nancy Joyce Meyers, was charged with a violation of section 11500 of the Health and Safety Code (possession of heroin). A motion under Penal Code section 995 to set aside the information was denied. Appellant entered a plea of not guilty and thereafter made a motion to suppress evidence pursuant to Penal Code section 1538.5. In support of the motion it was stipula...
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Opinion This action was brought by a real estate broker, a corporation, against the owners of a ranch for the breach of an exclusive listing agreement. In a trial without a jury defendants prevailed. Plaintiff is appealing from the judgment. The facts of the case, as shown by the evidence which supports the findings of the trial court, will be stated first. *613Prior to 1964 the defendants, Mr. an...
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Opinion A jury found David Ray Brown guilty of sodomy (Pen. Code, § 286), kidnaping (Pen. Code, § 207) and assault with a deadly weapon (Pen. Code, § 245). The trial court reduced the assault with a deadly weapon charge to the included misdemeanor offense of exhibiting a deadly weapon in a threatening manner (Pen. Code, § 417). The court sentenced Brown to state prison on the sodomy and kidnapi...
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6 Cal. App. 3d 626 (1970) 86 Cal. Rptr. 198 MILDRED MYERS, Individually and as Administratrix, etc., Plaintiff and Appellant, v. COUNTY OF ORANGE, et al., Defendants and Respondents. Docket No. 9489. Court of Appeals of California, Fourth District, Division Two. April 16, 1970. *629 COUNSEL Rimel, Harvey & Helsing and Duffern H. Helsing for Plaintiff and Appellant. Adrian Kuyper, County Couns...
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Opinion Defendant appeals from a judgment entered on a jury’s verdict finding him guilty of murder in the second degree. He contends that during the trial errors of law occurred which resulted in a miscarriage of justice. The alleged errors are: that the trial judge erroneously denied defendant’s motion to strike the testimony of Dr. Bryant Rees, an entomologist; that the court improperly...
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Opinion Betty Staley appeals from a judgment denying a writ of mandamus which was entered on January 13,1969. Briefly summarized, the facts are as follows: *677 Appellant worked as a nurse’s aide for 11 days between January 30, 1967, and February 19, 1967. She left, either voluntarily or because she was laid off. She previously had applied for and received unemployment benefits which incl...
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Opinion Christopher Spelio appeals from a judgment of conviction (order granting probation) of a violation of Health and Safety Code section 11530, possession of marijuana. A jury found appellant guilty and his *688 codefendant not guilty. Motions made under Penal Code sections 995 and 1538.5, prior to trial, were denied. On January 7, 1969, at about 12:30 a.m. Officer Clements stopped the ...
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Opinion This is an appeal from a judgment for a final mandatory injunction requiring defendants to remove or lower an addition to a single-family residence, for attorney’s fees, and for court costs. The facts which give meaning to certain concessions of defendants and to their contentions are as follows: Around February 1963 Bensonia Investment Company acquired a 37-vacant-lot subdivision i...
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*704Opinion The Department of Motor Vehicles appeals from a judgment granting a peremptory writ of mandate compelling the department to rescind an order of suspension and restore the license of petitioner. Question Presented The sole question herein is whether a plea of guilty and forfeiture of, bail followed by a dismissal is sufficient to constitute a conviction within Vehicle Code section 13103...
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6 Cal.App.3d 707 (1970) 86 Cal. Rptr. 7 PACIFIC GAS AND ELECTRIC COMPANY, Plaintiff and Appellant, v. PAUL MORSE et al., Defendants and Respondents. Docket No. 12065. Court of Appeals of California, Third District. April 17, 1970. *710 COUNSEL Bledsoe, Smith, Cathcart, Johnson & Rogers, Richard H. Petersen, Richard A. Raftery, Noel Kelly, R.S. Cathcart and Robert Seligson for Plaintiff and Appell...
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Opinion Eight petitioners, graduates of various colleges of osteopathy, 1 filed a petition for writ of mandate directing defendant licensing boards to supply them with forms on which to take examinations for licenses to practice medicine and surgery in this state. Certain of the petitioners later filed an amended petition to be granted reciprocal medicine and surgery licenses o...
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Opinion Defendant, tried by a jury, appeals from a judgment sentencing him to state prison for violation of Penal Code section 667, petty theft by a previously convicted felon. In addition to the charge upon which defendant was convicted, he was also charged with violation of Health and Safety Code section 115.01 (offer to sell narcotics). Both counts were based upon a single transaction. The j...
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Opinion Appellant, Carroll Gene Jarrett, was convicted by jury of attempted forcible rape and attempted incest. Both convictions arose out of a single event involving appellant and his 14-year-old half sister. After hearing, the court found appellant to be a mentally disordered sex offender, *739 suspended criminal proceedings, and ordered him sent to Atascadero State Hospital for diagnostic ...
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Opinion By information defendant was charged in count I with violation of Penal Code section 459 (burglary) and in count II with a violation of Penal Code section 496 (receiving stolen property). Defendant pleaded not guilty. Petitions for a writ of habeas corpus and motions to set aside the information (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5) were denied. Following tri...
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6 Cal. App. 3d 760 (1970) 86 Cal. Rptr. 221 THE PEOPLE, Plaintiff and Respondent, v. CHARLES MICHAEL LOHMAN, Defendant and Appellant. Docket No. 3284. Court of Appeals of California, Fourth District, Division One. April 20, 1970. *762 COUNSEL James H. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attor...
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6 Cal. App. 3d 771 (1970) 86 Cal. Rptr. 406 BILARDI CONSTRUCTION, INC., Plaintiff, Cross-defendant and Respondent, v. SAMUEL R. SPENCER, Defendant, Cross-complainant and Appellant; CITY OF MORGAN HILL, Cross-complainant and Appellant. Docket No. 25560. Court of Appeals of California, First District, Division One. April 21, 1970. *773 COUNSEL Byers & Jacobs and Bruce M. Jacobs for Defendant, C...
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Opinion Defendant Shirley Myles was charged by information with possession of a concealable firearm by a felon. Defendant moved to set aside the information pursuant to Penal Code, section 995, and the court granted the motion. The People appeal from the order setting aside the information. The facts are without dispute. At 1 a.m. on August 21, 1968, Officers O’Sullivan and Damon of the San F...
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*796 Opinion Appellants each signed an instrument entitled “Continuing Guaranty,” by the terms of which they guaranteed the indebtedness of Pacific Empire Loan & Investment Corporation, to respondent, Oakland Bank of Commerce, to the amount of $60,000. The word “indebtedness” is defined in the guaranty as “used herein in its most comprehensive sense and includes any and all advan...
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Opinion Defendant Charlotte C. Taylor appeals from a judgment in favor of Eskil Hultin for $7,000 with interest at 7 percent from September 21, 1964, to the date of judgment. We devote our attention to whether there is substantial evidence in support of the judgment on the cause of action on which the judgment is based. Plaintiff and defendant were married June 19, 1964. After their honeymoon, the...
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*810 Opinion Plaintiff, then aged 3, brought this action on a rejected claim against the estate of her father, Morris Jacobs, for reasonable support during the remainder of her minority less any amounts received from said estate by way of family allowance payments; she also sought to recover counsel fees for the maintenance of said action and costs of suit. A stipulation having covered the co...
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*818 Opinion Theses three cases present the identical question, the validity of section 91 of the Election Code of the City of Los Angeles, 1 and have therefore been consolidated for purposes of appellate review. Section 91 of the city’s Election Code provides in part: “A candidate who is running for the same elective office which he then holds shall have printed on the ballot, immediately ...
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Opinion Plaintiff vendors appeal from a judgment in favor of the bankrupt defendant purchasers of ranch property; and the title company escrow holder. Plaintiff vendors and defendant purchasers, on May 19, 1965, entered into a written agreement for the sale and purchase of a walnut grove in Lake County, for the sum of $125,000, later modified to $115,000. Vendors and purchasers ...
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Opinion Pursuant to Penal Code section 1238, subdivision 1 the People appeal from an order granting defendant’s motion under Penal Code section 995 to set aside an information charging defendant with possession of marijuana (Health & Saf. Code, § 11530) on the ground that the police obtained the marijuana by an unconstitutional seizure and search. The People contend that the marijuana eit...
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Opinion Claimants John M. Johnston, Mab Johnston, and Mary E. Butcher (hereafter “claimants”) made a claim for the payment of a fire loss under a policy issued by defendant (respondent) Security Insurance Company of Hartford (hereafter “respondent”).. Differences arose as to the amount payable and the parties resorted to arbitration for resolution of their dispute pursuant to terms of the polic...
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Opinion Defendant Herrera and a codefendant Rodriguez, were charged with the offenses of assault with a deadly weapon (Pen. Code, § 245), in count I, and discharging a firearm at a vehicle on a highway with intent to do great bodily injury (Veh. Code, § 23110), in count II; were tried by a jury; and were found guilty of both offenses. At the time of sentencing, upon motion of the district attor...
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Opinion John Myhers appeals the denial of his motion to discharge of record of a judgment for $37,800 in favor of his ex-wife Freda. John and Freda, having separated in 1961, executed a separation agreement in 1962. Freda then obtained a Mexican divorce, which in its decree incorporated the terms of the separation agreement. In 1964 John complained for divorce in the Los Angeles Superior Cour...
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6 Cal. App. 3d 860 (1970) 86 Cal. Rptr. 359 ERNEST C. TIMMSEN et al., Plaintiffs and Appellants, v. FOREST E. OLSON, INC., et al., Defendants and Respondents. Docket No. 34633. Court of Appeals of California, Second District, Division Three. April 23, 1970. *863 COUNSEL Edward L. Lascher for Plaintiffs and Appellants. Gabler, High & Clark and Jess F. High for Defendants and Respondents. OPINI...
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6 Cal.App.3d 873 (1970) 86 Cal. Rptr. 450 GUY E. MANSPERGER, JR., Plaintiff and Appellant, v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent. Docket No. 34589. Court of Appeals of California, Second District, Division Four. April 23, 1970. *874 COUNSEL William T. Hays and Arnold S. Petersen for Plaintiff and Appellant. Thomas C. Lynch, Attorney General, and Edward M. Belasco, Deput...
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Opinion Plaintiffs appeal from a declaratory judgment holding that no valid trust was created by a written amendment to a partnership agreement and that one of the partners succeeded to the community interest of his deceased wife under the laws of intestate succession. Findings of the lower court set forth these basic facts, which are not disputed: “Prior to September 11, 1961, Alex ...
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6 Cal. App. 3d 884 (1970) 86 Cal. Rptr. 397 L. PERRY, Plaintiff and Appellant, v. FARLEY BROTHERS MOVING & STORAGE, INC., Defendant and Respondent. Docket No. 34872. Court of Appeals of California, Second District, Division Four. April 23, 1970. *885 COUNSEL Arthur Mabry for Plaintiff and Appellant. Millikan, Montgomery & Olafson and Charles E. Millikan, Jr., for Defendant and Respondent....
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Opinion The order herein under review is the latest in a 30-month history of petitioner’s problems before the juvenile court. 1 She was first before the court as a runaway from home in the fall of 1966. At that time, she was found to be a dependent child under subdivision (a) of section 600 of the Welfare and Institutions Code. 2 Those proceedings *893 resulted, ultimately, in her being r...
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6 Cal. App. 3d 896 (1970) 86 Cal. Rptr. 233 BILTMORE PRESS, Plaintiff and Appellant, v. IVAN USADEL et al., Defendants and Respondents. Docket No. 34094. Court of Appeals of California, Second District, Division Five. April 23, 1970. *898 COUNSEL Joseph K. Borges, Sr., for Plaintiff and Appellant. David L. Medoff for Defendants and Respondents. OPINION STEPHENS, Acting P.J. The parties to this ap...
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Opinion Statement of the Case Plaintiffs Raymond V. Calzada and Ruth A. Calzada, husband and wife, by their amended complaint, sought to set aside a trustee’s sale under a second deed of trust executed by them in favor of one Fannie H. Carelli securing a promissory note in the principal sum of $2,615.42, and which had been purchased by the defendant Rose Sinclair, the wife of def...
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Opinion Statement of the Case This is an action by the assignee of International Cultured Pearl Co., a New York corporation, doing business in New York, against Bernard Baruch and Gideon Berman for money due for goods delivered to Baruch on memorandum, and upon a written instrument whereby Berman guaranteed to pay Baruch’s debt to plaintiff’s assignor for such goods. The first cause of ac...
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Opinion Defendant was charged by information with violation of Health and Safety Code section 11530 (possession of marijuana). His motion under Penal Code section 995 was argued and denied. Defendant pleaded not guilty and made a motion under Penal Code section 1538.5. Subsequently, defendant personally and all counsel waived a jury trial and stipulated that the cause be submitted on the ...
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Opinion Statement of the Case Defendant was charged by information with two counts of grand theft (counts 1 and 2) involving motor vehicles (Pen. Code, § 487, subd. 3), and with two counts of receiving stolen property (counts 3 and 4, Pen. Code, § 496), relating to the same motor vehicles alleged to have been stolen in *940counts 1 and 2 of the information. Defendant’s motion to dismiss under se...
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Opinion The People appeal from an order of the Superior Court of Santa Barbara County which set aside an information (Pen. Code, § 995) charging defendant with a violation of section 11530.1 of the Health and Safety Code (cultivation of marijuana). (Pen. Code, § 1238, subd. 1.) We affirm the order although not upon the ground assigned by the trial court. 1 The pivotal issue r...
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Opinion The People appeal from an order granting a new trial, following defendant’s conviction of sex acts with a girl under 14 years of age (Pen. Code, §§ 288, 288a). Mentally disordered sex offender proceedings were instituted and terminated; on December 10, 1968, defendant was granted probation. On January 17, 1969, with new counsel, the parties appeared in court. The court’s minutes state: “It...
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6 Cal. App. 3d 957 (1970) 96 Cal. Rptr. 631 STEWART TITLE COMPANY, Plaintiff and Respondent, v. JAMES K. HERBERT, Defendant and Appellant. Docket No. 1096. Court of Appeals of California, Fifth District. March 24, 1970. *959 COUNSEL Richards, Watson & Hemmerling and James K. Herbert, Jr., for Defendant and Appellant. Stammer, McKnight, Barnum, Bailey & Barnett and Stephen Barnett for Plai...
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Opinion Plaintiff appeals from a judgment in a declaratory relief action declaring and adjudging that he was not an “insured” under the uninsured motorist provisions of a policy of insurance issued by defendant. The appeal is on an agreed statement of facts. On January 22, 1966, plaintiff was driving a 1965 Volkswagen owned by John Preston. Preston had given plaintiff permission to d...
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Opinion Defendant was charged, jointly with Gracie Ann Lyons (count I) with inflicting cruel and inhuman corporal punishment on a child, in violation of section 273d of the Penal Code, and (count II) with causing or permitting the life or limb of that child to be endangered, in violation of subdivision (1) of section 273a of the Penal Code.1 After a trial by the court, trial by jury having been du...
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Opinion Plaintiff appeals from a judgment of dismissal entered after the court sustained without leave to amend a general demurrer to her second amended complaint to establish her status as a stockholder of defendant, on the ground that the action was barred by the statute of limitations (Code Civ. Proc., § 338, subd. 3). The only question on appeal is whether the running of the statute w...
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Opinion Defendants, participants in an unauthorized sale of corporation stock to plaintiff, appeal from the judgment entered against them in a court-tried case awarding plaintiff compensatory damages ($40,500), as well as assessing punitive damages ($5,000, $1,000 respectively) against defendants Anderson and Wood. 1 Defendants Anderson and Wood submit two contentions on appe...
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*3 Opinion Appellant was charged with four counts of robbery and with a prior conviction of burglary. He admitted the prior and a jury found him guilty of first degree robbery. The appeal is from the judgment of conviction. The sufficiency of the evidence is unquestioned. The overwhelming evidence of appellant’s guilt includes the testimony of five victims each of whom positively identified...
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Opinion Defendant was charged by information with one count of burglary (Pen. Code, § 459), one count of receiving stolen property (Pen. Code, § 496), one count of mayhem (Pen. Code, § 203) and one count of assault with a deadly weapon (Pen. Code, § 245). A prior felony conviction was also charged. Defendant pleaded not guilty and denied the prior conviction. A motion under section 1538.5 of ...
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*23 Opinion Defendant was charged by information with violation of Penal Code, section 487, subdivision 1 (grand theft). Defendant, appearing with counsel, was arraigned and pled not guilty. Defendant personally and all counsel waived jury trial and stipulated that the case be submitted on the transcript of the preliminary hearing, each side reserving the right to offer additional evidence. F...
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Opinion In May 1965, appellant utility district filed a complaint in the Superior Court of Plumas County against respondent, County of El Dorado, to recover taxes assessed by the county and paid by the district under protest. The action was brought pursuant to Revenue and Taxation Code section 5138. At issue was the assessment for the tax year 1964-65, which appellant contended was void b...
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Opinion In a personal injury action judgment was entered upon a verdict for the defendants. Plaintiff appeals. After plaintiff and defendants had rested their cases in" chief, attorney James J. Oppen, trial counsel for plaintiff, called as a witness attorney Arthur . O. Aragon, trial counsel for defendants. The trial had originally been set for August 6, T96~8; A continuance to December 16-, ...
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Opinion A jury convicted defendant of burglarizing the premises of Copper Brite, Inc.; he admitted a previous felony conviction (§ 11530, Health & Saf. Code). Defendant appeals from judgment and order denying motion for new trial. The purported appeal from the order is dismissed (§ 1237, Pen. Code). In the early morning hours of May 3, 1968, the premises of Copper Brite were entered ...
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Opinion Pending action for divorce. In December 1968, on an order to show cause, the trial court ordered defendant husband to pay plaintiff wife pendente lite $2,360 per month for her support, $500 per month for support of their five-year-old daughter, $15,000 for costs of suit, and $30,000 for attorneys’ fees. The husband appeals the order as to attorneys’ fees and child support, contending th...
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Opinion The petitioner, Byron Lee Baker, seeks release from further confinement resulting from his commitment by the Superior Court for Los Angeles County to the Department of Mental Hygiene for an indeterminate period as a mentally disordered sex offender. The petitioner sets forth a number of alleged procedural and constitutional errors relating to the commitment proceedings. Similar conten...
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Opinion Plaintiff appeals from the judgment entered in this proceeding in eminent domain. The property condemned faces Capitol Park and consists of the west one-half of a city lot improved by a well-built and well-maintained 11-unit apartment building, with nine garages, located on “N” Street between 13th and 14th Streets in Sacramento. Condemnation wás for use in connection with the Capi...
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Opinion Northwestern National Insurance Company (herein called “Northwestern”), considering itself aggrieved by. the superior court’s denial of a lien for workmen’s compensation benefits furnished its insured’s employee Bernie E. Garrett, has appealed from orders granting judgment notwithstanding a jury’s verdict and an alternative limited new trial, and from a portion of a judgment in fa...
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Opinion Appellants are teachers employed by the Salinas Union High School District; feeling aggrieved by the decision of the district governing board to purchase group health insurance benefits for district employees under Government Code, section 53202 et seq.,1 appellants petitioned for a writ of mandate to compel a revision of the district salary schedule. The appeal is from a judgment of dismi...
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Opinion Plaintiffs Southern Check Exchange (Southern) and James W. Martin appeal from a summary judgment in favor of defendant San Diego County (County) and three of its officials. *83 On January 24, 1967, Southern and Martin commenced action for breach of contract to lease certain County-owned real property. A fourth amended complaint .alleged breach of contract by County and, in a secon...
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Opinion This is an original proceeding. Petitioners (the Miros) seek a writ of mandate to set aside an order of immediate possession issued by respondent court in an eminent domain action instituted by the City of Rialto, real party in interest herein, to condemn property for airport purposes. The controlling issue is whether the right of immediate possession authorized by section 14...
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Opinion This is an appeal by the defendant after his conviction by a jury of two counts of violations of Vehicle Code, section 23101. At approximately 6 p.m. on March 30, 1968, a Mr. and Mrs. Lenz were driving east on Foothill Boulevard in San Bernardino. The defendant, coming from the opposite direction, crossed the double line and hit the Lenz car head-on, causing serious injuries to Mr. an...
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Opinion The trial court having granted a motion to suppress evidence pursuant to Penal Code section 1538.5, the People have applied for a writ of mandate to review that determination. Facts At 12:15 a.m., on November 17, 1968, Officer Robert E. Kimball of the Los Angeles Police Department saw Ronnie Lawson, a juvenile, drop a handrolled cigaret. Kimball retrieved the cigaret and determine...
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Opinion Defendant was charged with murder and assault with intent to commit murder; a jury found him guilty of first degree murder and assault with a deadly weapon, a lesser but included offense. He appeals from the judgment. Around 5 p.m. on April 30, 1968, defendant and Bill Daugherty drove Mrs. Daugherty to work at the Hello Dare Bar, left and returned at 9 p.m.; around 11 p.m. defendant s...
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Opinion By information defendant was charged with two counts of forgery. Count I accused him of passing a forged check in the sum of $21.64 at an Alpha Beta Market on June 25, 1968. 1 Count II related to a forged check in the sum of $23.50, also passed at an Alpha Beta Market, on June 29, 1968. After an unsuccessful motion to suppress, defendant pleaded guilty to count I. Count...
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Opinion Appellant Fred Schwartz appeals from two orders of the superior court made on May 6, 1968, in department 63 of that court. One order directed the payment, from assets of a business in which appellant has an interest, of attorney’s fees in the amount of $3,757.34 to respondent Lawrence Light. The other order retaxed costs on a prior appeal involving the same attorney fee. 1 ...
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Opinion This appeal is a companion to the appeal of Fred Schwartz in Schwartz v. Schwartz, 2d Civil No. 33989 [ante, p. 133; 85 Cal.Rptr. 45], filed concurrently with this opinion, Here Fred Schwartz appeals from an order of the superior court made on May 6, 1968, in department 65 of that court, denying his motion “to have Court, pursuant to Order of Apri...
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5 Cal.App.3d 144 (1970) 85 Cal. Rptr. 199 HAROLD KUHLMANN, Plaintiff and Respondent, v. PASCAL & LUDWIG, Defendant and Appellant; FOREMOST DAIRIES, INC., Intervener and Respondent. Docket No. 34103. Court of Appeals of California, Second District, Division Four. March 9, 1970. *149 COUNSEL Schell & Delamer and John M. Maller for Defendant and Appellant. Wise, Kilpatrick & Clayton and ...
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Opinion This is an appeal from an order construing the will of Mrs. Marguerite G. McCarthy, deceased, and from an order settling the first account and for preliminary distribution. By will dated May 10, 1965, Mrs. McCarthy gave property to each of her four children, Marjorie Gless, Rosemary Bullís, Neil D. McCarthy, and Kathleen Hill; and she appointed Robert Belden (an attorney), Ro...
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Opinion An interlocutory judgment of divorce, entered January 2, 1965, provided that defendant pay support of $100 per month for each of two minor children and alimony of $25 per month, the amount to be increased to $75 per month upon termination of support payments for the first child and to $125 per month upon termination of support of both children. On December 2, 1965, a final judgment of d...
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Opinion This case involves several appeals from two orders of the superior court sitting in probate. The order entered November 2, 1967, approved the first account current of the executors, directed preliminary distribution and allowed partial payment of statutory and extraordinary executors’ commissions and attorney fees. The order entered December 27, 1967, determined interests in the estate. S...
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Opinion Defendant Joseph N. Gambos appeals from a judgment based on a jury verdict finding him guilty of possession of heroin for sale, a violation of Health and Safety Code section 11500.5. The facts are substantially undisputed. While on parole from state prison, to which he had been committed for a narcotic offense, Gambos lived in a *191 San Francisco apartment with a woman friend named...
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Opinion Appellant Ring’s license as real estate broker, and that of appellant Friedman as real estate salesman, having been revoked by respondent, they unsuccessfully sought a peremptory writ of mandate ordering each such license restored. They appeal from the judgment denying the writ. On November 22, 1967, appellants entered pleas of nolo contendere to two counts of an indict...
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Opinion Appellant, purchaser of two duplex buildings from respondent, appeals from an adverse judgment rendered on appellant’s cross-complaint alleging fraud inducing the sale. We affirm the judgment. Nature of the Case Respondent originally sued appellant in the municipal court for rents collected by appellant after respondent had reacquired the property involved in the law...
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Opinion By information Robert Lee Dacy was charged with kidnaping for ransom Mrs. Joanne Stafford (count I) and her four-year-old son Stanley (count II). (Pen. Code, § 209.) The information also charged that Stanley had been subjected to bodily harm, that defendant had been armed, with a concealable deadly weapon, and that defendant had' four prior felony convictions (three were admitted and on...
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*228 Opinion Action by plaintiffs on a contract for the sale by plaintiffs to defendants of 350 shares of the capital stock of Gamble Ranch Investments, Inc. Plaintiffs Arnold Clejan and Katherine Clejan, husband and wife, are the respondents and cross-appellants herein. Defendants Joe Benaron and J. J. Byrnes entered into a settlement with plaintiffs before trial and are no...
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Opinion This is an appeal from a judgment determining the respective interests of August Fromm and Gordon Seely, Jr., in the estate of Mae C. Fromm, deceased, under the terms of her will. Mae Fromm executed her will on October 30, 1962, and a codicil in June of 1964. She had two children, a daughter Helen F. Dillon, and a son August J. Fromm. August J. Fromm is the appellant and Gordon Seely,...
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Opinion Appellant California Casualty Indemnity Exchange brought this action against its insured, Irene P. Steven, and her son, David, praying for a declaratory judgment determining that uninsured motorist coverage in the automobile liability policy issued to Mrs. Steven had been waived as to David. The appeal is from a judgment determining that there was no such waiver. *306 The facts are ...
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Opinion Defendants Glenda Davis Nelson and Arthur Murray, Inc. appeal from a judgment for treble damages awarded against them under the Dance Act. 1 Beginning in 1959, respondent for a three-year period took dance lessons at “Arthur Murray Dance Studio” in San Francisco. On April 13, 1962, appellant Nelson, the operator of the studio, assisted by her employee, Bob Kelly, pers...
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*318 Opinion The appellant and petitioner Jerry Pierce seeks a writ of supersedeas to stay the enforcement of a portion of the judgment of the Superior Court for Los Angeles granting the petition for adoption filed by Raymond Kaplan in the case entitled, In the Matter of the Adoption Petition of Raymond S. Kaplan, superior court number AD 70279. The portion involved deals with the cancellatio...
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*327 Opinion Petitioner has filed for writ of habeas corpus seeking relief from an order of the trial court revoking probation and remanding him to the custody of the Director of the Department of Corrections pursuant to Penal Code, section 1203.03. Factual Background The petitioner was convicted on November 27, 1967, of the crime of possession of marijuana for sale in violation of Health...
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Opinion In this action a group of 10 individual owners of residential real property on Cheryl Drive, Redding, California, joined together in a *339 single action on the theory of inverse condemnation seeking damages against Shasta County. They allege each suffered varying amounts of damage resulting from road and drainage improvements constructed by the county which were a co...
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Opinion BRAY, J. * Cavin Memorial Corporation of Town & Country Village (hereinafter “Cavin Memorial”) appeals from judgments in four superior court actions consolidated for trial. Fulton-El Camino Recreation and Park District, a political subdivision (hereinafter “District”) appeals from the judgment in superior court action No. 171596 (3 Civil No. 12247). The basic issu...
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Opinion The only question presented on this appeal is whether substantial evidence supports the trial court’s findings concerning t|tle to certain real and personal property. For a statement of the substantial evidence rule, see Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784 [59 Cal.Rptr. 141, 427 P.2d 805]. William Goetz ...
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Opinion Plaintiff appeals from that part of a judgment after court trial in his favor denying him double damages instead of actual damages. Question Presented Does section 3346 of the Civil Code or section 13008 of the Health and Safety Code apply to damage to property resulting from fires negligently set? Record Numerous suits for damages were consolidated for trial o...
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*411 Opinion The widow (Bernice) of William F. Burgart and his previous wife (Elizabeth) dispute who should receive the death benefits of two insurance policies. From a judgment favoring the former wife, Bernice appeals. Hughes Aircraft Company, employing Mr. Burgart, provided its employees with term life insurance through Pacific Mutual Life Insurance Company. The amount of...
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Opinion Defendant, by indictment, was charged with six sex offenses, three offenses involving a boy named Angel Pena, age 11, in three counts, and three offenses involving a boy named Alfredo Boure, age 12, in three other counts; was tried by a jury which found him guilty of the offense of lewd and lascivious conduct involving Alfredo and not guilty of the other offenses; and appeals his convic...
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Opinion This is an appeal from an order of dismissal made on November 18, 1968. On July 2, 1968, plaintiff sued for breach of contract, filing a first amended complaint and a second amended complaint. The trial court sustained defendant’s demurrer to the second amended complaint, without leave to amend, on the ground that plaintiff’s cause of action was barred by Code of Civl Procedure, secti...
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Opinion Petitioners were charged with possession of marijuana for sale, in violation of section 11530.5 of the Health and Safety Code. They moved, pursuant to section 1538.5 of the Penal Code, to suppress certain evidence secured by the police under the circumstances hereinafter set forth. Their motion was denied, and they seek in this court a writ of mandate to require that the order of denial...
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Opinion Barbara Ward appeals from a judgment entered upon a jury verdict awarding her $411.90 for personal injuries and property damage which she claimed to have incurred in an automobile collision. She contends the verdict is inadequate and that various errors and irregularities occurring at the trial contributed to the low award. No reporter’s transcript has been furnished; the appeal i...
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*445 Opinion This is an appeal from a judgment declaring appellant Dominic Gunari has no right, title or interest to a $20,000 bank account, maintained in the name of “Manti, Pietro or Gurnari, Dominic,” at the time of the death of Manti. The respondent, successful in the court below, is Leonardo Manti, admitted to be the surviving nephew of Manti and sole beneficiary under a 195...
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Opinion Appellants were charged in municipal court with violation of a Marin County ordinance requiring an occupancy permit for residential use of a moored vessel. Asserting the ordinance to be unconstitutional upon its face, plaintiffs applied to the superior court for writ of prohibition to bar further proceedings in the misdemeanor prosecution. Order to show cause issued, the matter was subm...
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Opinion Statement of the Case Respondent General Insurance Company of America brought this action to recover money alleged to be due and owing from appellants upon a *464 written contract for the construction of a hotel building and related facilities and for extra work performed beyond that called for in the contract. Respondent was the surety on the performanc...
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Opinion Appellant Vincent Califano and his codefendant John Totoro were found guilty of second degree burglary following a stipulation that the cause would be submitted upon the transcript of the testimony taken at the preliminary hearing. After announcing his verdict the trial judge ordered that proceedings be suspended and granted the defendants probation for two years. Califano’s notice of a...
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Opinion Defendant was convicted by a jury of murder in the second degree and found to be sane at the time of the commission of the crime. He appeals from the judgment. 1 About a week prior to January 30, 1964, defendant Moore came to visit the victim Doug Carmack. The latter was not at home at the time of defendant’s arrival. Leslie Ernst, a fellow tenant of the apartment house where Carmac...
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Opinion In an action for personal injuries plaintiff appeals from judgment, after jury verdict, in favor of defendant. *497 Issues Presented 1. Failure of court to instruct on duties prescribed by the Labor Code. 2. Error in instruction on assumption of risk. As will be shown herein, plaintiff’s contentions must be sustained and the judgment reversed accor...
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*504 Opinion On rehearing. On January 15, 1970, we filed an unreported decision affirming defendant’s conviction of marijuana sale and possession for sale. On January 27 the State Supreme Court filed its decision in People v. Moran, 1 Cal.3d 755 [83 Cal.Rptr. 411, 463 P.2d 763], which caused us to doubt our decision’s compatibility with California law. We th...
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Opinion Plaintiff appeals from a judgment dismissing his action against defendants Huntington Beach Union High School District and Laguna Beach County Water District following an order sustaining general demurrers to his second amended complaint without leave to amend. The facts as alleged in the second amended complaint are: Plaintiff, a licensed real estate broker, and defendant, Huntington...
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*519 Opinion Defendant, a prime contractor on a state highway project, appeals from a judgment in favor of plaintiff, a supplier of tires and tire services, in an action following stop notice proceedings pursuant to Code of Civil Procedure sections 1190.1 and 1192.1. We reverse upon the ground the evidence is insufficient as a matter of law to support material findings. Dete...
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Opinion In an indictment returned by the Grand Jury of San Diego County, appellant, Bernardino Arauz, was charged in count I with the murder of John McKeen Bright, Jr. (Pen. Code, § 187), and in count II with attempted robbery of George Ruiz (Pen. Code, §§ 664 and 211). It also charged he was armed with a deadly weapon, a .32 caliber pistol, at the time of the attempted robbery. Appellant...
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Opinion The history of this case follows: In 1959, appellant pleaded guilty to a charge of burglary, second degree, Penal Code section 459, and was sentenced to prison by the Superior *536 Court of Kern County. He was not represented by counsel in those proceedings. 1 In 1963, while on parole, appellant was charged with three counts of burglary, Penal Code section 459, in an information f...
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5 Cal.App.3d 540 (1970) 85 Cal. Rptr. 346 THE PEOPLE, Plaintiff and Respondent, v. ROBERT MOSQUEDA, Defendant and Appellant. Docket No. 676. Court of Appeals of California, Fifth District. March 17, 1970. *542 COUNSEL Eugene W. Krum, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, Jack R. Winkler and Willard F. Jones, Deputy Attorneys Gene...
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Opinion Defendant Taubman Company, Inc. (herein referred to as “Taubman”) appeals from a judgment entered upon a verdict *553 of $62,763 awarded laborer John Morehouse for serious personal injuries. The principal issues relate to defendant’s relationship to him and its duties of care toward him at the construction site of the Southland shopping center in Hayward, where his in...
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5 Cal.App.3d 563 (1970) 85 Cal. Rptr. 388 THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CLEVELAND BRYANT, Defendant and Appellant. Docket No. 16725. Court of Appeals of California, Second District, Division One. March 18, 1970. *565 COUNSEL Al Matthews, Arthur Garrett and Arthur Shivell for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General,...
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Opinion Plaintiff’s eminent domain action sought condemnation of parcels of non-contiguous unimproved property owned by defendants Younger and encumbered by a trust deed. The parcels are located approximately three miles north of the community of Castaic in Los Angeles County and are separated by Highway 99, one larger parcel lying to the west and two larger parcels to the east. These three lar...
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Opinion By information defendants Moore and Moreland were accused, in counts I and II, of kidnaping for the purpose of robbery (Pen. Code, § 209), in counts III, IV and V of attempted robbery (Pen. Code, § 664) and in count VI of burglary (Pen., Code § 459). In count VII defendant Moreland was accused of possession of heroin (Health & Saf. Code, § 11500). Both defendants were charged with...
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OPINlbN People’s motion to dismiss an appeal from an order, made March 7, 1969, adjudging J.R. a ward of the juvenile court under the provisions of section 602 of the Welfare and Institutions Code. The basis for the motion is that the notice of appeal, which was filed on May 22, 1969, was too late. The relevant chronology is as follows: March 7, 1969: A referee of the juvenile court signed an orde...
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Opinion Defendant was convicted by a jury of attempted first degree robbery and of first degree burglary. The offenses were held to comprise an indivisible transaction and sentence imposed only for the latter offense, first degree burglary. The judgment included the recital that defendant had been charged with and was found to have been armed with a deadly weapon at the time of commission'of th...
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Opinion Defendant was granted leave to file a late notice of appeal from a judgment, following conviction of possession of marijuana in violation of Health and Safety Code section 11530 upon his plea of guilty. However, defendant failed to comply with Penal Code section 1237.5 in that he filed no statement under oath or penalty of perjury showing reasonable constitutional, jursidictional or oth...
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Opinion The People appeal from orders of the superior court (1) dismissing two counts of rape (Pen. Code, § 261, subd. 4) and one count of kidnaping to commit robbery (Pen. Code, § 209) against defendant William Augustus Morris, (2) granting Morris probation following his pleas of guilty to certain other charges, and (3) dismissing two counts of rape (Pen. Code, § 261, subd. 4) and one count of k...
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*686 Opinion Hugh and Maritza Major, minors represented by their mother Patricia Carson Major, as guardian, appeal from a judgment in favor of Carl Rebmann, who brought this action through Elsie R. Jonck, conservator. The judgment quiets respondent’s title in two parcels of real property 1 as against a commonly shared half interest claimed by appellants under a deed from Maritza Rebmann, th...
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Opinion Defendant was charged in two counts with selling marijuana (Health & Saf. Code, § 11531.) It was alleged that the sales were made on November 8, 1967, and on December 12, 1967. A complaint was issued on May 26, 1968, and defendant was arrested on June 14, 1968. At the preliminary hearing defendant made a motion to dismiss on the ground that there was an unreasonable delay in the p...
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Opinion Plaintiff sustained an injury on May 13, 1964, at Indio, while working as a painter on a freeway overpass construction project when an employee of the defendant, John Strona & Sons, dropped a %" x 20' steel rod, which .struck plaintiff on the back of the neck. Plaintiff was employed by a subcontractor at the time of the injury and filed suit against John Strona & Sons, the general...
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Opinion Appellant Daniel Gee held the civil service classification of “General Auditor III” in the State Department of Justice. He was dismissed from that position, effective October 27, 1966, by the Attorney General for causes set forth in Government Code section 19572 as follows: “(f) Dishonesty. . . . (t) Other failure of good behavior either during or outside of duty hours which is of such ...
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Opinion This is an appeal by the People from an order setting aside an information under the provisions of Penal Code section 995. The only question raised is whether police, without a warrant, are permitted to travel over an open automobile driveway alongside a private house to its backyard while pursuing a felony investigation. Early one morning police officers observed in a vacant lot a st...
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*732 Opinion Appellant Phoebe A. Moore sued respondents for false arrest and imprisonment. A jury verdict exculpated all defendants and Mrs. Moore appeals; the court granted plaintiff a limited judgment notwithstanding the verdict, and in the alternative, granted a new trial, and respondent City and County of San Francisco appeals. In this case, the verdict of the jury (inco...
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Opinion Procedural Background On October 14, 1964, the Superior Court of Los Angeles County granted a divorce decree between the parties. It provided that defendant-husband *753 (hereinafter, defendant) should pay to plaintiff-wife (hereinafter, plaintiff) as alimony “a sum equal to seventeen and one-half per cent (17 Vi %) of defendant’s gross taxable income from July 1, 1964, through June...
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Opinion This is an appeal from a judgment 1 of the juvenile court declaring Donnie, a minor, a ward of the court and from an order 2 of the court that a suitable placement order previously made remain in full force and effect. Procedural History On February 18, 1969, a petition under the provisions of section 602 of the Welfare and Institutions Code was fil...
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Opinion Petition for a writ of habeas corpus, to review an order of the Superior Court of Ventura County adjudging petitioner to be in contempt. On June 30, 1969, in a pending divorce action, pursuant to plaintiff-wife’s order to show cause, the court made the following pendente lite order: “Pursuant to stipulation of respective counsel, the court orders that defendant shall pay to plaintiff ...
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Opinion Plaintiff property owner has appealed from a summary judgment in favor of her contractor’s insurer in an action entitled “Complaint for Indemnity” in which she sought to recover from the insurer the amount of a judgment together with costs and interest she had previously secured against the insured contractor. (See Ins. Code, § 11580.) The facts, with one exception hereinafter not...
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Opinion The Public Defender of Solano County seeks a writ of prohibition to annul an order that a designated deputy public defender, Stephen R. Camden, attend the trial of defendant, George Washington Johnson, to assist him through sentencing. Camden sought a writ of habeas corpus, contending the court’s order illegally deprived him of his freedom. Johnson was represented initially b...
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Opinion Defendant Miller appeals from a judgment in a declaratory relief action decreeing plaintiff State Farm Fire and Casualty Company is not liable under its automotive public liability policy issued to Leon *840 Jacovides against whom Miller obtained a judgment for damages arising out of an accident covered by the policy. The judgment was predicated upon a finding the policy issued by p...
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Opinion At about noon, on February 11, 1969, appellant, K. Hiram Johnson, and his friend, Susan Ackerman, entered the United States from Mexico at the San Ysidro border crossing station. After a preliminary examination, they were taken to the customs baggage room for a more complete inspection. Johnson was asked by United States Customs Inspector Reay to empty his pockets. He removed a nu...
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Opinion Defendant and Lola Mae White were charged with burglary. Defendant also was charged with having been armed with a deadly weapon at the time of the commission of the offense. Both defendants were found guilty of burglary in the first degree by a jury, and, in addition, the jury found the defendant was armed with a deadly weapon during the commission of the offense. Defendant w...
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Opinion In two cases consolidated for trial (C-19487 and C-19753) a jury returned guilty verdicts against defendant on foul'counts of incest (Pen. Code, § 285), three counts of oral copulation (Pen. Code, § 288a), and one count of sodomy (Pen. Code, § 286). Mentally disordered sex offender proceedings were had and terminated; defendant’s application for probation was denied, and he was sentence...
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Opinion Charged with possession of marijuana (Health & Saf. Code, § 11530), a felony, defendant’s motions to dismiss the infor *885 mation (Pen. Code, § 995) and to suppress admission of the marijuana in evidence (Pen. Code, § 1538.5) were denied. Defendant personally waived trial by jury and, pursuant to stipulation, the cause was submitted to the trial court on the basis of...
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*892 Opinion In a jury trial, defendant was convicted of two counts of rape (Pen. Code, § 261, subd. 3). His motion for a new trial and application for probation were denied, and he was sentenced to state prison for the term prescribed by law, the sentences to run concurrently. He appeals from the judgment of conviction. Defendant contends (1) that the evidence is insufficient to support th...
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Opiniqn Defendant landowners appeal from a summary judgment in rem validating a contract between plaintiff water districts. The contract purports to define the water rights of the two districts, the storage and distribution system of each, and the exercise of water rights in connection with the use of particular facilities. For several years plaintiffs, Empire West Side Irrigation Di...
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Opinion TAYLOR, J. The City of Palo Alto (hereafter City), appeals from a summary judgment in favor of the County of Santa Clara (hereafter County) denying the City’s request for a refund for property taxes paid. The City argues that its tax-exempt possessory interests under certain long term leases from Leland Stanford Junior University (hereafter lessor), a nontaxexempt private less...
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Opinion Petitioners were charged with possession of marijuana (Health & Saf. Code, § 11530) and possessioh of a dangerous drug (Health & Saf. Code, § 11910). After denial of their motion to suppress evidence under Penal Code section 1538.5, petitioners seek prohibition to restrain further proceedings. If petitioners’ contentions are meritorious, the proper relief is suppression of the evi...
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*933 Opinion Defendant appeals from the judgment (order granting probation) entered following a nonjury trial that resulted in his conviction for pandering in violation of Penal Code section 266i. He contends (1) that the evidence was insufficient to sustain his conviction; and (2) that evidence of certain recorded telephone conversations was improperly introduced against him. We have conclud...
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Opinion Appeal from a judgment dismissing an action following an order sustaining a general demurrer without leave to amend to the second amended complaint. The complaint is for injunctive and declaratory relief and seeks to compel the admission of plaintiff to membership in the Order of the Coif, a national honorary legal society. The Pleadings Plaintiff was a June 1967 graduate of the S...
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Opinion Plaintiff and cross-defendant Santa Monica Unified School District (hereinafter, the District) appeals from a judgment and decree of specific performance requiring the District to purchase certain property in the Malibu area of Los Angeles County from defendants and cross-complainants (hereinafter, defendants) for the sum of $345,000. Mr. John Shay, supervisor of building planning for...
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Opinion By information, defendants White and Norton were charged with possession for sale of a narcotic, in violation of Health and Safety Code section 11530.5. Defendants moved to dismiss the complaint on the grounds that the municipal court in case #A-223313 had already adjudicated the issue that the evidence obtained in the instant case was the result of an unlawful search and seizure and th...
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Opinion Defendants Robert L. Shank (Shank) and Don McAtee, Inc. (McAtee) appeal from a judgment entered in favor of plaintiff Tommy C. Lea (Lea) on March 13, 1968, in an action for damages for personal injuries sustained by plaintiff Lea in a collision of the vehicles. Lea was driving a truck. Eli Doneff (Doneff) was a passenger in the Lea vehicle. A truck owned by McAtee and driven ...
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Opinion Appellants were convicted of violating Health and Safety Code, section 11530, possession of marijuana. They, together with two other defendants, were tried by jury. Kipnis and Collins appeal from the judgments. Facts Shortly before 4 a.m. on May 4, 1967, the Volkswagen in which the appellants and three companions were riding struck a bridge abutment and overturned. The driver was ki...
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Opinion In this action on a foreign (Texas) judgment, plaintiff appeals from an order quashing service of the summons and complaint on defendant. Appellant contends that the court erred in granting defendant’s motion to quash such service of process. Plaintiff’s complaint alleges in substance that on March 14, 1968, judgment for $9,367.05 was entered in the district court of Swisher County,...
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Opinion This is an appeal from an order dismissing an action for want of prosecution, granted on respondents’ motion pursuant to the discretionary provisions of Code of Civil Procedure, section 583. The action named *9 numerous defendants; the dismissal was granted as to the moving parties (respondents herein), only. 1 On October 8, 1963 appellant corporation fil...
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Opinion Appelants who are copartners, brought this action against six insurance companies to recover the proceeds of policies of fire insurance and interest thereon claimed to be due after a fire damaged the partnership premises which were the subject of the policies. In their answers the insurance companies claimed that such policies were voided when one of the copartners, Irving Zemelma...
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Opinion Statement of the Case This is an appeal by plaintiff, an Ohio based life insurance company, from a judgment denying its claim for refund of $120,303.93, which sum was paid by it under protest as the result of a “Retaliatory Tax” assessment levied against it. The action seeks reimbursement thereof by credit or refund through special statutory remedy. The claim for refund w...
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Opinion Petitioner seeks a writ of prohibition to stay further criminal proceedings in the Justice Court of the Woodland Judicial District of Yolo County on the ground of former jeopardy. No person may be twice put in jeopardy for the same offense (Cal. Const., art. I, § 13; Pen. Code, § 1023.) Where a plea of once in jeopardy is good, prohibition will lie to prevent a retrial. (Cardenas v. ...
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Opinion Defendants Smith, Mitchell, and Easter appeal from judgments after a jury found them guilty of first degree robbery. A fourth defendant, Zollicoffer, was convicted at the same trial but has not appealed. At the trial each defendant was represented by separate counsel. On appeal a court-appointed attorney filed an opening brief on behalf of all three appellants. After the respondent’s br...
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Opinion Defendant appeals from a conviction of robbery first degree after a trial by jury. Viewing the record in the light most favorable to the People, as we are bound to do following a guilty verdict (People v. Sweeney, 55 Cal.2d 33 [9 Cal.Rptr. 793, 357 P.2d. 1049]), the facts are these: About 6 p.m. June 9, 1968, at Kingman, Arizona, defendant and his wife were hitchhiking when Fausto R...
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Opinion On January 5, 1967, the Director of Employment sent a notice to petitioner informing him he was not eligible to receive benefits for specified periods. The notice of determination stated, among other things: “Reason for decision: “You state you failed to report at your local as required—since 11-20-6. “Since you are a member of a Union that controls job dispatching—you *64are required to m...
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Opinion The plaintiffs are Willard and Linda Randles and their minor son Jeffery, by Linda Randles, his guardian ad litem. Each appeals from the judgments entered after three jury verdicts: one in favor of Linda; one in favor of Jeffery; and one against Willard. The action arose out of a traffic accident in which defendant’s truck collided with the rear end of plaintiff Willard Randl...
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Opinion Plaintiff Mary J. Nissan appeals from an order setting aside a default and default judgment which had been entered in her behalf against respondent William Barton. The default and default judgment were vacated upon the ground that both were void. Barton cross-appeals from the judgment. We will refer to plaintiff-appellant, who is also respondent on the cross-appeal, as “appellant” and t...
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4 Cal.App.3d 82 (1970) 84 Cal. Rptr. 246 JAMES EDWARD JOHNSON, Plaintiff and Appellant, v. CITY OF PACIFICA, Defendant and Respondent. Docket No. 25705. Court of Appeals of California, First District, Division Four. February 4, 1970. *83 COUNSEL Howard B. Crittenden, Jr., for Plaintiff and Appellant. Carroll, Davis, Burdick & McDonough and Gerald P. Martin, Jr., for Defendant and Respondent. ...
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Opinion The proceedings arose out of the petition for commitment of appellant as a noncriminal narcotic drug addict. A hearing before the court was held pursuant to sections 3100.6, 3104 and 3106 of the Welfare and Institutions Code. The petitioning officer was examined and cross-examined. Pursuant to stipulation of respective counsel, without the defendant joining, testimony by the physi...
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Opinion Appellants brought this action against respondents in the court below to recover treble damages for an allegedly usurious loan. After issue was joined on the complaint respondents successfully moved for a *99 summary judgment resulting in a dismissal of the action. But, “once again, the temptation to cut the Gordian knot of involved litigation by resort to a summary j...
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Opinion On May 16, 1966, defendant Evans, a dealer'in used' electric cars and automobiles, sold a 12-year-old Pontiac to Carrie V. Pickard, an elderly woman who had previously driven only electric cars which she had purchased from Evans. About three weeks later Mrs. Pickard *118 drove the automobile in a negligent manner and seriously injured the plaintiff. Plaintiff sue...
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Opinion GUSTAFSON, J. The defendant was charged by information with grand theft (in violation of subdivision 3, section 487 of the Penal Code) and with unlawfully taking or driving a vehicle without the consent of the owner (in violation of section 10851 of the Vehicle Code). The evidence at the preliminary hearing discloses that the defendant rented an automobile for one week. The contract...
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Opinion Action for personal injuries. Plaintiff Alfred Beard, age 14, attempted to board a moving freight train operated by defendant Santa Fe Railway, fell onto the track, and lost both his legs beneath the wheels. In his first count he pleaded the railroad’s negligence; in his second count its violation of the Federal Safety Appliance Act (45 U.S.C. § 11) in maintaining a box car sill s...
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Opinion This action was brought to recover the balance due on a $40,000 loan made in connection with a residential tract construction project. The loan was evidenced by a second trust deed note executed by James W. Sullivan, Inc., a corporation, which defaulted. Nine individuals were joined as defendants upon the theory they were members of a joint venture which actually borrowed the mone...
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Opinion This is an appeal by the People (Pen. Code, § 1238, subd. 1) from an order granting defendant’s motion under section 995 of the *156 Penal Code to set aside an information which charged him with possession of marijuana in violation of section 11530 of the Health and Safety Code. The court never ruled on defendant’s companion motion under section 1538.5 of the Penal Code, 1 consideri...
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Opinion Plaintiff, City of Tiburón, a municipal corporation, has appealed from a judgment of dismissal of its action for declaratory relief, and from an order denying its motion to reconsider and for leave to file a supplementary and first amended complaint. 1 The order and judgment were both entered after the court had sustained without leave to amend the separate demurrers of...
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Opinion This appeal, by defendant Ellen Blanford alone, is from a judgment and separately entered permanent injunction in a declara *188 tory relief action commenced against her and Bertha M. Schwan by California State Automobile Association (C.S.A.A.). Her attempted appeal from a nonappealable “Memorandum Opinion” which ordered “judgment... as prayed” and that an “injunction...
Views: 1
4 Cal.App.3d 191 (1970) 84 Cal. Rptr. 191 HORST W. DZIURA, Plaintiff and Appellant, v. CALIFORNIA AVIATION SERVICE, INC., et al., Defendants and Respondents. Docket No. 25252. Court of Appeals of California, First District, Division Four. February 6, 1970. *195 COUNSEL Morgan & Moscone and Charles O. Morgan, Jr., for Plaintiff and Appellant. Ericksen, Ericksen, Kincaid & Bridgman, Preston...
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Opinion The Golden Gate Bridge and Highway District and its directors seek mandate to compel the general manager and auditor of the district to issue warrants for payment of certain surplus revenues of the district to the county governments of the counties comprised within the district, We have concluded that the proposed payments, although purportedly authorized by Statute of 1968, chap...
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*218 Opinion Plaintiff Elster’s Sales, a corporation, had long been in the business of furnishing and equipping restaurants. The Mikado Corp., a corporation with little assets, proposed to establish a Japanese restaurant in a building located on leased land in Oakland. The restaurant corporation contemplated an installation much more expensive than that for which it could pay in ...
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I dissent. A trial is an entity. The cumulative effect of a group of improprieties cannot be assessed by measuring the quantum of prejudice attributable to each separate one. In weighing a compound of misconduct, “[e]ach case must ultimately rest upon a court’s view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the...
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Opinion Plaintiffs and appellants are the surviving husbands, and constitute the sole heirs at law, of two passengers who died in an airplane crash allegedly caused by a fellow passenger who had purchased large amounts of life insurance from the defendant insurers. They have appealed from several judgments of dismissal entered in favor of the insurance companies and the alleged agent of one ins...
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Opinion In this proceeding against the County of San Mateo and Earl B. Whitmore, its sheriff, a judgment of dismissal was entered following the election of plaintiff William F. Litzius not to amend his petition for writ of mandate upon the sustaining of a general demurrer thereto, with leave to amend. Litzius appeals from the judgment of dismissal. The facts we shall relate are as th...
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Opinion This is an appeal from the judgment of conviction for violation of Penal Code section 12021 (a felon being in possession of a concealable weapon) and for violation of Penal Code section 245, subdivision (b) (assault with a deadly weapon on a police officer). The facts: San Francisco Police Officers Robert Landucci and Richard Leon, while driving their patrol automobile on Fell Street in Sa...
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Opinion Appelant Shirley Barasch brings this appeal following the dismissal of her complaint in intervention which she filed in an action brought by respondent Harry Klinghoffer against her husband, Buddy Barasch. On February 19, 1968, respondent commenced an action against defendant Barasch, seeking to recover a total of $48,000 on four promissory notes allegedly executed by defendant in fav...
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*265Opinion The trial court found defendant guilty of grand theft (§ 487, subd. 1, Pen. Code); she appeals from judgment and sentence. In January 1964 William Moore, a cab driver, purchased a home on West 36th Street from Rita Bowie making a down payment of $1,000; Mrs. Bowie held a second deed of trust and the property was financed through Pacific Savings and Loan Association. Moore made some pay...
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Opinion Defendant appeals from his conviction in a nonjury trial of conspiracy to commit grand theft (Pen. Code § 182) and grand theft (Pen. Code § 487, subd. 1). In October 1965 the Department of Employment received a prospective employer registration form for a business known as Service, Incorporated, signed by one Peter Daley as owner. In March 1966 it received a form reporting wages paid ...
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*281 Opinion Defendant administratrix of the estates of plaintiff’s wife Doris and his stepson Dwight Clinton, appeals from a $50,000 judgment for plaintiff after a jury trial in his action for the wrongful death of his four natural children. The four children, ages 2, 5, 7 and 8, and their mother were among nine ocupants of a 1962 Rambler station wagon killed when the car veered off an eleva...
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*294 Opinion Frank E. Ferreira (Ferreira) appeals from a judgment of dismissal and from an order sustaining a demurrer to complaint without leave to amend on the grounds that (1) the complaint did not state facts sufficient to constitute a cause of action, and (2) there was another action pending between the same parties for the same cause entitled Keller v. Ferreira No. 305926. The appeal fr...
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Opinion This is a suit brought by appellant Marvin H. Grove for injunctive relief and accounting against respondents Grove Valve and Regulator Company and Walworth Company, for use of 12 improvement inventions patented to and allegedly made by him, in the manufacture and sale of the so-called G-5 gate valve, and Valv-Pak completion valve assembly. Respondent companies cross-complained, as...
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Opinion Defendant appeals from a judgment convicting him of a violation of section 245, Penal Code (assault by means of force likely to produce great bodily injury). The record shows that in the early morning hours Clara Nelson, an elderly woman confined to bed with a broken hip, was choked into unconsciousness by an intruder who entered the duplex in which she was sleeping alone. The victi...
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Opinion This is an appeal by plaintiff Dirk William Springer and Holly Sugar Corporation, intervener (hereinafter sometimes referred to as “plaintiffs”), from a judgment entered on a jury verdict for defendants Ray Reimers and E. Guy Warren, doing business as Warren Transportation Company (hereinafter sometimes referred to as “defendants”) in an action for personal injuries brought by Spr...
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Opinion Appellant, the plaintiff in a personal injury action, has appealed from an adverse judgment entered after a jury verdict for the *345defendant (respondent). The sole issue raised by this appeal concerns the propriety of the action of the trial court in refusing a jury instruction tendered by appellant on the doctrine of last clear chance. The instruction as tendered is conceded to be a co...
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*356 Opinion Defendant husband appeals from an interlocutory decree of divorce, challenging only the division of property. He claims that the value of his wrecking yard business, which is his separate property, should not have been included in the division; he was not given proper credit for his contribution of separate funds toward the purchase of the residence awarded to plaintiff; and assu...
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Opinion Robert Espinoza Rodriguez pleaded guilty to possessing narcotics (Health & Saf. Code, § 11500). At his probation hearing he asked, to be committed to the Director of Correcitons for confinement in the narcotics detention, treatment and rehabilitation facility as a narcotic addict under Welfare and Institutions Code section 3051. The court considered Rodriguez’s record and probatio...
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Opinion Plaintiffs Maison Clarke and Ralph Price commenced separate personal injury actions, which were subsequently consolidated for trial, against defendants Charles Michals and the City of Larkspur. The injuries were incurred when a car driven by Clarke and in which Price was a passenger collided with a car driven by Michals. The issues raised by the pleadings included the negligence of both...
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Opinion Defendants John Kai and Mamie Kai have appealed from a judgment quieting title in plaintiffs of a right to use certain beach land and a right-of-way thereto across other land, of “Paradise Cove Subdivision” in Marin County. As to the factual basis of the judgment the parties are in substantial agreement. Benjamin F. Lyford was an early owner of certain Marin County land ...
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Opinion Defendant William H. Brown appeals from a judgment of conviction of first degree robbery (Pen. Code, § 211) based upon a jury verdict. *385 Two police officers were driving past a service station on the comer of 14th Avenue and East 14th Street in Oakland, around 1 o’clock in the morning. They “saw a man walk up from East 14th Street into the station, inside of the pumps, along the ...
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Opinion This is an appeal from a summary judgment for respondent upon a complaint wherein appellant sought to recover damages *391 under California Constitution, article I, section 14, for an alleged taking and damaging of her private property for public use. The theory asserted was inverse condemnation. It competently appears that in 1953 plaintiff acquired property in ...
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Opinion Bank of America (hereafter Bank) appeals from an adverse judgment allowing First Savings and Loan Association (hereafter First) restitution for its mistake in honoring a writ of execution against its depositors, Albert E. and Robin E. Bell (hereafter collectively referred to as Bell). The Bank contends that restitution was not the proper remedy as First’s mistake was one of law, a...
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*400 Opinion Plaintiff, Louis Ramirez, was injured by a fall caused, he alleged in his pleading, while he was alighting from an elevator which had been stopped below a floor level. Negligence was charged against Columbia Elevator Company, appellant, which had a maintenance contract on the elevator, and against The Redevelopment Agency of the City and County of San Francisco, owner of the prop...
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Opinion By information defendant Ernest Smith was charged with the murder of Louis Michael Turpin, a violation of Penal Code section 187. On November 14, 1968, after arraignment and entry by defendant of a plea of “not guilty,” on motion of defendant the cause was set for trial for January 6, 1969. On that date at the request of the People the trial date was continued to January 13, 1969. A fur...
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Opinion After a trial by jury, defendant was found guilty of a violation of section 11530.5 of the Health and Safety Code (possession of marijuana for sale). He appeals from the judgment. On March 6,1968, at approximately 2:48 a.m., Officer Cahill, a Stockton police officer on patrol, observed defendant’s car going in the opposite direction with his high beams on. Defendant dimmed his lights and m...
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Opinion Plaintiff is a corporation that in January 1966 or earlier had entered into an agreement to lease from the owner Capital Services (Capital) a building to be constructed by Capital to house medical offices. The building would form a second unit (Unit Two) to an existing building *427(Unit One) in which the officers of plaintiff, who were physicians, had their offices along with others, and ...
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Opinion Petitioner Bank of America National Trust and Savings Association (Bank) made a motion for summary judgment against the real party in interest, Victor A. Krische (Krische), in action #313210 in which Bar# is plaintiff and Krische is defendant. The motion was heard and denied by the superior court on October 22, 1969. The issues to be resolved are whether Bank’s motion should ...
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Opinion Defendant was convicted on jury verdict of first degree burglary and assault by means of force likely to produce great bodily injury. He moved for a new trial on the ground the verdict had been decided by means other than a fair expression of opinion on the part of all jurors, and in support of his motion filed affidavits of two trial jurors. The motion for new trial was denied, and def...
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Opinion Plaintiff appeals from order of July 5, 1968, reducing a prior award of attorney’s fees by $500, order of August 27, 1968, denying her additional fees and court costs and order of November 22, 1968, denying her attorney’s fees and court costs on appeal. In 1964 plaintiff sued for a divorce alleging that she and defendant had one minor child, Frank. The parties were separated and livin...
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Opinion The Orange County Superior Court ordered the filing of Santa Ana Medical Clinic’s amended creditor’s claim in Estate of Clara Edith Vose. The executor, First National Bank of Orange County, first published notice to creditors on December 12, 1967. Three weeks later, on January 2, 1968, the clinic presented a bill to the executor’s attorneys for $7,500 for total medical services provided Mr...
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Opinion Gale Nagel appeals a judgment, after jury trial, convicting her on three counts of grand theft (Pen. Code, § § 484-487). She does not challenge the sufficiency of the evidence supporting her conviction. She contends the court erroneously admitted evidence which the police seized during an illegal search. Mrs. Nagel worked as a medical receptionist. The crimes for which she was convict...
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*483 Opinion Defendants, Delmar Wise and Diesel Engineering and Maintenance Company, Inc. (hereafter Wise) 1 appeal from a judgment in favor of the County of Marin (hereafter County) ejecting them from trespassing over certain submerged County lands and directing immediate removal of their drydocks. Wise contends that the judgment must be reversed as: 1) the relief sought by the County plac...
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Opinion The filing of a petition for habeas corpus by appellant Fort-man with the Supreme Court of this state was treated by that court as an application to recall the remittitur in People v. Fortman, 257 Cal.App.2d 45 [64 Cal.Rptr. 669]. On January 22, 1969, it issued an order transferring the case to this court “with directions to recall its remittitur as to appellant Fortman, vacate its ...
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Opinion Robert Love Beckner sued Sears, Roebuck and Company, a corporation, (Sears) and certain of its employees accusing them of wrongfully interfering with plaintiff’s contract of employment and causing him to. be discharged. In a jury trial plaintiff was awarded damages of $20,000 against Sears and William Thompson, an employee. These defendants made a motion for a new trial, which was denie...
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Opinion Petitioner seeks to restrain respondent court from proceeding against him upon an information charging him with violating the “hit and run” provisions of Vehicle Code, section 20001. 1 *516 The accident giving rise to the charges 2 occurred on May 19, 1969. Following the preliminary hearing, defendant was held to answer. He entered a plea of not guilty to the information and tri...
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Opinion Defendant was charged with committing a lewd and lascivious act upon a child under the age of 14 years in violation of section 288 of the Penal Code. He was found guilty by a jury, placed in Atascadero State Hospital for 90 days’ observation as a probable mentally disordered sex offender and then brought back to the court, which, after reviewing the superintendent’s report, elected to r...
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Opinion Defendant was charged with grand theft of a 1961 Chevrolet automobile, in violation of section 487, subdivision 3, of the Penal Code, and with driving or taking an automobile without the consent of the owner, with the intent to deprive the owner of title or possession, in violation of section 10851 of the Vehicle Code. The defendant waived trial by jury and submitted the issue for dec...
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Opinion At approximately 8:25 p.m. on October 23, 1968, appellant entered the front door of the Sav-On Drug Store in Oxnard. He went through a check stand and proceeded directly to the cigarette rack. He walked up very close to the rack, almost pressing against it. After scanning the back of the store, he removed a carton of Camel cigarettes from the rack with his left hand, placed the ca...
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Opinion This is an appeal from a superior court judgment denying a writ of mandate (Code Civ. Proc., § 1094.5) by which petitioners sought to obtain a judgment ordering rescission of a zoning resolution adopted by the City Council of Los Angeles. The resolution granted California First National Realty and Construction Corporation (First National) a conditional use permit for the construct...
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Opinion After a court trial following a jury waiver, the court found defendant guilty of attempted rape of Diane on September 5, 1967, (Pen. *557 Code, §§ 664-261, subd. 4) count I; rape and kidnaping of Sharon on September 25, 1967, (Pen. Code, § 601, subd. 4 and § 207) counts II and III; and rape and kidnaping of Dolores on October 15, 1967, (Pen. Code, §601, subd. 4 and § 207) counts IV an...
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Opinion In case number A-230383 defendant was charged in count I with illegal possession of a machine gun (Pen. Code, § 12220)—of which charge he was acquitted—and in counts II and III with batteries on the persons of two peace officers, Frank C. Farey and Thomas C. Kelley (Pen. Code, §§ 241, 243). The information charged and the jury found to be true that each officer was, at the time of the c...
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Opinion Appellant, Charles Busalacchi, appeals from a judgment determining that Pearl D. Benton, widow of decedent, is the sole heir and beneficiary under decedent’s will. Questions Presented 1. Effect of nonissue of the stock mentioned in the will. 2. Did the conditions under which testamentary gifts to decedent’s daughter and appellant were to vest, occur? 3. Interpretation of the will. Record J...
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Opinion In December 1965, a final judgment of divorce was entered in which the appellant was granted custody of sons, Michael and Timothy, then ages 15 and 10, respectively. Respondent was given “liberal” visitation rights, including Friday evenings and one month each summer. He was also ordered to pay appellant $250 per month alimony, and $175 per month child support for each child. A few mont...
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Opinion A jury found appellants guilty of murder, second degree. Nunez, a third defendant, was found guilty of the same offense, but his motion for a new trial was granted. The motions of the appellants for new trials were denied. On October 1,1967, the three defendants drove to Kearney Park, Fresno, where a Mexican festival was in progress. Defendant Trevino got out of the car, and defendant...
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Opinion Defendants, L. Dudley Phillips and the State of California, have appealed from an order granting a new trial to the plaintiffs in each of two actions which have been consolidated for trial and for purposes of this appeal. The jury returned a general verdict in favor of the defendants, 1 and, *613 pursuant to the instructions of the court, a special verdict setting forth its findin...
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Opinion In each of the two cases involved herein the defendant corporation has appealed from an order of the superior court denying motions to vacate and set aside the entry of default and the judgment thereafter entered. The actions were for money alleged to be due and owing by defendant under written guarantees of leases. In each complaint it was alleged as follows: “Defendant is n...
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Opinion Defendant was charged, in two counts, with the murders of Charles Metoyer and Thomas Sims. A prior felony conviction was alleged, which defendant admitted. Defendant was tried by a jury and found guilty of murder in the first degree as to each count. This was defendant’s second trial, the first trial having ended with a mistrial being declared when the jury was unable to reach a verdict...
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Opinion Defendant was charged with one count of attempted robbery and one count of robbery and as to each count that he was armed with a deadly weapon during their commission. It was also charged that he had suffered a prior felony conviction in another state. The jury was unable to agree at defendant’s first trial and a mistrial resulted. A second jury found him guilty of attempted robbery i...
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Opinion Defendant was charged with one count of robbery and with three counts of kidnaping for the purpose of robbery. After a trial by jury, he was found guilty on all four counts. A motion for a new trial was denied but the trial court reduced the three kidnaping counts to simple *670 kidnaping. Probation was denied and he was sentenced to state prison ón all four counts, t...
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*676 Opinion Statement of the Case Defendants were jointly charged by information, filed on February 8, 1968, with the murder of one Philibert Pepin. Simpson was charged with á prior conviction of robbery suffered in the County of Los Angeles on July 11, 1967. The public defender was appointed to represent both defendants, however, due to a claim of conflict of interest, the public defend...
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Opinion In the latter part of 1965, the defendant was the chairman of the board of directors of the Southwestern Funding Corporation. His wife, Eleanor C. Humphreys, owned controlling interest in this corporation. Southwestern Funding held as a wholly owned subsidiary the Swan Lake Corporation which was developing the Swan Lake Mobile Home Park. The defendant was the corporate officer most imme...
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*704 Opinion Defendant was charged with violation of Health and Safety Code, section 11530 (possession of marijuana) and with violation of Health and Safety Code, section 11910 (possession of restricted dangerous drugs). He pleaded not guilty. A motion under Penal Code, section 1538.5, was submitted to the court upon defendant’s memorandum of points and authorities and on the preliminary he...
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Opinion Defendant was convicted by a jury of possessing marijuana, a violation of Health and Safety Code section 11530. His primary contentions on appeal are that the marijuana received in evidence was the product of an illegal search of an automobile he was driving at the time of his arrest, and that the district attorney was guilty of misconduct in his opening statement to the jury. The arr...
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Opinion Defendant Joseph Chandler appeals from a judgment in an unlawful detainer action restoring plaintiff Union Oil Company of California (hereinafter referred to as “Union”) to possession of certain property and awarding damages in favor of Union against Chandler. We find each of the several assignments of error made by Chandler to be without merit. Accordingly, we affirm the judgment...
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Opinion There are two appeals before us and we will first discuss the appeal of Robert and Lillian Weiss in their capacities as cross-complainants. Appeal of Weiss As gleaned from the clerk’s partial transcript constituting the record on this appeal, the dispute arises from the following circumstances: Robert and Lillian Weiss, husband and wife, owned four lots. They sold these ...
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Opinion Defendant was charged by information with a violation of the Dangerous Weapons’ Control Law (Pen. Code, § 12021) by having in his possession a .22 caliber revolver having a barrel less than 12 inches long and capable of being concealed on the person, a felony, after having been previously convicted of forgery (Pen. Code, § 470). By amendment to the information, defendant was also charged ...
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Opinion Defendant was charged by information with violation of Penal Code sections 242 and 243 (battery on a peace officer) in count I, and with violation of Penal Code section 666 (petty theft with a prior conviction of petty theft) in count II. In an amendment to the information, defendant was charged with having been previously convicted of forgery (Pen. Code, § 470) and possession of ...
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Opinion Defendant was charged by information with illegal possession of heroin (Health & Saf. Code, § 11500). Defendant thereafter made motions to set aside the information and to suppress evidence under sections 995 and 1538.5 of the Penal Code. Each motion was denied. *776Defendant pleaded “Not Guilty” and personally and through counsel waived the right to a jury trial. All counsel and defendan...
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Opinion Defendant was charged by information, dated October 18, 1968, with illegal possession of heroin in violation of section 11500.5 [s/c] of the Health and Safety Code. 1 Defendant apparently made an oral *784 motion to suppress evidence under section 1538.5 of the Penal Code on October 23, 1968. 2 On February 6, 1969, the date to which hearing had been continued at defendant’s reques...
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Opinion The People appeal from an order setting aside an information under section 995 of the Penal Code. (Pen. Code, § 1238, subd. 1.) Defendant was charged by information in count I with illegal possession of seconal, a restricted dangerous drug (Health & Saf. Code, § 11910), and in count II with driving upon a highway while under the influence of intoxicating liquor and a drug (Veh. Co...
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Opinion Plaintiffs appeal from judgment of dismissal of action against defendant State of California based on Order Sustaining Demurrer to Complaint and Supplement to Complaint without leave to amend. Question Presented Is there substantial compliance with the provisions of division 3.6 of the Government Code entitled “Claims and Actions against Public Entities and Public Employ...
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*799Opinion Plaintiffs appeal from judgment of dismissal of action against defendant State of California based on Order Sustaining Demurrer to Complaint and Supplement to Complaint without leave to amend. This is a companion case to Savage v. State of California, 3 Civil No. 12120, ante, p. 793 [84 Cal.Rptr. 650], this day decided by this court. The facts of this case are similar to those in Savag...
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Opinion At issue in this appeal is the validity of an administrative regulation prescribing the standards which determine the level of state payments for the care of Medi-Cal patients in nursing and convalescent homes. Petitioner is an association of state-licensed nursing and convalescent homes. At the commencement of this action respondent Spencer Williams held the office then entitled Administ...
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*825 Opinion Petitioners were each jointly charged in a grand jury indictment returned on July 22, 1969, as follows: Count I charged that on May 6, 1969, petitioners John Clarence Cook and Sam Frank Urbana, did unlawfully have in their possession a weapon designed for the use of a shell containing and capable of emitting tear gas, in violation of Penal Code section 12420 * 1 ; and count...
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Opinion Appellant, Eugene Thomas Chavez, and his codefendant, Gary Wayne Cottrell, were charged in count I of an information with violation of Penal Code section 211 (robbery), and in count II with violation of Penal Code section 209 (kidnaping for the purpose of robbery). A jury convicted appellant and Cottrell of both counts. Appellant’s application for probation was denied. He was sentenced ...
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Opinion Statement of the Case Plaintiff, by her second amended complaint, as superseded by pretrial statements and orders, on which the cause went to trial, sought, in the first cause of action therein, to have a deed executed by her on certain real property situated in the City of Santa Monica to defendant, declared to be a mortgage given to secure a loan of $20,000; to have the...
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*899 Opinion —This appeal is taken by Ruchti Brothers (hereinafter Ruchti) from a judgment of the superior court confirming an arbitrator’s award in favor of respondent Kenneth Bowman (hereinafter Bowman) in a matter which arose out of a dispute between Ruchti as employer, and Bowman as employee, as to the rights of Bowman under a union contract. The sole question on appeal is whether or not ...
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Opinion By information, defendant Garcia and a codefendant, Manuel Robert Ruiz, were charged in count I with illegal possession of heroin *907 (Health & Saf. Code, § 11500), a felony, and in count II with illegal use of narcotics (Health & Saf. Code, § 11721), a misdemeanor. 1 By amendment to the information, defendant was further charged with three prior felony ...
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*915 Opinion Statement of the Case Defendant was charged by information with the murder on June 12, 1968, of Roger Estrada Garcia. (Pen. Code, § 187.) Upon trial by jury he was found guilty and the degree was fixed as murder of the second degree. Defendant’s motion for a new trial was denied, probation was denied after hearing, and he was sentenced to state prison. The appeal is from the ...
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Opinion Defendant Anthony Cornelius Harris (hereinafter Anthony) and defendant Pinky Deringo Harris (hereinafter Pinky) were jointly charged in count I of an information with having committed a battery upon a police officer, in violation of Penal Code sections 242 and 243.' Defendant Pinky was singly charged in count II with the same crime, but against a different victim. At time of arraignment...
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Opinion Summary judgment quieting title of the State of California to certain lands was rendered against appellants Drinkhouse, Rutledge and Harbert, and against other persons who have not appealed or whose appeals have been dismissed. Drinkhouse, Rutledge and Harbert filed separate notices of appeal and have filed separate briefs. The lands were purportedly conveyed by Leslie W. Web...
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4 Cal.App.3d 941 (1970) 84 Cal. Rptr. 585 In re ALVIN HORATIO PRICE, a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALVIN HORATIO PRICE, Defendant and Appellant. Docket No. 16743. Court of Appeals of California, Second District, Division One. February 26, 1970. *943 COUNSEL Elsa Kievits for Defendant and Appellant. Thomas C. Lynch, Attorney General, William...
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Opinion This is an appeal by American Fidelity & Casualty Company (American) from a judgment entered in favor of Transport Indemnity Company (Transport) and Milne Truck Lines (Milne) in two declaratory relief actions consolidated for trial. The judgment decrees that American is primarily obligated to indemnify Milne and B & D Trucking Com *954 pany (B & D) against a prior sti...
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Opinion Statement of the Case Defendants (De Bernardi) appeal from an order granting plaintiffs (Wade) a new trial. The order granting a new trial is appealable. (Code Civ. Proc., § 904.1, subd. (d) (formerly § 963, subd. 2).) All other appeals and cross-appeals have been dismissed or abandoned. This action for the wrongful death of Melvin Wade and personal injuries *...
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Opinion Petitioner seeks a writ of prohibition to review an order of respondent court denying a motion made by him, purportedly under section 1538.5 of the Penal Code, to suppress evidence against him. Acting on the representations made to us in his petition, and on the record presented in support thereof, we granted an alternative writ of mandate. The return filed by the People has disclosed...
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*981 Opinion The petitioner, Palmer Odean Peterson, has filed a petition for a writ of habeas corpus in which he seeks to be released from the custody of the Sheriff of Los Angeles County resulting from his imprisonment following his conviction in the Municipal Court of the South Bay Judicial District for driving under the influence of intoxicating liquor and driving at a time when his licens...
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Opinion Statement of the Case Defendants were jointly charged by information with the crime of burglary, a felony. (Pen. Code, § 459.) By amendment to the information Wolder was alleged to have suffered prior felony convictions for forgery, burglary, violation of section 11530 of the Health and Safety Code, and robbery, and to have served a term in state prison upon each such prior. Burch w...
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Opinion Plaintiff Sacramento-Yolo Port District (“Port”) recovered a summary judgment against defendant Cargill of California, Inc. (“Cargill”), its lessee, for fire damage to the leased premises caused by Cargill’s negligence. Judgment was for $72,500. Cargill appeals. It correctly contends that before the fire Port had undertaken to insure the premises for such loss with provision in it...
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Opinion Appellant was charged and convicted of violating Penal Code section 266h, pimping. The prior conviction of robbery with which he was charged was found to be true by the jury. Appellant was granted probation, one of the terms of which was that he serve six months in the county jail with credit for time already served. At the time the crime was committed, June 14, 1968, Penal Code secti...
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*Supp. 3Opinion This case involves the troublesome problem of what should be done with property remaining in the demised premises when the tenant is dispossessed through unlawful detainer proceedings. Prior to 1967, upon a judgment of restitution being issued, the enforcing officer served the writ on the tenant who had five days to vacate and if he did not do so then the enforcing officer simply p...
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Opinion The People appeal from an order of the trial court dismissing the case for delay in arraignment. The defendant was arrested at about 11:15 a.m. on Tuesday, July 15, 1969, for violating Vehicle Code section 23102, subdivision (a). The complaint was filed Wednesday, July 16. Defendant was not arraigned until Tuesday, July 22. According to the settled statement, “There was no affirmative show...
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*14 Opinion On July 31, 1967 appellant, a postal employee, was driving a United States mail truck in the course and scope of his employment and was injured when it collided with a vehicle driven by Gary Gnade, an uninsured motorist. The United States, through its Bureau of Employees’ Compensation, paid benefits to appellant pursuant to 5 United States Code Annotated sections 8101-8150, entitl...
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Opinion A petition for writ of mandate was filed in this court following denial by the superior court of petitioner’s motion to dismiss a personal injury action for failure to prosecute within two years. Petitioner’s sole contention herein is that the trial court abused its discretion in failing to grant the motion to dismiss. The injury complained of occurred on February 16, 1966. On Febru...
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Opinion Plaintiff was injured in a two-car intersection collision. He brought the present action against the County of Riverside on the theory that the accident was caused by a dangerous condition of public property. Following a jury verdict and judgment for plaintiff, defendant unsuccessfully moved for a judgment notwithstanding the verdict and for a new trial. Defendant appeals from the...
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Opinion Defendant was convicted of robbery, sentenced to the penitentiary and appeals. On the evening of April 27, 1969, the victim, Mr. MacClellan, was leaving a bar when he met the defendant and a Mr. Burchfield. After some conversation, MacClellan invited the defendant and Burchfield to his home where both defendant and Mr. Burchfield identified themselves by the false name of “Bob” to Mr. MacC...
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Opinion Plaintiffs Knudsen Dairy Products Co. (hereinafter referred to as Dairy) sought a refund of $38,077.61 in sales and use tax assessed against plaintiff by defendant State Board of Equalization and paid by Dairy under protest. Dairy at the time of the assessment and payment was a separate corporate entity, albeit a wholly owned subsidiary of Knudsen Creamery Co. (hereinafter re...
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Opinion Defendant appeals from a judgment in favor of an automobile insurance carrier, rendered in a declaratory relief action brought against him by the carrier. For the reasons set forth below, we affirm the judgment. Statement of the Facts On December 31, 1966, defendant Richard Shmitka was injured while riding in an automobile owned and operated by his friend Steven Swanson ...
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Two separate appeals have been brought by defendants Kris E. Cox and LeRoy B. Poulin (James T. Carman has not appealed) from two purported judgments in superior court case No. SOC 15732. 2D Civ. No. 35540 This appeal was taken from a judgment entered on February 19, 1969, following a trial by the court. After a motion for new trial had been made, the court entered the following order on April...
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Opinion An 11-count information accused defendant of various violations of sections 261, 288 and 288a of the Penal Code. After the prosecution moved to dismiss three counts and certain counts of the information were renumbered, the case went to trial before a jury on the following charges: ...
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Opinion On May 3, 1968, in action No. C-19511, the district attorney of Orange County filed a six-count information charging appellant, Michael Andrew Tracy, with three counts of robbery (Pen. Code, §211), one count of kidnapping for the purpose of robbery (Pen. Code, § 209), one count of grand theft (Pen. Code, §§ 484-487), and one count of driving a vehicle without the consent of the owner (V...
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Opinion Petitioner Great Northern Railway Company (Great Northern) seeks a peremptory writ of mandate directing the Alameda County Superior Court to dismiss an action upon the ground of forum non conveniens. The superior court had previously denied a motion to dismiss, based upon the same ground. The record of the superior court now before us discloses the following. ...
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*118 Opinion This is an appeal from an order, denominated judgment, denying relief from the late filing of a claim. (Gov. Code, § 946.6.) In their petitions, Mr. and Mrs. Bennett recite that their minor son Brian died on October 21, 1968, when he was buried under a cement wall that had been left in a hazardous condition by the respondent city. No claim was filed with the city within the 100...
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Opinion This is an appeal from an order sustaining a release of attachment by the constable and “allowing” a third party claim. The problem centers on that provision of the first paragraph of Code of Civil Procedure section 689, which permits the levying officer to release personal property from a levy after a third party claim has been made “unless the plaintiff . . . within five da...
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Opinion Defendant appeals from conviction of violation of section 11530, Health and Safety Code (possession of marijuana), after court trial, jury having been waived. Question Presented Was the search unreasonable? Record Defendant was charged in an information with violation of section 11530, Health and Safety Code (possession of marijuana). He waived trial by jury. He moved under sect...
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*139 Opinion Plaintiff, an employee of a subcontractor on a construction project, appeals from a judgment of nonsuit in an action against defendant, the general contractor, to recover damages for injuries sustained in the course of his employment allegedly caused by the unsafe condition of the place of employment. The issue is whether defendant owed plaintiff a nondelegable ...
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12 Cal.App.3d 143 (1970) 91 Cal. Rptr. 193 DEVELOP-AMATIC ENGINEERING, Plaintiff and Appellant, v. REPUBLIC MORTGAGE CO. et al., Defendants and Respondents. Docket No. 26894. Court of Appeals of California, First District, Division One. October 21, 1970. *146 COUNSEL Field, De Goff, Huppert & Maguire and Peter A. Huppert for Plaintiff and Appellant. Langer & Simpson, Cooley, Crowley, Gait...
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Opinion The husband appeals solely from that portion of an interlocutory judgment and decree of divorce which adjudged that a promissory note secured by a mortgage on certain real property was wife’s separate property. The respondent wife was formerly married to Donald Rodan, which marriage was terminated by a decree of divorce in the State of Iowa. The Rodan divorce decree awarded certain re...
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Opinion Thomas Butler appeals from a conviction by a jury of second degree murder (Pen. Code, § 187). The verdict was rendered on February 6, 1969. Probation was denied and appellant was sent to prison for the term prescribed by law on February 27,1969. Prior to these proceedings, appellant was tried on the same murder charge. The jury disagreed and a mistrial was declared. At shortly after...
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Opinion Plaintiff brought this action against Los Angeles County to recover property taxes on two lots for the 1964-1965 tax year paid under protest. It recovered judgment returning the taxes paid on both lots. The county appeals from this judgment. The issue presented at the trial and on this appeal is whether these two lots were used exclusively for charitable purposes on the tax lien date ...
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*219 Opinion Plaintiffs appeal from a judgment in favor of defendants in an action for damages for fraud arising out of the sale of real property. Plaintiffs Roland, husband and wife, were purchasers; defendants Hubenka, husband and wife, were sellers; defendant Smith was a real estate broker whom the court found was an agent of Hubenka; and defendant Boyd was a salesman employed...
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Opinion Hale Construction Co. appeals from a judgment it take nothing on its cross-complaint. Hale, as prime contractor on an Imperial County road project, was sued by Fleuret-Stillman Co., one of its subcontractors, for money due under its subcontract. Hale filed a cross-action (called a cross-complaint) claiming money damages for breach of the subcontract by Fleuret-Stillman Co. The cross-act...
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*234 Opinion Appellant appeals from a judgment entered pursuant to a jury verdict convicting him of battery upon a police officer engaged in the performance of his duties (Pen. Code, § 243). 1 His sole contention is that the trial court erred in refusing to instruct the jury on the theories of self-defense and the effect of possible excessive force used by the officer. Appellant was arres...
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Opinion Camay Drilling Company appeals from a judgment in favor of Travelers Indemnity Company in a declaratory relief action brought by Camay. Ulysses Kelley, an employee of B & Y Stanton House Movers, was injured while engaged in the process of moving an oil derrick belonging to Camay a short distance from one drilling location to another. Kelley filed an action against Camay alleg...
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Opinion Harmon L. Easton petitions for a writ of mandate to vacate an order transferring venue of an action from San Diego to Los Angeles County, and to compel trial in San Diego County. Since there is no basis for venue in Los Angeles County, we grant the writ. Harmon L. Easton and others sued Schneider Bros. Inc., a Chicago based commodity brokerage firm, and Gale Berry. Berry was ...
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Opinion In this consolidated matter, several corporate taxpayers sought to recover property taxes paid to respondents under protest (Rev. & Tax. Code, § 5138) for the 1966 tax year. The appeals are from two judgments of the superior court after a consolidated trial 1 to review the *252 action of the Alameda County Board of Supervisors, acting as a board ...
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Opinion This is an appeal by plaintiff Eugene Webb from an order denying his motion for modification or termination of alimony. In July 1964, plaintiff Eugene Webb commenced a divorce action against defendant Aileen Webb. Defendant cross-complained, and on December 24, 1964, she was granted an interlocutory decree of divorce which approved *261 the provisions of a nonintegrated property set...
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Opinion In this habeas corpus proceeding, applicant asserts that his waiver of counsel was not intelligently made. He was charged with driving an automobile while his license was suspended, a misdemeanor (Veh. Code, § 14601), and with four prior convictions of the same offense. When he appeared for arraignment, the court advised all defendants in the courtroom of their rights to counsel, to trial ...
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This action was brought by Perry and Herbert Rosenberg against their former tenant, Herbert Silinsky, to enjoin the use of the trade *271 name “Hub” and for rent allegedly unpaid. Silinsky cross-complained for an injunction against the Rosenbergs. After a trial without a jury the court issued a permanent injunction prohibiting Silinsky from using the name “Hub,” “Hub Pharmacy,” “Hu...
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Opinion Theodore A. Cohen appeals from a conviction of: (1) conspiracy to commit grand theft and forgery and to obtain money by false pretenses; ana (2) nine counts of grand theft. Susan Cohen appeals from a conviction of one count of grand theft. We modify the judgment to comply with Penal Code section 654 and to correct a clerical error, and affirm the judgment as modified as to Theodore A. Cohe...
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Opinion This appeal is from a judgment for plaintiff (Margaretha Hoar) and against defendants (Donald L. Tuley and others) for the amount of a nonnegotiable promissory note dated January 19, 1965. The principal defense is that the promissory note was given for services which required a real estate broker’s license and the plaintiff’s assignor was not so licensed, and therefore the note was not ...
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Opinion This is an appeal by United Bonding Insurance Company from an order denying its motion to set aside forfeiture of bail which it had posted on behalf of the defendant, Manuel Pedroza, in a criminal action pending in the Superior Court of Santa Clara County. 1 Appellant claims that defendant’s appearance in the Santa Clara court at the time of trial was prevented by his d...
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*358 Opinion On October 29, 1968, the Department of Motor Vehicles (hereinafter referred to as the “DMV”) suspended the California driver’s license of Duncan H. Wallace (hereinafter referred to as respondent) pursuant to section 13352 of the Vehicle Code. The suspension was based on a conviction in August of 1968 of a violation of Vehicle Code section 23102, together with a convi...
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Opinion Plaintiffs La Vista Cemetery Association and The Trustees of La Vista Cemetery Association Endowment Care Fund (hereafter collectively La Vista) appeal the judgment of dismissal of their action against American Savings and Loan Association (hereafter American) for the recovery of money on deposit and for damages for fraud. American’s demurrer to the first amended complaint for fai...
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Opinion Action to quiet title, for declaratory relief, and for specific performance. Plaintiffs appeal an order striking their second amended complaint in its entirety and a judgment dismissing their action pursuant to Code of Civil Procedure section 581, subd. 3 for failure to amend within the time allowed. This appeal is properly taken, for an appeal lies from an order striking an entir...
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Opinion The record before us discloses without conflict that on February 4, 1960, one Elizabeth Esterline owned certain real property located in Los Angeles County. On June 22, 1960, unknown to her and without consideration, Stanley Scott Singley caused a deed of said property to be recorded, purporting to convey title to Frank N. Debbas. The grantor’s signature was forged. The forged sig...
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Opinion Defendant Eddie Milton Nabors appeals from a judgment of conviction entered upon jury verdicts finding him guilty of four counts of robbery of the first degree 1 (Pen. Code, §§211 and 211a) perpetrated in the holdup of two liquor stores on the afternoon of January 24, 1969. By amendment to the information, defendant was charged with a prior felony conviction for forgery...
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Opinion Petitioner, Clarence F. Erickson, seeks annulment of a decision of the Workmen’s Compensation Appeals Board (hereinafter, “board”) after reconsideration, in which the board found it was not true that petitioner was injured by reason of serious and willful misconduct on the part of his employer (respondent State of California) or of a managing representative of the employer. The board or...
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*398 Opinion Henry and Myron Reichert, partners, are the lessees of an exclusive 189-space mobile home park located in Anaheim, California, called Ponderosa Mobile Home Estates (Ponderosa). On October 1, 1968, before construction of the park was completed, the Reicherts entered into a written agreement with Fred M. Hampton which gave Hampton the exclusive right to maintain a mobi...
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Opinion Plaintiffs are the heirs at law of decedents Rex Oxford and Richard Akins. They brought this action against Signal Oil & Gas Company, Howard Chase, Larney Hollick, and others, to recover damages for the wrongful deaths of the decedents, who were killed on February 10, 1967, in the explosion of a “spent caustic tank” belonging to Signal. Intervener is the workmen’s compensatio...
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Opinion 1 Defendants Gulf Oil Corporation, a property owner, and the Frouge Corporation, the developer of its codefendants’ property, have ap *417 pealed from a judgment which awarded the plaintiffs Glass, neighboring property owners, general and exemplary damages aggregating $11,500 for slander of title, together with attorneys’ fees and costs, and which enjoined and ...
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Opinion The defendants Briggs have appealed from a judgment in favor of the plaintiffs Frahm wherein it was adjudged that the plaintiffs have an easement consisting of a right of way over a concrete road, which is mainly on the defendants’ premises, for use for vehicular and pedestrian traffic and for ingress to and egress from the plaintiffs’ premises. It was *443 further de...
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Opinion This is an appeal from a judgment denying a petition, filed pursuant to section 946.6 of the Government Code, seeking relief from a one-day delay in filing a claim for damages with a public authority. For the reasons set forth below, we reverse the judgment. The accident involved occurred on October 12, 1968; the formal claim was filed with defendant on January 21, 1969, which was the...
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Opinion Preliminary Statement William E. Fox, as conservator, appeals from an order made September 18, 1969, denying him attorney’s fees for services rendered for and on behalf of the conservatee, and Edmund A. Gray, Jr., appeals from an order made on September 29, 1969, awarding Lawrence C. Gray, temporary conservator’s fees and costs and awarding attorneys’ fees for services re...
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Opinion Charles William Gibbs, Jr. (Gibbs) and Edgar Albert Lip-man, Jr. (Lipman) appeal judgments of conviction of attempted escape from lawful custody (Pen. Code, § 4532b), possession of deadly weapons by prisoners (Pen. Code, § 4574), first degree robbery (Pen. Code, § 211) and four counts of kidnaping (Pen. Code, § 207). Lipman was found guilty of the robbery of two persons; Gibbs, of the r...
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Opinion In this action for declaratory and injunctive relief, plaintiffs sought to invalidate certain actions taken by the County of Marin in the process of applying its zoning ordinance to “Marincello,” a large (2,100-acre) tract located within that county. The individual plaintiffs own land adjacent to the tract: the incorporated limits of the plaintiff city, while not including any par...
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Opinion This is an appeal from a summary judgment declaring that the uninsured motorist clause in an automobile liability policy issued by respondent is inapplicable to an injury suffered by appellant. We affirm the judgment. Facts The parties agree on the pertinent facts. Respondent issued its policy of automobile liability insurance to appellant. The policy included uninsured motorist c...
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*577 Opinion Petitioner Gabriel Alvidres is presently charged in a two-count information filed by the District Attorney of Ventura County with violating Health and Safety Code section 11530 (possession of marijuana) and section 11531 (importing marijuana). Trial is set for November 24, 1970. After having unsuccessfully attempted to suppress the evidence of the marijuana, he petitioned this ...
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Opinion Defendant appeals from conviction, after jury verdict, of two counts of first degree murder, penalty fixed at life imprisonment, and one count of second degree murder. Questions Presented 1. The evidence does not show diminished responsibility as a matter of law. 2. No prejudice in court’s failure to instruct concerning defendant’s statements to the psychiatrists. 3. No inconsis...
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Opinion Roy A. and Virginia A. Cook (Cook) appeal from a judgment reforming a promissory note evidencing a $55,000 loan from Kenneth and Evelyn Stewart (Stewart) by deleting a compound interest provision which made the note usurious. Stated in the light most favorable to respondents Stewart and First American Title Insurance & Trust Company (First American) the evidence discloses: Co...
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Opinion Lacy Brown (defendant) appeals from a judgment imposing sentence for the crime of forcible rape, of which he was found guilty by a jury. Imposition of sentence for the crime of incest, of which he was also found guilty in the same trial, was suspended for a period of five years. Both crimes were committed by the same act. Defendant contends he may not be convicted of both crimes. The ...
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Opinion Appellants Frank and June Ball appeal from a judgment entered on a cross-complaint. The facts as gleaned from the settled statement and the depositions are these: In 1961 appellants acquired certain commercial property in Ceres, California, known as the Lazy Wheels Trailer Park. Appellants decided to increase the number of trailer spaces and engaged Paul Holmdhal to prepare t...
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Opinion This action involves the title to oil and mineral interests in real property situate in Merced County. It was commenced by the present owner of the surface rights, respondent herein, who filed a complaint against appellant, and others, to quiet title to all rights in the land. All named defendants except appellant Frank L. Roemer disclaimed or defaulted. Appellant cross-complained...
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Opinion This is an appeal from a judgment sentencing the appellant to prison following an order revoking probation. Appellant contends that the judgment must be reversed because: (1) The term of his probation had automatically expired on May 6, 1969, and, therefore, the court had no jurisdiction when it sentenced him to prison on August 5, 1969; and (2) The probation officer’s s...
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Opinion On January 12, 1969, at approximately 8 a.m., appellant, alone in his car, was stopped by two immigration patrol inspectors of the United States Border Patrol. The officers were in uniform and driving a marked Border Patrol car. It was their official duty to seek out aliens unlawfully in the United States. To that end they were stopping cars at or near the checkpoint at which they...
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Opinion Appellants, plaintiffs in an action to quiet title and to declare an oil and gas lease terminated because hydrocarbons are no longer being produced “in paying quantities,” appeal from an adverse judgment. We affirm the trial court. Facts In 1924 appellants’ predecessors in interest entered into a community oil and gas lease with respondent’s predecessor in interest. ...
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Opinion Defendant Patrick F. Koenigsberger was the president and principal shareholder of defendant Sistim, Inc. In 1965 Koenigsberger executed a promissory note in favor of plaintiff in the amount of $50,000 *648 and Sistim, Inc., executed a promissory note in favor of plaintiff in the amount of $25,000. In 1968, the notes not having been paid, plaintiff brought two act...
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Opinion Tannen, Winslow & Co., Inc. (hereinafter referred to for convenience as the bond dealer), was engaged principally in the business of purchasing municipal bonds with the purpose of reselling them to the public. As such (Corp. Code, § 25006, since superseded by Corp. *656 Code, § 25004), the bond dealer was, as required (Corp. Code, § 25700, since superseded by Corp. Co...
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Opinion Plaintiff Owens Pacific Marine, Inc. (hereinafter referred to as the insured), was engaged in the business of selling and repairing boats, principally pleasure boats. When a purchaser contracted to buy a boat, the insured would spend anywhere from the next one to four weeks readying the boat for delivery to the purchaser. Often this procedure would include alterations or additions...
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Opinion Judith Black appeals from judgment of the superior court denying her petition for relief from the provisions of section 945.4, Government Code, requiring a written claim be presented to the County of Los Angeles before an action may be brought against it. On July 27, 1968, appellant’s husband, driving two of their four minor children northbound on Fullerton Road near Aguirro ...
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Opinion Plaintiff appeals from a portion of an order partially granting its motion to tax defendants’ costs on appeal following the reversal by another division of this court of a judgment in an eminent domain proceeding (Regents of University of California v. Morris, 266 Cal.App.2d 616 [72 Cal.Rptr. 406]); by such reversal (solely on the issue of damages) defendants were expressly awarded their ...
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Opinion In this action for libel a jury awarded Noah Dietrich compensatory damages in the amount of $75,000 against Charles B. Thornton, Litton Industries, Inc. and George T. Scharffenberger, and exemplary damages in the amount of $5,000,000 against Thornton, $1,000,000 against Litton, and $50,000 against Scharffenberger. The trial court then granted judgment against Dietrich notwithstand...
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Opinion Defendant-appellant was found guilty of violation of Public Resources Code section 4291. 1 That section, so far as it is pertinent herein, requires any person who owns or controls any building in, upon or adjoining forest-covered lands to maintain a firebreak of a specified width around a building by removing flammable growth therefrom. (Id., subd. (a).) Section 4021 makes the wilfu...
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Opinion Appellant was in an information with violating Penal Code section 12021, possession of a firearm by a convicted felon. Appellant’s Penal Code section 1538.5 motion to suppress the evidence of a .22 caliber pistol taken from him by police was denied. A similar motion made during the trial was likewise denied. The jury returned a verdict of guilty and appellant was sentenced to 180 days i...
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Opinion • Defendant appeals his conviction for arson (Pen. Code, § 448a), 1 arguing insufficiency of the evidence to support the finding of guilt, improper admission of evidence seized from his automobile, and improper admission of his statements to the police at the hospital. During the early morning hours of 25 August 1968 a fire of incendiary origin largely destroyed a restaurant in Covi...
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OPINION Jerry Brandow was charged by grand jury indictment with two counts of pandering, two counts of attempted pandering, and one count of conspiracy. On motion under Penal Code section 995 all charges were dismissed except one count of pandering and a second count of attempted pandering. The defendant’s motion to suppress evidence of telephone conversations (Pen. Code, § 1538.5) and his subs...
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12 Cal.App.3d 756 (1970) 90 Cal. Rptr. 831 THE PEOPLE, Plaintiff and Respondent, v. HENRY HOUSE, Defendant and Appellant. In re HENRY HOUSE on Habeas Corpus. (Two Cases.) Docket Nos. 17842, 18093. Court of Appeals of California, Second District, Division Five. November 6, 1970. *760 COUNSEL Paul T. Locke, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Thomas C....
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Opinion This is a tort action wherein the plaintiffs sought to recover damages for the alleged wrongful death of their 19-year-old son, who was killed when a sports car in which he was riding, being driven by the defendant, collided with a freeway fence. The plaintiffs proceeded on two theories: (1) Their son was a passenger at the time of the accident and the defendant was negligent in t...
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12 Cal.App.3d 805 (1970) 91 Cal. Rptr. 67 SCOL CORPORATION, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Docket No. 35898. Court of Appeals of California, Second District, Division Three. October 9, 1970. *807 COUNSEL Miller & Miller, Robert M. Miller and Robert L. Miller for Plaintiff and Appellant. Jackson S. Niebrugge and Frank G. Brookings as Amici C...
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Opinion Statement of the Case Plaintiff, as prime contractor on the project, brought an action to recover damages against defendant Culver City Unified School District (hereinafter District) and defendant Flewelling & Moody (hereinafter Flewelling), the architect retained by the District, caused principally by an alleged misrepresentation in the plans and specifications as to the...
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Opinion Defendant has appealed from a judgment convicting him of possessing a restricted dangerous drug in violation of section 11911 of the Health and Safety Code, and of possessing a concealable weapon after having suffered a prior felony conviction, in violation of section 12021 of the Penal Code. He was sentenced to state prison on the second charge, and to the county jail for one year on the ...
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Opinion The notice of appeal recites that it is from an “Order overruling objections to report of inheritance tax appraiser, fixing inheritance tax, and denying motion to approve report of the probate commissioner.” We treat the appeal as from “an order fixing an inheritance tax,” the remaining orders being nonappealable. (See Prob. Code, § 1240.) Lois Card Crenshaw, executrix of the estate of Et...
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Opinion Appellants were proponents of an initiative petition filed with the Lakeport City Council which was the governing body of Lake-port Municipal Sewer District No. 1. The petition concededly met the requirements of Elections Code sections 4000-4023 and 5150-5162. Upon advice of its counsel that the petition’s object was not a proper subject of the initiative process the city council ...
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Petitioner Hamilton C. Martins (hereafter Hamilton) seeks to prohibit the Marin County Superior Court from enforcing contempt orders against him for failure to pay certain sums due under a “Marital Settlement Agreement” with real party in interest Corienne A. Martins (hereafter Corienne). As relevant to the contentions of the parties, the agreement provided: “Our purpose, subject to approval ...
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Opinion Defendant Delvin Young was convicted by jury verdicts of three offenses relating to narcotics and restricted dangerous drugs. Three concurrent county jail sentences were ordered for a maximum of 60 days. He appeals from the judgment. His first contention is that there was no probable cause for the issuance of a search warrant which turned up the evidence on which he was convicted. The...
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Opinion The People have appealed from a superior court order setting aside an information based upon a motion made pursuant to Penal Code section 995. The order was grounded on the testimony taken at the preliminary examination. Following the earlier hearing, the magistrate, a municipal court judge, had found reasonable and probable cause to believe that each of the defendants, Dallas Arnold ...
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*891 Opinion In a prior action in the municipal court, plaintiff sought to recover $1,145.41 for labor and services rendered. A writ of attachment was issued against two defendants, one a corporation and one a partnership, each bearing the name of Computer Graphics, and assets of the defendants were seized. Those assets were released when the defendant in this action (Fidelity an...
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Opinion At the conclusion of the opening statement by counsel for plaintiff in a nonjury trial, defendant Capistrano Saddle Club (hereinafter Capistrano) successfully moved for a judgment of nonsuit. (Code Civ. Proc., § 581c; Gonsalves V. City of Dairy Valley (1968) 265 Cal.App.2d 400 [71 Cal.Rptr. 255].) Plaintiff appeals. We recite the evidence which plaintiff...
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*905 Opinion Plaintiffs appeal from a judgment dismissing their complaint in inverse condemnation after the state’s general demurrer was sustained without leave to amend. The complaint alléges that the bank of the Sacramento River on plaintiffs’ lands has been and will continue to be eroded “by the operation of the Central Valley Project” and “by the change in the natural st...
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Opinion Petitioner, following a preliminary examination, has been charged in an information with possession of heroin and possession of narcotic paraphernalia in violation of sections 11500 and 11555 of the Health and Safety Code. By his petition for a writ of prohibition he seeks review of an order of the respondent court which denied his motion to suppress evidence. He claims that an uncorrobora...
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*925 Opinion Defendant Jerome D. Miller, following a trial by jury, was convicted of two counts of rape by force and violence and threats of bodily harm (Pen. Code, §§ 261, subd. 4, 261, subd. 5), two counts of robbery (Pen. Code, § 211), and two counts of “simple kidnaping” (Pen. Code, § 207). The kidnaping convictions were of lesser offenses included within the information’s charges of kidn...
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I concur in the opinion. Additionally, I conclude that Denton for his own protection was justified in taking the action he took. After two suitcases and a cardboard box had been left by Pranke in Denton’s apartment and in his custody, Denton learned from the police they were looking for Pranke in connection with a burglary investigation. Denton invited the police inside “to check the property.” I ...
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Laveme Cobas came to her death about 9:30 a.m. on March 22, 1968, apparently by strangulation. Her ex-husband, defendant David Ray Cobas, was charged with her murder. A jury found him guilty of murder, second degree; the appeal is from the judgment thereafter entered on the jury’s verdict. There were no eyewitnesses to the killing. However, at the trial the People produced substantial evidence,...
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Opinion Plaintiff brought this action to recover property taxes paid under protest. The first cause of action alleged that plaintiff was not the owner of some 2,022 water service connections and meters which, for that reason, were improperly assessed to it for the fiscal year 1967-1968. The second cause of action sought judicial review of the denial by defendant assessment appeals board (...
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*972 Opinion possession of marijuana, in violation of section 11530 of the Health and Safety Code. He was granted probation. He has appealed from the judgment (order granting probation). For the reasons set forth below, we affirm. The sole contention made on this appeal is that the evidence against defendant was improperly admitted because obtained by illegal means. That contention is not o...
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Opinion In a declaratory relief and mandamus action brought by the Transport Workers Union, in its representative capacity, against the City and County of San Francisco, its Mayor, board of supervisors, civil service commission and controller, we are called upon to decide whether the trial court properly interpreted a provision in section 151.3.1 of the Charter of the City and County of S...
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Opinion Appellant Lucien Bascou appeals from a court judgment (jury waived) denying recovery for the value of industrial equipment on property involved in this condemnation action. Question Presented The date of service of summons is the proper date for determining appellant’s interest in the equipment involved herein and the date of trial of the action is the proper date of determination o...
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*992 Opinion There are triable issues of fact in this mandate proceeding and the trial court erred in granting a summary judgment in favor of respondents, the City of Marysville and its officials. Subject of the controversy is a land use proposal involving a square block of real estate in a section of the city known as East Marysville. Petitioners seek a writ of mandate to c...
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*1008 Opinion Appellant entered guilty pleas to violation of Health and Safety Code sections 11530 and 11555 (possession of marijuana and possession of narcotic paraphernalia). Appellant contends that the evidence which caused him to plead guilty was obtained by the police in a search of his residence, which was conducted under the authority of a search warrant issued contrary to law. The...
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*1023Opinion This appeal is from an order fixing inheritance tax. The opening brief of appellant (decedent’s daughter, Marian) sufficiently sets forth the initial facts relative to this case:1 “The decedent, Robert, and his wife, Cepha, made mutual wills in 1948 pursuant to an oral agreement whereby all the property of each was left to the survivor, and all the property of the survivor was left t...
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*1031 Opinion Appellant Kenneth M. Pettis, 18 years old and charged with burglary, was proceeded against by way of preliminary examination in the municipal court He moved to have the case certified to the juvenile court under Welfare and Institutions Code section 604. This section as it applies to minors of ages 18 through 21 states: “(b) Whenever a case is pending in any court upon an accusa...
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Opinion Petitioner corporation, of which George Bassman is a stockholder, was issued a license by defendant Welfare Commission to conduct a card club. The license was revoked by the commission after a hearing on an accusation filed by the sheriff’s department alleging violations of certain gambling ordinances. The license appeals board having denied appeal from the commission’s decision, petiti...
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*1045 Opinion In his third amended complaint for negligence and malpractice against a firm of attorneys and a bank, plaintiff, son of the decedent, alleged that on January 24, 1968, Sevigne Hiemstra, decedent’s wife, visited the bank and was introduced to its trust officer, Frederick W. Hearn, a member of defendant law firm, whom she informed that her husband was seriously ill; that defendant...
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Opinion This is an appeal by plaintiff Davies from a judgment entered in favor of defendant Krasna after the trial court granted defendant’s motion for judgment on the pleadings. Two trials and a prior appeal have occurred in this case. In the first trial defendant’s motion for nonsuit was granted as to plaintiff’s cause of action on an implied in law obligation for breach of trust o...
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*1059 Opinion Rita M. P., born March 13, 1956, was declared a dependent child of the juvenile court sitting in Orange County on November 7, 1966, and continued in that status as the result of annual reviews and orders made in November of each year until 1969. An annual review hearing was had on November 21, 1969, when the minutes show the minor was continued as a dependent child, although n...
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Opinion These two appeals which pose common questions of law are consolidated for decision by this court and for the court’s ruling on motions to dismiss the appeals. Each appeal is from the superior court’s denial of a petition for a writ of mandate which sought to compel the respondent school district to permit petitioners to perform duties as the district’s psychologist and psychometrist r...
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Opinion Defendant was charged by information with possession of heroin for sale. (Health & Saf. Code, § 11500.5.) He pleaded not guilty. A motion under section 995 of the Penal Code was denied. A motion under section 1538.5 of the Penal Code was submitted on the transcript of the preliminary hearing, plus additional testimony by defendant and by the arresting officer. The motion was denie...
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Opinion Petitioner Russell was charged in a two-count information with the offense of possession of a restricted dangerous drug in violation of Health and Safety Code section 11910, and possession of such a drug in the “San Diego Honor Camps” in violation of Penal Code section 4573.6; moved to dismiss the information pursuant to Penal Code section 995, upon the ground the evidence before ...
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Opinion The within minor appeals from an order of the juvenile court adjudging him to be a ward thereof under Welfare and Institutions Code section 602, in that he had committed an armed robbery. (Pen. Code, § 211.) *1122 Appellant’s sole contention on appeal is that his guilt had been adjudged by the “preponderance of evidence” standard, as in civil cases, instead of the “proof beyond a re...
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Opinion This is an appeal from an order dated November 14, 1969, finding appellant to be a ward of the juvenile court as a person “beyond the control” of his parents, pursuant to section 601 of the Welfare and Institutions Code. The facts, admitted at the hearing, were that the minor, who was about 14 years old, on Friday, September 19, 1969, left home with his mother’s consent to spend the w...
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Opinion This is an appeal by defendant Joseph Tiffith from a judgment convicting him of kidnaping, robbery and auto theft. The evidence may be summarized as follows: Evangeline Bustamante testified that on October 10, 1968, she left her home at 7:30 a.m. to warm *1132 up her car before driving her daughter to a babysitter. She took with her a wallet containing $125 to $130 in currency. Mrs....
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Opinion was arraigned on May 12, 1969, in the Municipal Court of the Pasadena Judicial District upon a complaint charging six misdemeanor violations. He entered a plea of not guilty as to all counts, and trial was set for June 4, 1969. On May 14, 1969, he was released on bail and has remained at liberty on bail since that time. On May 27, 1969, on motion of the respondent, the cause was conti...
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*1166 Opinion This is an appeal by plaintiff wife from a nunc pro tunc order modifying a judgment entered in a default annulment proceeding. The order is appealable as an order made after judgment. (Code Civ. Proc., § 904.1, subd. (b).) Wife sued for an annulment on August 2,1968, alleging that the marriage was void because defendant husband was married to another person. The complaint al...
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Opinion This is an appeal by Jack W. Crumley, Marshall L. Foreman, Jr., and Robert E. McGinnis (hereafter referred to as “appellants”) from an order of the probate court denying confirmation of a sale of real property which had been made by the executor to the appellants. The order is appealable under Probate Code section 1240. A sale of the property after due notice was made at a private sale for...
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Opinion Defendant pleaded not guilty to an information charging him with grand theft. (Pen. Code, § 487, subd. 1.) Defendant waived jury trial and his right to confront and cross-examine witnesses. Pursuant to stipulation the cause was submitted on the transcript of the preliminary hearing. Defendant was found guilty. He was placed on two years probation conditioned, among other things, upon hi...
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Opinion In a four-count indictment defendant was charged with the offenses of assault with intent to rape Julie Ann Crosby, assault with intent to rape Irene Lamb, assault upon the person of Irene Lamb by means of force likely to produce great bodily injury, and unlawfully loitering on private property; by jury verdict was found guilty of the offense of assault with intent to rape Irene Lamb an...
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*1186 Opinion Petitioner seeks prohibition for two purposes: (1) To suppress the admission in evidence of six amphetamine tablets which were seized by law enforcement officers as a result of an alleged illegal search, and (2) to restrain the superior court from conducting any further criminal proceedings upon an information charging him with unlawful possession of dangerous drugs...
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Opinion In this personal injury action, plaintiff had a verdict and recovered judgment in the amount of $15,000 against defendants E. L. Yeager Construction Company (hereinafter Yeager) and Southern California Gas Company (hereinafter Gas Company). Defendants appeal. Although the Gas Company contends that there is no evidence of its negligence and both defendants contend that plainti...
Views: 8
*5 Opinion Defendant from a in the sum of $30,000 plus accrued interest entered in favor of plaintiff after a trial by the court upon a supplemental complaint for tortious damages for wrongfully effecting a trustee’s sale of a parcel of real property. 1 The facts, essentially undisputed, are as follows: In 1959 defendant was the owner of a parcel of unimproved real p...
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Opinion This is an appeal by the State Board of Chiropractic Examiners, (hereinafter the Board) from a judgment of the Superior Court of Los Angeles County granting a writ of mandate. The writ was sought by Cleveland Chiropractic College (hereinafter Cleveland) to have the court order the Board to set aside its decision of March 19, 1968, which withdrew approval of Cleveland as an approve...
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*51 Opinion Plaintiff an attorney, who in this class action represents himself and about six hundred others “similarly situated,” appeals from a judgment in defendant’s favor. The judgment followed the superior court’s granting of a motion for summary judgment. The complaint was filed on December 9, 1968, two weeks after defendant’s football team had been selected to play in...
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Opinion After a court trial defendant was convicted of second degree murder. The facts revealed that the victim died as a result of an overdose of heroin which had been furnished to her by the defendant. (Health & Saf. Code, § 11501.) In finding the defendant guilty the trial court expressed a reasonable doubt that, on the evidence before it, defendant had actually injected the heroi...
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Opinion Defendants appeal from a judgment in the principal sum of $34,924.50 entered against them in favor of plaintiff Daum Development Corporation (hereinafter, “DDC”) on its first cause of action for anticipatory breach of a written agency contract. The individual coplaintiff (Harry Daum) did not appeal from that portion of the judgment which denied him any recovery. The matter wa...
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Opinion The Attorney General has transmitted to us an order of the United States District Court for the Northern District of California *88granting Alex S. Anderson’s petition for habeas corpus and directing the Superintendent of California Men’s Colony, West, at Los Padres to produce the petitioner before that court unless within 60 days the State of California reinstates his appeal. The Attorney...
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Opinion —Defendants, the City and County of San Francisco (“City”) and St. Francis Homes Association (“Association”) appeal from a judgment awarding plaintiff Edith M. Ackley $54,928.72 for personal injuries. The City also appeals from orders denying judgment notwithstanding the verdict and a new trial; the latter is nonappealable (Rodriguez v. Barnett (1959) 52 Cal....
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Opinion This is a petition for writ of mandate and writ of prohibition to respondent court to vacate its order declaring a mistrial and order respondent clerk to enter judgment on the jury verdict; to respondent clerk to enter such judgment; and prohibiting retrial. We herein grant a writ of mandate vacating said order and ordering judgment on said verdict. Real parties in interest Orlo M. and Fa...
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11 Cal.App.3d 121 (1970) 89 Cal. Rptr. 418 THE PEOPLE, Plaintiff and Respondent, v. HAROLD CHESTER WASLEY, Defendant and Appellant. Docket No. 5540. Court of Appeals of California, Third District. September 4, 1970. *122 COUNSEL George O. Brekke, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, Edsel W. Haws and Carol Hunter, Deputy Attorne...
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*131 Opinion Plaintiff Lester J. Nelson and his assignor and cross-defendant Panda Societa Per LTndustria Cinematográfica S.p.A. (“Panda”) appeal from the judgment herein which: (1) denies plaintiff recovery on his complaint following a grant of a dismissal (nonsuit) 1 on his counsel’s opening statement, and (2) adjudges defendant and cross-complainant Specialty Record...
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Opinion By their petition for a writ of prohibition, California State Council of Carpenters and its Orange County subsidiary (the union) challenge the jurisdiction of the Superior Court of Orange County (respondent court) to entertain and try an action there pending, #167366, brought by real parties in interest Strom Drywall Contractors and others (Strom) as plaintiffs against the union a...
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*166Opinion —Michael John Ress (defendant) appeals from an order granting probation following his plea of guilty to a charge of possession of marijuana. His motion to suppress evidence under Penal Code section 1538.5 had previously been denied. At the time he changed his plea to guilty other charges for which he had been bound over were dismissed. They were for conspiracy to pervert and obstruct ...
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Opinion —In the Municipal Court of the Los Angeles Judicial District defendants were charged with, and at a consolidated trial were tried and convicted by a jury of violating Penal Code section 653g. On appeal the Appellate Department of the Superior Court of Los Angeles County reversed the judgments on the ground that they were not supported by substantial evidence, and certified the transfer ...
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Opinion Plaintiff appeals from a judgment entered in favor of defendant realtors under section 631.8 of the Code of Civil Procedure 1 after plaintiff had completed presentation of his evidence in a nonjury trial of his action for recovery of $10,000 paid under a land sale contract. The evidence discloses the following relevant facts: In the spring of 1964, plaintiff (an experienced attorney...
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*195Opinion After a court trial, a jury having been waived, defendant was convicted of murder, first degree (Pen. Code, §§ 187, 189). He is appealing from the judgment. This is the defendant’s second trial. The first conviction, after a jury trial, was reversed because the jury had not been instructed properly on diminished capacity. (People v. Aubrey (1967) 253 Cal.App.2d 912 [61 Cal.Rptr. 772].)...
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Opinion This is an appeal by plaintiff from an order reducing monthly payments for alimony and support of two minor children, until further order of court. Defendant having sought such reduction on the ground of changed circumstances, the first question is whether the evidence supports the implied finding that his reduced finances warranted the reduction; the other issue raised by appellant rel...
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Opinion This appeal embodies a controversy between a residuary charitable legatee and relatives of the testatrix receiving specific bequests under the will. The relatives seek to have federal estate taxes and state inheritance taxes paid from the residue, and the probate court upheld their position. The charitable legatee, Shriners Hospitals for Crippled Children, appeals, contending that the dea...
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Opinion Respondent Frank P. Donovan, on May 3, 1966, through the efforts of one Salmonson, an independent salesman, executed a written contract with Venco Construction Company, a corporation (Venco) for the conditional sale of four items of construction equipment totaling in value, including finance charges, the sum of $26,742.39 (Sale). Appellant Wech *212 sler, an attorney ...
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*229 Opinion The Real Estate Commissioner, as the respondent to an application filed by plaintiffs as judgment creditors of a licensed real estate salesman under provisions of law governing the Real Estate Education, Research and Recovery Fund (Bus. & Prof. Code, §§ 10470-10483, particuuarly §§ 10471-10474), has appealed from so much of an order awarding each of the plaintiffs $1...
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Opinion Roy Allen Stewart pleaded not guilty to four counts of robbery (Pen. Code, § 211) and one count of murder (Pen. Code, § 187) and admitted two prior felony convictions. His motion to suppress certain evidence (Pen. Code, § 1538.5) was denied. The jury found the defendant guilty of one count of murder in the first degree and four counts of robbery in the first degree and fixed the murder ...
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*251 Opinion Petittioner seeks a writ of mandate to suppress certain evidence found in her purse after her arrest on July 15, 1969, which evidence forms the basis of a two-count information pending against her in the respondent court. Facts On July 14, 1969, Officer Tingirides obtained a search warrant from a magistrate permitting him to search apartment B at 4067 Abour...
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Opinion In a jury trial, severed from that of codefendant Houtz, defendant Joines, was found guilty of first degree robbery. (Pen. Code, § 211.) He was sentenced to the state prison. He appeals from the judgment and from an order denying motion for new trial. Read in the light most favorable to the verdict, the record amply supports the implied finding that defendant participated in an early-mo...
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*273 Opinion The Van Leuvens, 1 husband and wife, then 80 and 84 years, respectively, instituted this action for declaratory relief and damages. The defendants and appellants are three doctors who, together with their clinic manager, Roy Metcalf, purchased the Van Leuvens’ 1,200-acre dude or guest ranch located in Tulare County. The Van Leuvens retained a life estate i...
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*279 Opinion The basic question for decision is whether the respondent “escaped” within the purview of Penal Code section 4532, subdivision (a) . 1 The facts are not in dispute. Respondent pleaded guilty in the Superior Court of Kern County to violating section 12025 of the Penal Code and section 11556 of the Health and Safety Code, both misdemeanors.1 2 Probation was denied and sentenc...
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*288 Opinion Defendant appeals from an order granting plaintiffs’ application for an order directing payment of a prior judgment for compensatory damages against defendant out of the Real Estate Education, Research and Recovery Fund. 1 (Bus. & Prof. Code, §§ 10470-10483. 2 ) Statement of the Case On July 10, 1967, plaintiffs obtained a judgment...
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Opinion The position of Lawrence E. Dobbins as a police officer with the Los Angeles Police Department (the Department) was terminated on grounds of physical unfitness. Dobbins attempted to compel his reinstatement and here appeals the trial court’s decision affirming the propriety of the administrative action. Dobbins on September 24, 1964, after completing a one-year probationary p...
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Opinion The trial court entered a judgment dismissing the action pursuant to Code of Civil Procedure section 583, that is, for the plaintiff’s failure to bring the action to trial within five years of its filing. Plaintiff appeals. The action was filed October 10, 1963. On theories of negligence and inverse condemnation, it sought damages for the flooding of plaintiff’s land allegedly caused ...
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Opinion After a trial by jury, defendant was found guilty of a violation of section 288 of the Penal Code 1 (lewd and lascivious conduct). He appeals from the judgment of conviction. *316 L, defendant’s 13-year-old stepdaughter, testified that on the night of November 6,1966, defendant forced her into sexual relations both with him and L’s brother T, age 10. Both children testified that o...
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Opinion Plaintiff appeal from a judgment of dismissal following an order sustaining a demurrer to their amended complaint without leave to amend. The amended complaint sought a change in the boundaries of the five *328 electoral divisions of the Imperial Irrigation District; was filed by the plaintiffs as registered voters on behalf of themselves and all registered voters within Divisions O...
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Opinion Plaintiff appeals from judgments entered pursuant to orders sustaining demurrers to his first amended complaint without leave to amend. The complaint is framed in two causes of action. The first alleges that defendant Davies, Mayor of the City of Modesto, and defendants Clark, Coyle and Stone, police officers of that city, conspired with each other and with a newspaper editor and the Di...
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Opinion This quiet title action presents the question of ownership of an alley, 20 feet wide. The court decreed ownership of the westerly 10 feet of the alley in the respondents and the easterly 10 feet in appellant. Appellant contends he owns the entire 20 feet. The facts are not in dispute and there is no issue of credibility *351 of witnesses. The solution lies in the...
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I concur in the reversal and remand for new trial for the reasons that: (1) the trial court used the wrong measure for determining damages, viz., loss of profits based on gross rather than net profits, and (2) highly speculative and unrealistic projections of increased sales volume were used in fixing damages, i.e., in estimating probable sales of Seaside as against Goodrich products. A petition f...
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Opinion Plaintiff, Bernice Billups (hereafter Bernice), individually and as the guardian ad litem of her minor son Anthony, appeals from a judgment decreeing that her individual cause of action is barred by Code of Civil Procedure section 340, and that the minor’s cause of action is barred by his failure to file a creditor’s claim pursuant to Probate Code sections 700 and 707. The content...
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Opinion Plaintiff, William D. Handelsman, appeals from a judgment entered on a special jury verdict in favor of defendant, San Francisco Chronicle, in a libel action. Plaintiff contends that; 1) the evidence does not support the judgment that the publication was within the absolute *385 privilege of Civil Code section 47, subdivision 4; 2) the trial court erred in submitting ...
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Opinion The trial court found defendant guilty of possession of heroin (§ 11500, Health & Saf. Code); he admitted two prior convictions of violations of section 11501, Health and Safety Code. Defendant’s motion for new trial and application for probation were denied and he was sentenced to the state prison. At the same time probation on a previous conviction of sale of *393heroin (§ 11501, Health...
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Opinion This is an appeal and cross-appeal from the judgment and decree entered after hearing on a petition to determine heirship. The facts are that as of February 1, 1963, Martin and Martha Mader had been married for over 30 years, and remained husband and wife until Martin’s death on March 16, 1967. The issue of this marriage were three daughters; Ruth, who married William H. Hall; Ilse, w...
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Opinion In an indictment returned by the Grand Jury of San Bernardino County, defendant was charged in count I with sale of marijuana (Health & Saf. Code, § 11531), and in count II with selling a restricted dangerous drug (Health & Saf. Code, § 11912). By amendment to the indictment, defendant was further charged with two prior felony convictions, both for violation of Health and Safety C...
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Opinion In this proceeding where the superior court granted a peremptory writ of mandate to plaintiff City Manager of the City of Oakland, compelling defendant Civil Service Board of the City of Oakland (hereinafter referred to as the “Board”) to set aside its decision that Robert Liquori, the real party in interest, had been coerced into resigning his position as a police officer for the...
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Opinion Defendant James C. Matlock was convicted by jury verdicts of an assault with a deadly weapon (Pen. Code, § 245 subd. (a)) and possession of marijuana (Health & Saf. Code, § 11530). On the assault charge he was sentenced to state prison; execution of the sentence was thereupon suspended and he was placed on probation. On the narcotics charge imposition of sentence was suspended and...
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Opinion In this action plaintiff sought damages for breach of contract. The trial was by the court, and judgment was entered for defendants. Plaintiff appeals. Plaintiff, by its salesman Edward Blakemore, commenced negotiations with defendant Karadanis offering to supply certain mirrors and tub and shower enclosures for the Tahoe Inn under construction by defendant partners Karadanis...
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Opinion Each of these four workmen’s compensation cases involves facts of which the following pattern is typical: The employee had been furnished benefits by his employer’s workmen’s compensation carrier. The carrier later intervened or filed a lien claim in the employee’s civil action against an alleged third party tortfeasor for the same injuries. In that action, the court or jury found...
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*485 Opinion Defendant was charged by information with one count of armed robbery in violation of Penal Code, section 211. After trial by jury, he was found guilty as charged of first degree robbery, probation was denied, and he was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction. 1 Contentions On appeal, defendant makes the ...
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Opinion Defendant was charged by information with three counts of forgery (Pen. Code, § 470) and two prior felony convictions. After trial by jury, he was found guilty as charged, probation was denied and he was sentenced, on each count, to state prison for the term prescribed by law, the sentences to run concurrently. Defendant appeals from the judgment of conviction. Contentions ...
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Opinion Defendant John Fritz was convicted after a trial to the court of furnishing to another a restricted dangerous drug, to wit, phenobarbital, a violation of Health and Safety Code section 11912. He appeals from the judgment thereafter entered. Because of the contentions made by Fritz we deem it proper to reiterate rules binding on an appellate court on review of a judgment against a defe...
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*530Opinion Defendant was charged in a two-count information with selling heroin on the 16th and 18th of April, 1969. It was further alleged that he had prior to that date suffered seven prior felony convictions as follows: (1) robbery in Missouri in 1938, (2) robbery in Alameda County in California in 1943, (3) escape in Marin County in California in 1952, (4) violation of section 11500 of the H...
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Opinion In December 1966 petitioner Greenfield was convicted of second degree burglary (Pen. Code, §§ 459-461) and receiving stolen goods (Pen. Code, § 496). Because both offenses grew from a single transaction, sentence on the latter count was suspended. Greenfield *539 appealed. On June 3, 1968, his conviction was affirmed by the Court of Appeal, Second District, Division One. (People v. ...
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Opinion By this action, plaintiff sought quiet title to real property and damages, both compensatory and exemplary, against defendants Ontario Savings and Loan Association (hereinafter Ontario Savings), Ontario Title Service Company, Inc. (hereinafter Ontario Title), and James Iler. The issues revolve around the validity of a trustee’s sale to Ontario Savings and a subsequent sale by that...
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Opinion Appelant, Candlestick Properties, Inc. (Candlestick) filed an application with the San Francisco Bay Conservation and Development Commission of the State of California (BCDC or Commission) for a permit to fill a parcel of land. After hearings the permit was denied. Candlestick then filed an action with the San Francisco Superior Court seeking a review of BCDC’s action by way of a ...
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Opinion This is an appeal from a judgment of conviction of one count of bribery. In an indictment filed in Los Angeles on December 28, 1967, defendants Karl L. Rundberg and Robert Nicholas Starr were charged in count 1 with bribery in violation of the provisions of section 68 of the Penal Code in that they did on or about the 30th day of March 1967 in the County of Los Angeles corruptly receive fr...
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Opinion mission of the case to the court on the transcript of the preliminary exami- Carl Eugene Jordan appeals, following a stipulated sub-*599nation, from a judgment of conviction of one count of grant theft. (Pen. Code, §§ 484, 487, subd. 1.) A second count of grand theft was dismissed on motion of the prosecutor. According to the evidence offered by the People at the preliminary examination,1 ...
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Opinion Robert Cordova Armenia (defendant) appeals from a judgment imposing sentence to prison after a jury found him guilty of a violation of Penal Code section 4532, subdivision (b), escape from custody. Defendant was charged by an information in Mo counts, on one of which he was convicted; the second charged a violation of Penal Code section 148, obstructing an officer in the performance o...
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Opinion —Leola Smith, after a discharge from her position as licensed vocational nurse following the hearing provided for by section 154 of the Charter of the City and County of San Francisco (Stats. 1948, *610 p. 214), wherein she was represented by counsel, notified the civil service commission that she appealed. 1 On April 15, 1968, the commission sustained the ...
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Opinion Plaintiff appeals from an order granting defendant’s motion to vacate a default and set aside a default judgment subsequently entered against it in the sum of $102,962 (damages for personal injuries), the grounds of which were inadvertence, mistake and excusable neglect (Code Civ. Proc., § 473). He claims the supporting declarations are devoid of any showing which warranted the relief s...
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Opinion Defendant has appealed from an order 1 denying its motion to set aside its default and a judgment taken following that default. (Code Civ. Proc., former § 963, subd. (2) [now § 904.1, subd. (b)].) Defendant contends that the court erred in proceeding by default because it had an answer on file, and that, in any event the court erred in failing to grant it relief under t...
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Opinion Respondent agency appeals from a judgment by which the court below issued a peremptory writ of mandate directing respondent to pay petitioner the retirement benefits provided for in Government Code section 21292.8. 1 That section, as a part of the general state disability retirement scheme, provides, in relevant part, that upon retirement for industrial disability of an...
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Opinion Defendant Refuse Disposal Corp. appeals from a judgment in condemnation whereby it was determined that it had no compensable interest in the property condemned by plaintiff City of Industry. This determination was reached at an interim trial (Code Civ. Proe., § 1246.1) conducted pursuant to pretrial conference order; therein the trial court found that subsequent to the institution...
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Opinion Defendants Queen of Angels Hospital and Ali Allahyar appeal from a judgment entered upon the verdict of a jury in favor of plaintiff in an action for personal injuries. The uncontradicted facts disclose that plaintiff, age approximately 70 and in good health, while legally upon premises owned and operated by defendant hospital, was involved in a collision with a gurney (food cart) con...
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Opinion Plaintiffs, surviving widows and children of two deceased State employees, appeal a judgment of nonsuit in favor of all defendants entered after their counsel made his opening statement at the trial of their wrongful death action. On October 18, 1966, about 8 a.m., plaintiffs’ deceaseds were passengers in a state-owned car driven by another State employee, John Gilmore, on their way t...
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Opinion The Attorney General appeals from an order instructing trustees, amending orders of distribution nunc pro tunc and *683modifying a testamentary trust under the cy pres doctrine, which the court entered following stipulation of an individual life beneficiary of the trust and four charitable beneficiaries. The testamentary trust involved in this litigation was established by a will drafted ...
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Opinion Donald Theodore Grant appeals his conviction, after jury trial, of lewd and lascivious conduct with David, the 10-year-old son of his wife by a previous marriage. We need not detail the defendant’s acts as he does not challenge the sufficiency of the evidence to support the conviction. Grant unmeritoriously contends the trial court erroneously failed to give his proposed instruction: ...
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Opinion Cross-complainant Transamerica Title Insurance Company appeals from a judgment entered on a jury verdict denying recovery against James S. Green, notary public, and his surety, General Insurance Company of America, for damages arising because of his certificate of acknowledgment of two imposters’ signatures; and from an order denying its motion to strike a cost bill. Green an...
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Opinion This appeal raises these two substantive issues: Does recordation (Code Civ. Proc., § 674.5) of a child support order payable monthly in stated amounts per month for an indefinite period create a lien as to the installments which become payable subsequent to the date of recordation? If so, is it superior to the liens of creditors who record their abstracts of judgment (Code Civ. P...
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Opinion This is an appeal by an insurer (defendant and appellant) from a declaratory judgment wherein the trial court determined that its insureds (plaintiffs and respondents) were entitled to uninsured motorist coverage under an automobile liability insurance policy. The lawsuit arose when the plaintiffs were involved in an accident with an uninsured motorist on November 14, 1964. A...
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Opinion By complaint filed in the Municipal Court for the Modesto Judicial District, appellants were charged with knowingly having in their possession and exhibiting lewd and obscene motion pictures in violation of section 311.2 of the Penal Code, a misdemeanor. Appellants moved the court to suppress the evidence and exclude the press and public from the trial. The motions were denied. Appellan...
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Opinion Respondent Carroll, an employee of Kern County, was discharged for dishonesty by his supervisor, the road commissioner, on March 29, 1967. Carroll had stolen one dollar from the employees’ coffee fund. When questioned, he first denied that he had taken the dollar, then *730 admitted it, making conflicting explanations. Carroll was a 10-year employee of the county with no prior charges...
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Opinion Petitioner was charged with 15 different felonies, each in a separate indictment returned by the Fresno County Grand Jury on May 15, 1969, in respondent court. Numbers 1 and 15 charged conspiracy to receive stolen property and conspiracy to commit grand theft, auto, respectively; numbers 2 through 14 charged him with receiving stolen property. He was arraigned on the 15 indictments, ple...
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Opinion A petition filed with the Contra Costa County Juvenile Court under the provisions of article 7, sections 650-664, Welfare and *743 Institutions Code, alleged that Michael M., a minor, aged 17, “did sell a restricted dangerous drug, to wit: a hallucinogen known as lysergic acid diethylamide (LSD) . . . thereby violating section 11912 of the Health and Safety Code of Ca...
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Opinion Appellant, Bob J. Driver, purchased from respondents, Earl and Genevieve Melone, a parcel of land improved with an old and dilapidated house. A few months after the sale was consummated the county fire department posted it as dangerous and declared it condemned because of defective electric wiring. Appellant instituted an action for rescission and damages and claimed at trial that respo...
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Opinion Respondent Norberg took a money judgment in the San Francisco Superior Court against Bruce Schoenfeld, one of the appellants. A writ of execution, issued for enforcement of that judgment, was levied upon appellants’ residence in Marin County. Thereupon appellants commenced an action in the Marin Superior Court, alleging that their property was a protected homestead and seeking an injunc...
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Opinion Appellants sought unsuccessfully to gain invalidation by the superior court of a rezoning ordinance of Contra Costa County, in the unincorporated Orinda area. Injunction and writ of mandate were denied and judgment was rendered against plaintiffs. Although a question of standing exists as to some of the plaintiffs, we have no doubt that three of the plaintiffs, homeowners, are qua...
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Opinion Anthony Citrino appeals, after trial by jury, from a judgment convicting him of robbery (Pen. Code, § 211.) The question is whether identification testimony upon which the conviction rests should have been excluded as tainted by unduly suggestive pretrial photographic identification procedures. On the evening of July 10, 1968, two men entered a pharmacy shortly before closing time. Th...
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Opinion The constitutionality of two gun control statutes, Penal Code section 171e and Penal Code section 12031, subdivision (c), comes before us in an oblique way. The prosecution in this case was for violation of section 11530 of the Health and Safety Code by possession of marijuana. Appellant was convicted and was granted probation for three years upon conditions of his paying a fine and reg...
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Opinion Defendant Newhall County Water District has appealed from a summary judgment in favor of the plaintiff in an action in which he sought a determination and declaration that certain annexation proceedings were invalid and that consequently the territory included in the “Altered Annexation” 1 was not a part of the defendant district. The first question to be determined is ...
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*810 Opinion The trustee in bankruptcy for Wilson Construction Co., depositor, and counsel, who defended it in an attachment action brought by a third party and who had been given a fee lien by it on the attached funds, appeal a judgment upholding a setoif asserted by Union Bank against the funds after the attachment expired due to the lapse of three years. Most of the evide...
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Opinion On February 17, 1970, after a hearing in the superior court, processed under an order to show cause, Dino A. Morelli (Morelli), an intended nonparty expert witness in a personal injury action, was found guilty of contempt of court for failing to appear at a deposition proceeding on October 5, 1967, to which the judge hearing the matter found he had been .validly subpoenaed. Morell...
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Opinion Elias Gonzales Ruiz (defendant) appeals from a judgment imposing sentence for armed robbery (Pen. Code, § 211) and from an order denying his motion for a new trial. The order denying the motion for new trial being nonappealable, the purported appeal therefrom is dismissed. Procedural Background Defendant was first charged by complaint in the justice’s court and at his arraignment ...
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*869 Opinion Appellants husband and wife, plaintiffs below, sustained personal injuries and property damage in a multiple-vehicle collision which occurred on the foggy night of January 4, 1964, near the overpass interchange of Highway 99 and state Highway 198. It is designated as Goshen Interchange and is in the County of Tulare, near the Visalia airport. Nearly one year after the accident, D...
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Opinion Appellant, a minor, was found guilty of (1) selling marijuana (Health & Saf. Code, § 11531), and (2) being present where narcotics were used (Health & Saf. Code, § 11556). He was convicted chiefly upon the testimony of Martin Ortiz, Jr., who worked as an undercover agent for the Los Banos Police Department.1 Ortiz testified that he purchased two marijuana cigarettes from the appellant whi...
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Opinion Following a trial to the court, defendant Leroy James Murray was convicted of robbery of the first degree (Pen. Code, § 211), and assault with a deadly weapon (Pen. Code, § 245). He appeals from the judgment which was thereafter entered. Since he contends that his convictions were “clearly not supportable by the weight of the evidence,” we must here apply the “substantial evidence” ru...
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Opinion —The People seek a writ of mandate compelling the respondent superior court to vacate its order granting the motion of real party in interest to suppress evidence pursuant to Penal Code section 1538.5. We conclude that a peremptory writ of mandate should be issued. Facts Stated in the light most favorable to the order of the superior court suppressing evidence, the record reveals ...
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*897 Opinion Appeal from the dismissal of plaintiffs’ action on demurrer. The legal question is whether because of negligent maintenance of records the state and its employees are answerable in damages for the death of the mother of a former inmate of a state mental hospital who had been released from confinement in a dangerously disturbed condition in June 1968 and who assaulted and killed h...
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Opinion Defendants and cross-complainants Ray Sydenstricker, Bernice Sydenstricker, his wife, and Charlene Marqua, their daughter (hereinafter referred to collectively as “Sydenstrickers”) appeal from the judgments entered in favor of plaintiff Vantress Farms, Inc. (“Vantress”) and defendant and cross-complainant (by interpleader) Buttes Gas and Oil Co. (“Buttes”) et al., respectively. Defendant ...
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Opinion State Board of Chiropractic Examiners (Board) appeals from a judgment ordering issuance of a peremptory writ of mandate that Board set aside its decision to suspend for 60 days the chiropractic Ecenses of Eugene, Luverne and Wayne Anderson and Raymond Null (petitioners). On January 26, 1967, petitioners placed in a Ventura County newspaper *965a full-page advertisement which announced the...
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*973 Opinion This appeal is from a conviction of one count of violation of Penal Code section 470 (forgery) with an admitted prior for burglary (second degree). There are three assignments of error: (1) misapplication of the “multiple admissibility” rule; 1 (2) misuse of photographic evidence as an aid of identification; and (3) inadequacy of trial counsel. Our ov...
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Opinion Defendants were convicted by a jury of first degree robbery (Pen. Code, §§211, 211a), with defendant Suggs admitting two charged prior convictions. Each of the three defendants presents essentially the same contention on appeal, to wit: that representation of all three by the same assistant public defender constituted a deprivation of the right to effective counsel. As will be shown h...
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*994 Opinion Defendants Henry F. Smith and Black & White Taxicab Company appeal from a superior court order denying their motion, under Code of Civil Procedure section 473, to set aside their default and a default judgment which was thereafter entered. Plaintiffs and respondents Grant Sanford and Walter Huntley have chosen not to file a brief on the appeal. Since defendants ...
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Opinion The principal issue on this appeal is the admissibility of testimony of a police officer that he interviewed the foreman and two painters who made up the crew employed by defendants on this job, and that one of the two workmen, whose names the officer did not secure, said he had moved a canvas drop cloth “but he didn’t realize anybody was standing on it at the time.” This conversation w...
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*1008Opinion The appeals by real party in interest, the People, and the Municipal Court of the Southern Judicial District of San Mateo County are from judgments on review by the superior court. The writs of review by the superior court were issued in two independent cases with identical issues and parallel facts. In both cases the superior court decreed that the appellant municipal court acted in ...
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Opinion Respondent Mid-Century Insurance Company, brought this action seeking a declaratory judgment and other equitable relief relative to appellants’ claim of right to payment under the uninsured motorist coverage of a policy of automobile insurance. Appellants filed an answer and a cross-complaint whereby they also sought declaratory relief and, more particularly, an adjudication that ...
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Opinion In its original complaint, Cambridge Dev. Co., Inc. (Cambridge), charged respondents U. S. Financial and U. S. Mortgage with usury arising out of a transaction in which Cambridge borrowed $330,000 from the respondents to finance construction of 12 single-family residences and to pay off an existing encumbrance on the land. On the date of trial, September 30, 1968, Cambridge filed an ame...
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Opinion The Beach brothers, Howard and John, charged with possessing marijuana (Health & Saf. Code, § 11530), possessing marijuana for sale (Health & Saf. Code, § 11530.5), and possessing restricted dangerous drugs (Health & Saf. Code, § 11910), are entitled to a writ of mandate requiring the superior court to suppress evidence illegally found by officers in their closet and bedroom. Thei...
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Opinion The constitutionality by standards of the Constitution of the United States of the one-year residency requirement for voting in California (Cal. Const., art. II, § 1) is challenged by petition for writ of mandate, which was filed with the Supreme Court of California and assigned by that court to us. Petitioners are graduates of the Law School of Southern Methodist University and are a...
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OPINION The petition for an alternative writ of mandate is denied. Petitioners are 12 persons residing in California, some of them in the City and County of San Francisco and others in the County of Los Angeles. They seek writ of mandate to compel the registrars of voters in places of their residence to refrain from enforcing the one-year residency requirement of section 1, article II of the Const...
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Opinion National Telefilm Associates, Inc. (hereafter NTA) appeals a judgment and order of the superior court confirming an arbitration award of $26,000 in favor of Shammas for breach of contract and denying NTA’s motion to vacate or correct the award. Facts NTA, a distributor of television films, contracted with Shammas on 24 March 1966 to supply 200 “good used 16 mm. prini...
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Opinion In an information filed in the County of Orange, appellant was charged with the crime of murder, Penal Code, section 187. The public defender was appointed to represent appellant, and pleas of not guilty and not guilty by reason of insanity were entered. A jury trial was set. Appellant then moved for dismissal of the prosecution, which motion was denied. Appellant withdrew his ple...
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11 Cal.App.3d 1073 (1970) 90 Cal. Rptr. 274 THE PEOPLE, Plaintiff and Appellant, v. ROBERT FRED HARTFIELD, Defendant and Respondent. Docket No. 4004. Court of Appeals of California, Fourth District, Division Two. October 8, 1970. *1075 COUNSEL Cecil Hicks, District Attorney, Michael R. Capizzi and Oretta D. Sears, Deputy District Attorneys, for Plaintiff and Appellant. Launer, Chaffee & Hanna...
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Opinion Respondent Eddie L. Thompson, Sr., suffered an industrial injury while employed as a state disaster service worker. Respondent Workmen’s Compensation Appeals Board (Appeals Board) rated him as having suffered permanent disability of 58 percent. The Appeals Board made a total award of $16,240 and ordered that it be paid at the rate of $70 per week for 232 weeks. *1085 On petition of ...
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11 Cal.App.3d 1096 (1970) 96 Cal. Rptr. 889 SAN DIEGO GAS AND ELECTRIC CO., Cross-complainant and Respondent, v. DAVEY TREE SURGERY CO., Cross-defendant and Appellant. Docket No. 9719. Court of Appeals of California, Fourth District, Division One. September 21, 1970. *1098 COUNSEL Higgs, Jennings, Fletcher & Mack, Joel C. Estes and David D. Randolph for Cross-defendant and Appellant. Luce, Fo...
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Opinion Dale Cooper, an adult son and one of the heirs under the will of G. F. Cooper, deceased, appeals from a judgment approving the executor’s first and final account and directing final distribution of the decedent’s estate. The estate was virtually all community property of decedent and his surviving wife, Clara. Under the will decedent left the residue of his estate in trust naming Security...
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Opinion After a trial by jury, defendant was convicted of a violation of section 211a of the Penal Code (armed robbery). He appeals from the judgment of conviction. *1159 On February 23, 1969, at 7:42 p.m., Dennis Strassburg, a patrolman for the Sacramento City Police Department, received a call of an armed robbery that had just occurred at a Speedee Mart at the comer of Amherst and Meadowv...
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Opinion Defendant Jack Courtney was convicted of the offense of possession of marijuana (Health & Saf. Code, § 11530) following a court trial. Imposition of judgment and sentence was suspended and he was placed on probation. His appeal from the “judgment” will be treated as an appeal from the order granting probation. (See Pen. Code, § 1237, subd. 1.) Courtney’s first contention is t...
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Opinion By orders of the juvenile court Thomas G., a minor, was (1) found to have violated the provisions of Health and Safety Code section 11910, and therefore to be a person described by Welfare and Institutions Code section 602, (2) declared a ward of the court, and (3) placed under the supervision of the court’s probation officer, to reside in the home of his parents. His appeal from the “jud...
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Opinion By petition for a writ of mandate, petitioner, a non-resident, prays that this court command respondent court to enter an order quashing the service on him in the State of Colorado of summons in an action in which his resident ex-wife seeks to establish a Nevada decree of divorce and to modify, by doubling, the amount provided in that decree for the support of the party’s two mino...
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Opinion The appellants are three school teachers who claim their employer, the Richmond School District, made wrongful deductions *1211from their salaries for absences while on strike. It is conceded that their absences were unauthorized and that deductions for unauthorized absences are proper. Appellants contend, however, that the trial court erred in failing to order the district to use the form...
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11 Cal.App.3d 1 (1970) 90 Cal. Rptr. 340 THE PEOPLE, Plaintiff and Appellant, v. ROBERT LINDENBAUM, Defendant and Respondent. (And 17 other cases.)[*] Docket No. 9444. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles. September 4, 1970. *3 COUNSEL Robert C. Gustaveson, City Attorney, and Patrick J. Sampson, Deputy City Attorney, for Plaintiffs and Appellants. Mydl...
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*3Opinion William B. Ward III (Ward) petitioned this court for a writ of mandate, pursuant to Code of Civil Procedure, section 416.3, after the superior court denied his motion to quash service of summons issued on the County of San Diego’s complaint to collect delinquent unsecured property taxes. Real party in interest, the County of San Diego (County), filed opposition, and we issued an order to...
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Opinion Defendants appeal from a judgment awarding to plaintiffs the sum of $29,179.03 and prejudgment interest. This case arises from transactions among participants in a construction project. Guy F. Atkinson Company, prime contractor on a highway project, subcontracted with appellant Miles & Sons, Inc., a corporation, 1 to furnish fill from state-designated pits. Atkinso...
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Opinion Defendant appeals from a judgment entered and sentence imposed following a jury verdict finding him guilty of petty theft. The information also alleged four prior convictions of petty theft, which defendant admitted prior to trial. By reason of said prior convictions and the sentence imposed in the instant case, defendant stands convicted of a felony. (Pen. Code, § 666.) None of the con...
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Opinion Defendants appeal from a judgment which grants to plaintiffs a non-exclusive easement for road purposes over defendants’ land and enjoins interference with the road and which awards plaintiffs compensatory damages of $4,000 and punitive damages of $5,000. For convenience, the parties are called Donnell and Bisso respectively although there is joint ownership of property on each side, an...
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Opinion RATTIGAN, J. McGill University, a residuary beneficiary under the will of Georgiana Melvin, appeals from a probate court order fixing an inheritance tax upon its one-third share of her residuary estate. The sole issue is whether the gift to the university, a foreign educational institution, is exempt from California inheritance tax under subsection (1) of subdivision (c) of Revenue and Tax...
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Opinion Margaret L. Sperling and William F. Sperling sustained personal injuries in a single car accident which occurred on Los Coches Road, near Lakeside, California, on October 21, 1966. They brought suit against Edwin C. Hatch, doing business as Hatch Chevrolet, from whom the car had been purchased three months before, claiming the accident was caused by defective brakes. Trial was com...
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*73 Opinion This is an appeal from an adverse jury verdict in an action brought by appellant, a passenger in an automobile, against respondents, the minor driver and his parents. A previous trial resulted in a nonsuit, which was reversed on appeal (Chappell v. Palmer, 236 Cal.App.2d 34 [45 Cal.Rptr. 686]). Appellant raises in this appeal the sole issue of the propriety of the instructio...
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Opinion Among several statutory standards of eligibility which a person must meet in order to qualify for public assistance (“ATD”) under California’s “Aid to the Needy Disabled” program (Welf. & Inst. Code, § 13500 et seq. 1 ), he must be disabled by a physical or mental “impairment.” We hold on this appeal that an applicant afflicted with alcoholism cannot be disqualified upo...
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Opinion In the early morning hours of September 9, x 966, appellant Cooper, David Thomason and a third young man identified only as “Chuck” *101 were creating a disturbance in the Thriftimart grocery store in Eagle Rock. They were loud and boisterous, and were asked to leave. They did so, but returned an hour and a half later. During this interval, they went to the home of appellant’s steps...
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Opinion — Paula McCoy and Edgar Herbert Vickery II are jointly charged in an information with a violation of section 11530 of the Health and Safety Code, possession of marijuana. They have filed separate petitions in this court seeking relief by way of mandate 1 from an order of respondent court denying their respective motions to suppress evidence pursuant to section 1538.5 of the Penal Code...
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*125 Opinion — People seek relief by way of mandate pursuant to section 1538.5 subdivision (o) of the Penal Code from an order of the respondent court suppressing certain evidence in a criminal action against defendants, Gonzales, Rubio, Esparza and Arketa, who are the real parties in interest herein. Defendants are jointly charged by information with burglary. (Pen. Code, § 459.) On Septem...
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*132 Opinion — From an order of respondent superior court setting aside defendant’s plea of guilty, the People seek relief by both an appeal and petition for writ of mandate. Pursuant to stipulation the briefs filed in the writ proceeding have been deemed the briefs on appeal. Both matters are accordingly treated together in this opinion. People contend: (1) that respondent court exceeded i...
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Opinion Clarence P. Scheidle and Phyllis Scheidle, who are husband and wife, brought this declaratory relief action against Mrs. Scheidle’s brother, Donald P. Joergensen, his wife Dawn S. Joergensen *141and others to determine who was entitled to $4,115.85 in fire insurance proceeds. From a judgment determining the Scheidles were entitled to half of the money and the Joergensens were entitled to ...
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Opinion A. A.Baxter Corporation (plaintiff) brought this action to recover damages caused because defendants, Colt Industries, Inc. (Colt), a corporation, Fairbanks Morse, Inc., a corporation (maker), and Fairbanks, Morse & Company, a corporation (lessor) failed to deliver a truck scale according to a delivery schedule contained in a lease between lessor and plaintiff as lessee. Plai...
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Opinion Defendant was charged with the offenses of attempting to commit an abortion and of committing an abortion; was acquitted of the former and convicted of the latter; was placed on probation; and appeals. An undercover agent acting as a decoy, pretending she was pregnant, *165solicited from and obtained an interview with defendant, a' chiropractor suspected of engaging in the practice of perf...
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Opinion In the first count of an information, filed by the District Attorney of San Diego County, Appellant Ruby Frances Brown was charged with a felony, the burglary of a Big Bear Market on January 15, 1968 (Pen. Code, § 459). The second count charged her with a misdemeanor, contributing to the delinquency of her two minor daughters, Frances Ruby Goldberg, age 16 years, and Patricia Ann ...
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Opinion Defendant appeals from a judgment entered and the sentence passed thereon following his plea of guilty to a charge of violating Health and Safety Code section 11530 (possession of marijuana). The notice of appeal is accompanied by a certificate of probable cause as prescribed by Penal Code section 1237.5. Defendant asserts that his guilty plea was invalid because it was fraudulently i...
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*187 Opinion After a preliminary hearing the district attorney, on February 27, 1970, filed an information in the respondent court charging the petitioners Mercado and Barajas jointly with possession of Benzedrine and Seconal for sale (Health & Saf. Code, § 11911—count II) and possession of marijuana (Health & Saf. Code, § 11530—count III). Mercado and one Bohl, who is not involv...
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Opinion This is an appeal from a judgment entered pursuant to an order sustaining a demurrer to appellant’s first amended, complaint .without leave to amend. The complaint sought to state a cause of action for legal malpractice; the court held the cause was barred by the two-year statute of limitations. (Code Civ. Proc., § 339, subd. 1.) The respondent, an attorney, represented the appellant ...
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Opinion Helen Chamales, former wife of respondent Clifford Smith, Jr., appeals an order denying her motion for reimbursement for court costs *202and attorneys’ fees in obtaining a stipulated judgment against Smith in New York. The background. On 7 August 1961 Mrs. Chamales obtained an order in California requiring Smith to pay her $1,500 a month to support their three children plus amounts to cove...
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*209 Opinion This is an appeal from a judgment entered pursuant to a directed verdict in favor of defendant. Plaintiff sought declaratory relief and damages for breach of a contract to provide loans for the purchase of homes constructed and marketed by plaintiff. Plaintiff and appellant, Kaufman and Broad Building Company (hereinafter referred to as “K and B”), is one of the...
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Opinion After a court trial, plaintiff recovered a judgment against defendant for breach of contract. Defendant appeals from the judgment. By written contract dated August 25,1964, plaintiff agreed to sell defendant about 500 metric tons of lead fume. 1 Under the terms of the agreement the material was to be ready “upon one week to ten days notice.” The contemplated time for delivery was “e...
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*230 Opinion An employee seeks review and annulment of an award of the Workmen’s Compensation Appeals Board insofar as it denies to him the 10 percent increase in benefits provided by Labor Code section 5814 by way of penalty against an employer for unreasonable delay or refusal of compensation.* 1 By the findings and award it was determined that petitioner, a meat c...
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Opinion Each of the four defendants herein was convicted of violation of Penal Code section 288b, oral copulation by force, and of Penal Code section 286.1, sodomy by force, following a grand jury indictment and a jury trial. The sordid facts are these: Richard Ray Patterson was booked into the Fresno County jail about 4:30 p.m. on November 5, 1968, and placed in tank 305. Later that day he w...
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Opinion Plaintiff County of Santa Barbara filed a complaint against defendant Marietta Mae Monical seeking reimbursement of $6,372.95, the value of hospital care and services rendered to defendant’s deceased mother. The complaint alleged that defendant is liable to plaintiff pursuant to section 17300 of the Welfare and Institutions Code. That section provides: “All aid rendered by the county unde...
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Opinion Katherine E. Schlegel was on April 12, 1957, declared to be what is now described as “mentally disordered” and committed for placement in a state hospital where she remains today. *257Joseph Schlegel, her husband, executed a will June 7, 1957, which provided that all of his estate should go to Katherine E. Schlegel, but if she should “fail to survive the distribution of my estate,” all of...
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Opinion Charles Lewis Shirley and two codefendants charged with kidnaping (Pen. Code, § 207), assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and pandering (Pen. Code, § 266, subd. (i)), having waived a jury, were by the court found guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)) and kidnaping (Pen. Code, § 207). He appeals fro...
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Opinion Plaintiff has appealed from a judgment embodied in an order of dismissal for failure to amend. (Code Civ. Proc., § 58Id.) The order was made and entered upon plaintiff’s motion after plaintiff failed to amend following the sustaining of defendant’s demurrer to plaintiff’s complaint with leave to do so (§ 581, subd. 3). Plaintiff’s complaint contains two common counts, reading...
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Opinion By these proceedings petitioner as the Director of the Department of Social Welfare of the County of Alameda seeks to avoid disclosure of information and records concerning a minor who was committed to the department to arrange adoptive placement or to make a suitable plan (Civ. Code, § 226c) after she had been declared free from parental control and custody (see Civ. Code, §§ 232...
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*305Opinion Defendant appeals from a judgment of conviction entered pursuant to a jury verdict finding him guilty of robbery. (Pen. Code, § 211.) Defendant makes several contentions which we shall discuss separately following the narration of the pertinent facts. The Facts On February 14, 1968, at about 2:15 p.m., defendant, codefendant Scott, and one Brady Harvey, the victim of the subject crim...
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Opinion Defendant was charged by information with grand theft, a violation of Penal Code section 487, subdivision 1. Defendant and all counsel waived a jury trial and the cause was submitted on the transcript of the preliminary hearing along with additional evidence and exhibits presented by the defense. Defendant was found guilty and a motion for a new trial was denied. The court ordered the def...
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Opinion Home Owners Auto Finance Company appeals from a summary judgment. Respondent’s complaint for declaratory judgment and quiet title alleges that on May 18, 1965, respondents entered into a conditional sales contract (Security Agreement) with Louis Motor Sales for the purchase of a used 1964 Cadillac for the total purchase of $4992.96, to be paid by respondents to Louis Motor Sales o...
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Opinion In May 1969 the Los Angeles County Grand Jury handed down a six-count indictment charging petitioners with a variety of serious *346 felonies. Each petitioner was named in at least one count. Eventually petitioners moved to quash the indictment on the ground that the grand jury had been, illegally constituted in that eligible grand jurors of a class to which, petition...
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*361 Opinion —By thisapplication for a writ of habeas corpus, petitioner Richard Karpf seeks a review and an annulment of a judgment of the Municipal Court of the Los Angeles Judicial District (hereinafter “municipal court”) adjudging him in contempt and sentencing him forthwith to five days in the county jail. The contempt proceeding below stems from a felony preliminary ex...
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Opinion This controversy arises out of the conduct of defendants Western National Life Insurance Company (hereinafter Western National) and its claims supervisor Tom R. Amason, with respect to a disability insurance policy issued by Western National to plaintiff. The complaint, as amended, consisted of three counts. The first sought a declaration that plaintiff was entitled to monthl...
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Opinion Appellant and five codefendants were charged by information with one count of rape (Pen. Code, § 261, subd. 3) and one count of oral copulation (Pen. Code, § 288a). Defendant was found guilty of both offenses after a jury trial. His motions for new trial and probation were denied and he was sentenced to state prison for the term prescribed by law on the count for rape, the sentence on t...
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Opinion On Sunday night, March 16, 1969, at approximately 11:30 p.m., appellant was walking eastbound on Hollywood Boulevard in Los Angeles. He started across the intersection of Las Palmas Avenue, against a traffic signal which showed “Don’t Walk.” He walked eastbound halfway across the intersection, then turned to his companion and motioned for him to follow. When his companion did not do so,...
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Opinion Appellant, a licensed physician and surgeon, appeals from a judgment denying his second amended petition for writ of mandamus and writ of prohibition. Respondents are the State Board of Medical Examiners (hereinafter, the “board”), its executive secretary, and a district review com *436 mittee of the board (Bus. & Prof. Code, §§ 2123-2124.3). The judgment was entered ...
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Opinion Defendant was indicted for selling LSD and for selling amphetamine, both in violation of section 11912 of the Health and Safety Code. He was found guilty after a court trial and this appeal is from the' judgment of conviction. Defendant contends: (1) that he was denied a fair trial by the prosecution circumventing his obtaining as a witness, Nicky Colangelo, an in *443 former, who w...
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*452Opinion The issues in this case are exactly the same as those presented in the case of People v. Helmholtz, ante, p. 441 [88 Cal.Rptr. 743], decided this date. The defendant was indicted in two counts for furnishing or selling amphetamine and LSD; he was found guilty by a jury on both counts. Probation was denied, and he was ordered committed to the California Youth Authority. This appeal is f...
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Opinion Defendant was charged with possession of marijuana for sale (§ 11530.5, Health & Saf. Code). His motion under section 1538.5, Penal Code, was submitted on the transcript of the testimony taken at the preliminary hearing; additional evidence was offered by both parties. The motion was denied. Thereafter the cause was submitted on the transcript of the preliminary hearing and defend...
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Opinion In 1967 the Attorney General as head of the State Department of Justice (Gov. Code, § 15000) and as permitted by Govern *465 ment Code sections 11180 1 and 15006, 2 commenced an investigation of “Anti-competitive and/or fraudulent activities in the carnival industry in the State of California.” (Hereafter all statutory citations will, unless spec...
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Opinion This matter is before us on the People’s petition for writ of mandate directing respondent court to annul its order of April 6, 1970, granting defendants’ motion under section 1538.5, Penal Code, and suppressing evidence in a pending criminal prosecution against defendants Green and Ramsey. We issued ah alternative writ commanding respondent court to annul its order or to show cause why...
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Opinion Defendants William Barteau and Janis Worthy Barteau appeal their probation orders deemed final judgments after they pleaded guilty to possessing marijuana (Health & Saf. Code, § 11530). They contend the court abused its discretion in denying their motions to withdraw their guilty pleas. Defendants were initially charged by information with possessing marijuana for sale (Healt...
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Opinion Henry C. Phillips possessed a sawed-off shotgun, and was convicted for violating Penal Code, section 12020. After the gun was taken from Phillips in a cafe tussle the cafe cook, Mildred Malone, asked Phillips why he had come to the cafe with a gun. He answered some people had tried to rob him that night. This answer was admissible as an admission he intended to exercise dominion and contro...
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Opinion Appellant asserts that he sustained personal injuries by reason of wrongful diagnosis and treatment by two employees of Mendocino State Hospital during the period February 2 through August 24, 1961. It was not until April 15, 1968 that he filed with the State Board of Control his application for leave to file a late claim, attaching to it a copy of the proposed claim. This applica...
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Opinion Franchise Tax Board of the State of California (herein, the Board) appeals from a portion of a judgment in the amount of $231,257.32 plus interest, which was awarded to plaintiff in this lawsuit to recover taxes paid under protest. The taxes are upon the franchise to do business in California during the years 1954, 1955 and 1956; but in order to make the reading easier, operations...
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Opinion The parties were divorced in the State of Missouri. The decree entered April 20, 1966, by the Missouri court provided: “. . . It is further ordered and adjudged by the court that plaintiff [defendant herein] pay to defendant [plaintiff herein] as alimony the sum of $15,000.00 as alimony in gross, payable in the sum of $150.00 per month . . . until paid in full and in default of anyone [...
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Opinion On October 8, 1965, a jury rendered a verdict for defendants in plaintiffs’ personal injury action. On November 10, 1965, the court made and entered an order granting the motion for new trial of plaintiff Thelma Youngblood (hereinafter, plaintiff). Code of Civil Procedure, section 583, subdivision (b) provides in part as follows: “When ... a new trial [is] granted, [the] action shall be d...
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Opinion The People appeal from a judgment denying their petition for a writ of mandate sought to be directed to the Municipal Court of San Diego Judicial District (respondent court). The real party in interest is Larry Lee Lott (Lott), defendant in a misdemeanor case in respondent court. 1 Prior to trial of that misdemeanor action, Lott made a motion under Penal Code section 1538.5 to suppr...
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*547 Opinion Appellant Terrell Earl Du Bose was charged and convicted by a jury of three counts of robbery (Pen. Code, § 211), and three counts of burglary (Pen. Code, § 459). The convictions resulted from three incidents which occurred on December 27, 1968, January 9, 1969, and January 14, 1969. As to each incident, appellant was charged and convicted of both robbery and burglary, and the ju...
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Opinion This appeal is from a “Judgment of Nonsuit” entered at the conclusion of plaintiff’s presentation of evidence, in a nonjury trial of an action for damages “for failure to abide by the terms of an escrow in disbursing certain funds.” The trial was held July 29-30, 1968. Defendant Khourie’s motion for “nonsuit” was made and granted on the second day. The “Judgment of Non-suit” ...
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Opinion Samuel Z., a minor, appeals from a “judgment” of the juvenile court concluding that he had violated the provisions of Health and Safety Code section 11912 and that he was a person described by Welfare and Institutions Code section 602, and committing him for placement in the Alameda County Boys’ Camp. At the time of the juvenile court proceedings Samuel was 15 years old. He h...
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Opinion Plaintiff’s intestate, Andres Romero, met his death in the early morning hours of June 28, 1966, while driving his Thunderbird automobile along U.S. 101 in the City of Santa Barbara. This suit for breach of contract was instituted when defendant company refused to pay the proceeds of a $10,000 accidental death life insurance policy issued to the beneficiary thereof (T. J. Bettes C...
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Opinion Convicted by jury of forcible rape of a 19-year-old girl (Pen. Code, § 261, subd. 3) and oral copulation of a 14-year-old child (Pen. Code, § 288 a), defendant’s application for probation was denied, and he was sentenced to concurrent terms in state prison. About midnight on January 11, 1969, the defendant knocked on the front door of the 14-year-old copulation victim’s Palm ...
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Opinion This matter is before us on a writ of mandate to compel change of venue from the Superior Court of Kern County. Petitioner, Betty Louise Lansdown, also known as Betty Louise Fouquet, and also known as Betty Louise Baker, is charged with violation of Penal Code section 273a, subdivision (1), wilful child abuse, and of Penal Code, section 271, desertion of a child under 14 years of age. T...
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Opinion This appeal, which was reinstated pursuant to Anders v. California, 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396], is from a judgment entered pursuant to a jury verdict of guilty of assault with a deadly weapon with intent to commit murder, violation of Penal Code section 217. Appellant was also convicted of conspiracy to commit an assault, violation of Penal ...
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Opinion The individual plaintiffs and appellants comprise a partnership doing business as Dallman Supply Company. The defendants and respondents are a partnership doing business as Narom Development Co. Third parties concerned but not joined in the lawsuit are C. R. Adams and Anna G. Adams, his wife. Plaintiffs appeal from a judgment decreeing that a certain indemnity agreement with defen...
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Opinion Plaintiffs as taxpayers of Ventura County sued to enjoin members of the board of supervisors and the county executive from constructing a new county civic center complex, including a courthouse, on a site within the present corporate limits of the Town of San Buenaventura but outside the original boundaries of the town as established in 1866. Defendants demurred on two grounds—“1....
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Opinion By grand jury indictment, Douglas Tumbeau, George Jordan and appellant Williams were accused of murdering Brian Clay. Appellant’s trial was severed from that of the others; he was tried by a jury, found guilty of second degree murder (Pen. Code, §§ 187, 189) and now appeals. He makes five contentions. *641I Appellant first contends his conviction rests solely upon the uncorroborated testim...
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Opinion In case No. 328428, the defendant was charged with possession of heroin for sale (Health & Saf. Code, § 11500.5), and was found guilty of the lesser included offense of possession of heroin (Health & Saf. Code, § 11500.) In case No. A-100857 defendant was charged with violation of Health and Safety Code section 11500.5 and was found guilty as charged. In case No. A-10177...
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Opinion This case comes before this court upon transfer after certification by the superior court following its affirmance on appeal of a judgment by the municipal court convicting defendant of the offense of failure to provide for his minor child. (Pen. Code, § 1471; rule 62, Cal. Rules of Court.) Defendant contested the issue of paternity. The trial court excluded all of his evidence o...
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Opinion Petitioner (applicant) seeks review and annulment of an order of the Workmen’s Compensation Appeals Board (Board) denying his petition for reconsideration of supplemental findings and award assessing a penalty for an unreasonable delay in the payment of permanent disability compensation. The sole issue is whether the penalty should have been computed by applying the penalty to tem...
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Opinion Plaintiff Maria Jacinto de Sousa, now some 82 years old, illiterate resident of Santo Espirito, on the island of Santa Maria, Azores, Republic of Portugal, was found by the trial court to be the lawful wife of Manuel Sousa Freitas at the time of his death. Hence, she was awarded a decree imposing a constructive trust as to her marital interest on *663 the properties o...
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Opinion Margaret Colyear Halvorson, one of the income beneficiaries of a testamentary trust provided for in the will of her deceased husband, Richard Curtis Colyear, appeals from an order of the trial court settling the third account current of the successor trustee and allowing trustee’s fees and attorneys’ fees. Appellant contends that a portion of the trustee’s fees and attorneys’ fees allowed...
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Opinion After a jury trial, defendant was found guilty of two counts of “hit and run” driving in violation of Vehicle Code section 20001.1 The People’s evidence supports the following statement of facts: Afe about 5:20 p.m., April 20, 1969, Bradley and Christine Melvin were riding a motorcycle at a speed of 30 to 35 miles per hour on a highway near Ventura when defendant, driving an automobile in ...
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Opinion Oliver Massengale, Jr., and Charles Arthur Massengale appeal from the judgments following their convictions on separate charges as follows: Count I extortion of Myra Teed (Pen. Code, § 518), count II attempted extortion of Olive Fetherolf (Pen. Code, § 524), and count III obtaining a signature by extortionate means from Olive Fetherolf (Pen. Code, § 522). The defendants pleaded not gu...
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Opinion This case was before us on an earlier appeal (People v. Woodberry (1968) 265 Cal.App.2d 351 [71 Cal.Rptr. 165]) when appellant’s conviction of first degree murder was reversed on the basis of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. A second trial, beginning December 18, 1968, concluded on ...
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Opinion Defendant appeals his conviction of the offense of receiving stolen property, a violation of section 496, subdivision 1 of the Penal Code. On December 16, 1969, in Los Angeles, defendant was driving a Buick automobile that had been stolen in San Diego on December 6, 1969; was stopped by the police and arrested; was charged by an information filed in San Diego County with the offenses of gr...
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*733 Opinion Prosecution for violation of section 11530.5, Health and Safety Code. Judgment of conviction of violation of section 11530, Health and Safety Code, affirmed. Appellant was charged with possession of marijuana for purposes of sale (Health & Saf. Code, § 11530.5). After a trial by jury he was found guilty of possession of marijuana (Health & Saf. Code, § 11530, a ...
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10 Cal. App. 3d 745 (1970) 89 Cal. Rptr. 364 THE PEOPLE, Plaintiff and Respondent, v. JOE LUKE WILLIAMS, Defendant and Appellant. Docket No. 763. Court of Appeals of California, Fifth District. August 21, 1970. *748 COUNSEL Sherman Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, Edsel W. Haws and Frank A. Iwama, Deputy Attorneys Ge...
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Opinion This is a proceeding in certiorari to review an order of respondent court granting the motion of real parties in interest to dismiss *756 petitioner’s will contest. The question presented is whether petitioner is a person “interested” within the meaning of Probate Code section 370, 1 and has standing to maintain the contest. On January 23, 1970, a peti...
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Opinion Defendant was charged in count I with possession of marijuana for sale (Health & Saf. Code, § 11530.5), count II with possession of a restricted dangerous drug for sale (Health & Saf. Code, § 11911), count III, sale of marijuana (Health & Saf. Code, § 11531), count IV, sale of restricted dangerous drugs (Health & Saf. Code, § 11912); a prior conviction for violation of section 115...
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*770 Opinion Plaintiff has appealed from an order dismissing his action, entered after the court sustained defendants’ demurrer to plaintiff’s third amended complaint without leave to amend. 1 The third amended complaint alleges the following facts: In January of 1966 plaintiff orally agreed (1) to find and introduce defendants to a person or persons who would lease ...
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*779Opinion George Gardner, defendant and cross-complainant, has appealed from a judgment awarding a $17,928.12 fund to defendant Roseglen Construction, Inc., (“Roseglen”). We affirm. 7. The Procedural Background The City of Glendale initiated the proceedings in this case with a complaint in interpleader requesting the court to determine the ownership of a fund it received in 1954 from Los Angele...
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Opinion This is an appeal from a judgment of conviction of a violation of section 288 of the Penal Code. The circumstances surrounding the conviction are as follows: On July 31, 1967, the offense charged in the present case was committed upon Kelly Lee Hopper. On September 18, 1967, defendant was arrested and charged with the August 9, 1967, murder of two young girls, the Barili sisters. ...
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Opinion Defendant appeals his convictions of the offenses of selling the dangerous drug “LSD” on two occasions, i.e., violations of Health and Safety Code section 11912. On the first occasion, the subject of the sale, described by defendant as “heavy acid,” consisted of 19 blue tablets, and on the second occasion consisted of 100 blue tablets. A chemist who analyzed two tablets from ...
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*805 Opinion This is an action for personal injuries and property damage allegedly suffered by plaintiff as a result of defendant’s negligence and wrongful conduct in creating and permitting dangerous conditions in an automobile parking structure at 140 South Doheny Drive, Beverly Hills. It was alleged that as a proximate result of such conduct plaintiff was subjected to a crimin...
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*812Opinion Orville Dilon Shubert was charged by information with selling benzedrine (Health & Saf. Code, § 11912), possessing benzedrine (Health & Saf. Code, § 11911), and possessing marijuana (Health & Saf. Code, § 11530). Pursuant to the defendant’s motion (Pen. Code, § 1538.5), the trial court suppressed evidence essential to support counts II and III (possession of benzedrine and marijuana, ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 816 OPINION The information charged defendant in count I with an assault with a deadly weapon with intent to commit murder (Pen. Code, § 217) and count II with a convicted felon's possession of a firearm (Pen. Code, § 12021). He waived jury trial and the court...
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Opinion Appellant was found guilty of burglary, second degree, and sentenced to prison. He does not contend that the evidence is insufficient to sustain his conviction. Thus, there is no occasion to discuss the facts of the burglary. When arraigned in superior court on June 3, 1969, appellant pleaded not guilty. On July 15, appellant and his attorney, the public defender, were present in cour...
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Opinion The only question presented by this appeal is the propriety of an order granting plaintiff’s motion for a new trial for an error of law. Plaintiff filed this action for personal injuries sustained in a collision when her vehicle was rear-ended by a vehicle driven by defendant. After the jury brought in a verdict for defendant, the court granted the motion for a new trial because it had ...
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Opinion Underlying Circumstances The following facts emerge from a lengthy transcript construed favorably to the successful plaintiff with some emphasis on conflicting aspects which are significant to contentions made by defendants and with one or two concessions by plaintiff somewhat adverse to his position. Robert J. Schmorleitz (Schmorleitz) and Edward J. Skelly (Skelly), bot...
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Opinion Plaintiff, respondent and cross-appellant Atlas Vegetable Exchange (hereinafter Atlas) was engaged in farming, produce distribution, and selling, and was a depositor of defendant and appellant United California Bank (formerly California Bank) (hereinafter UCB) during all of the times involved in this litigation. Defendant Mary Matsumura was employed by Atlas as an assistant b...
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Opinion This is an appeal from an order of commitment to the California Rehabilitation Center following a jury determination that appellant was in imminent danger of becoming a narcotics addict. 1 The initial proceeding which brought appellant before the court was a petition filed by the district attorney seeking involuntary commitment of defendant, in accordance with Welfare and Institutio...
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Opinion I. Statement of the Case Defendant was charged by information with two violations of section 11911 of the Health and Safety Code, possession for sale of a restricted *887 dangerous drug. Count I specified amphetamine sulphate (benzedrine). Count II specified barbituric acid (seconal). 1 Following denials of motions made under Penal Code sections 995 and 1538.5, defendant pleaded n...
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Opinion Defendant was charged by information with violation of Health and Safety Code section 11501 (sale of narcotics), and was also charged with a previous conviction of violation of Health and Safety Code section 11500 (possession of narcotics). Defendant pled not guilty and admitted the prior conviction.'After a jury trial, defendant was found guilty as charged. Her motions for a new trial and...
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Opinion Defendants Rodney Westbrook and Johnny Wesley were convicted by a jury of second degree murder (Pen. Code, § 187), assault with a deadly weapon (Pen. Code, § 245) and discharging a firearm at an inhabited dwelling (Pen. Code, § 246). The jury also found that both defendants were each personally armed with a deadly weapon at the time of the commission of the foregoing offenses. 1 The...
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*915 Opinion This petition is one in which the issue is that of search of the person of the driver of a motor vehicle who has been arrested for an offense which justified the arresting officer to bring him before a magistrate. The search of petitioner, Morel, produced a bottle of 77 capsules of Secobarbital, a drug which it is forbidden to possess without a physician’s prescripti...
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Opinion Two appeals are before us. The first is from an order of the trial court denying issuance of a preliminary injunction sought by appellants. 1 The second notice of appeal involves a judgment discharging an *924 alternative writ of mandate and denying issuance of a peremptory writ. The appeal, however, is not from the entire judgment but “from that portion of...
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*934Opinion Herman Kniss (Kniss), H. A. Lavezzi Company, Inc. (Lavezzi), and Cuchna Leasing Company, Inc. (Cuchna) appeal from a judgment' in favor of Leroy D. Pitcher (plaintiff). City of San Diego (City), San Diego Employees Retirement System, and State Compensation Insurance Fund (Fund) appeal from the judgment denying reimbursement to City and Fund of benefits, medical cost and compensation, ...
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Opinion A petition was filed in the Superior Court of San Diego County, sitting as a juvenile court, alleging the minor, William S., Jr., age 16, was a person within the provisions of section 601 of the Welfare and Institutions Code, on the ground he was in danger of leading an idle, dissolute, lewd or immoral life in that for an undetermined period of time he had been using narcotics and dange...
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Opinion Appellant, a minor 18 years of age, was readjudged a ward of the juvenile court pursuant to a supplemental petition asserting that he came within the provisions of section 602 of Welfare and Institutions Code, in that he allegedly violated Vehicle Code section 10851 (taking a vehicle without the owner’s consent). A hearing was had before a duly appointed referee of the juvenile court of...
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Opinion Appellant was convicted by a jury of violation of Penal Code section 459, burglary in the first degree. Three prior felony convictions were charged and admitted. He appeals upon numerous specifications of error. The charge arose out of the burglary of a bar known as the Casa Del Rey during the night of August 14-15, 1967. The charge of first degree burglary was based upon an alleged a...
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Opinion appeal from plaintiff’s judgment on a $60,000 promissory note. Due execution, delivery and nonpayment were admitted; but it is contended that both the note and the transaction in which it was given were void, violating Corporations Code sections 26100 and 26103 prohibiting the sale of any corporate security without the permit of the Corporations Commissioner. The trial court found that th...
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Opinion the entry of judgment upon a jury verdict in this wrongful death action, the trial court entered a second judgment purporting to adjust the rights and obligations of plaintiff, of defendant (a third party tortfeasor), and of the decedent’s employer’s workmen’s compensation insurance carrier (who had intervened in the action as a party plaintiff). Plaintiff and the insurance carrie...
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Opinion Appellant was denied a writ of prohibition against the prosecution of a misdemeanor complaint against him. He appeals. The charge is violation of a curfew. The alleged violation is against Contra Costa County Ordinance section 3108(c), which provides: “Section 3108. *1005 Violations of Chapter. It shall be a misdemeanor punishable by a fine not to exceed five hundred ...
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Opinion Appellant, contestant in a special proceeding by responent to determine the standing of “La Opinion” as a newspaper of general circulation, appeals from a judgment in favor of the petitioner. We affirm the judgment. Facts “La Opinion” is a daily newspaper which has been printed and published in Los Angeles by respondent since 1926. It carries news of a general *1015character, utilizing ...
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Opinion —On October27, 1967, James Hinds and H. Douglas Gamble entered into a written agreement under which Hinds was to purchase from Gamble 40,000 shares of the stock of Little Revenge, Inc., for $79,000. This constituted all of the stock of Little Revenge, Inc. The only asset of that corporation was a 5 3-foot sailboat named, logically enough, “Little Revenge.” What Hinds actually purc...
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Opinion Petitioner seeks review of a decision of the Workmen’s Compensation Appeals Board denying his petition to reopen a claim for a cumulative industrial heart injury from 1938 to May 24, 1964, in his employment as a deputy sheriff for the County of Los Angeles. He was originally denied compensation in this case on September 3, 1965, when the referee found that he had sustained no injury ari...
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Opinion —William LloydBlagg and Louis Jack Burt (defendants) in a retrial by jury, after a reversal, were convicted of sodomy (Pen. Code, § 286) upon George William H. Hotchkiss (victim) and were sentenced to state prison. They appeal from the judgments. Defendant Burt appeals from the order denying motion for new trial. Defendants, victim and four inmates were confined in a felony tank of th...
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Opinion Defendant was charged by information with one count of burglary. (Pen. Code, § 459.) She pleaded not guilty. Jury trial was waived. Defendant stipulated that the court might consider the transcript of the preliminary hearing plus such additional evidence as the parties chose to present. Defendant was found guilty of second degree burglary. Probation was denied. Defendant was sentenced t...
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Opinion John F. Hutsel appeals from a declaratory judgment entered against him and in favor of William H. Cousins, Joseph L. Leakes and Mid-Century Insurance Company (Mid-Century). There is no dispute as to the facts. Hutsel was Cousins’ insurance agent. The previous year he had placed Cousins’ automobile liability insurance ($10,000/$20,000 bodily injury and $5,000 property damage) with Tran...
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*1075 Opinion Appellants Donald L. and Terry Lee Hess, husband and wife, were jointly charged and convicted by jury of five felonies; grand theft as defined in Penal Code section 487, subdivision 1, two counts of forgery (Pen. Code, § 470), and two counts of grand theft as defined in Penal Code section 487, subdivision 3 (horse theft). Mrs. Hess was also charged with four prior forgery convic...
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Opinion Plaintiff, as administrator of the estate of Bessie Muller, deceased, appeals from a judgment in favor of defendants in cross-actions to quiet title in which it was adjudicated that plaintiff had no right, title, or interest in the real property which was the subject of said actions; that defendant Lucinda Kelley (hereinafter referred to as “Kelley”) held *1087 title ...
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Opinion American Institute of Aeronautics & Astronautics, Inc. (hereinafter referred to as the insured), protected itself from any loss caused by the dishonesty of an employee by contracts with Liberty Mutual Insurance Company (for the period March 11, 1963, to March 11, 1966) and General Insurance Company of America (for the period March 11, 1966, to January 1, 1968) whereby the insurers...
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Opinion This case involves an extremely close question of first impression in California. Andy’s Lumberland, Inc. (hereinafter the retailer), was being supplied with fiberglass panels for sale to its customers by Lasco Industries, Inc. (hereinafter the wholesaler), on a consignment basis in 1965. The retailer sold some of the panels without paying the wholesaler whereupon the wholesaler cease...
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I respectfully dissent. In my opinion, the film was seized by virtue of an invalid warrant. The superior court expressly found that the magistrate issued the search (seizure) warrant relying solely upon the affidavit of Officer Serio. “It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention.” (Aguilar v....
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Opinion Defendant was charged by information with violation of Penal Code section 12420 (possession of a shell, cartridge, or bomb capable of emitting tear gas). Defendant’s motion to dismiss pursuant to Penal Code section 995 was denied, and he pled not guilty. Defendant personally and all counsel waived a jury trial, and the case was submitted on the transcript of the preliminary hearing. The...
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Opinion Defendant was originally charged by information with 13 counts of felony violations. In the interest of justice, all but two counts were dismissed. 1 After appropriate waiver by defendant and submission of the cause upon the grand jury transcript, in addition to the taking of other evidence, the court, sitting without a jury, found defendant guilty of count VII (grand theft, Pen. Code...
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Opinion Patricia Walters the natural mother of a minor has appealed from an order granting the petitioners Youngs’ petition to declare the minor free from parental custody and control. She contends that the evidence is insufficient to establish either of the grounds prescribed in subdivisions (a) and (b) of Civil Code section 2321 for the making of such an order. The petitioners assert that the a...
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9 Cal. App. 3d 58 (1970) 87 Cal. Rptr. 799 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DOUGLAS LYONS, Defendant and Appellant. Docket No. 7779. Court of Appeals of California, Second District, Division Four. June 24, 1970. *59 COUNSEL Richard H. Levin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorne...
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*66 Opinion Defendants appeal from a judgment granting a peremptory writ of mandate compelling the Board of Education of Folsom-Cordova Joint Unified School District (hereinafter “District”) to reinstate petitioner in his job of maintenance mechanic. Questions Presented 1. The District’s disciplinary proceedings rules do not comply with section 13583 Education Code. 2. Petitioner was ...
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9 Cal.App.3d 74 (1970) 87 Cal. Rptr. 811 THE PEOPLE, Plaintiff and Respondent, v. PAUL EDWARD SHEARER, JR., Defendant and Appellant. Docket No. 5524. Court of Appeals of California, Third District. June 24, 1970. *75 COUNSEL James E. Pardee for Defendant and Appellant. Thomas C. Lynch, Attorney General, Jack Winkler and Russell Moore, Jr., Deputy Attorneys General, for Plaintiff and Respondent. O...
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9 Cal.App.3d 80 (1970) 88 Cal. Rptr. 4 THE PEOPLE, Plaintiff and Respondent, v. LON ANDERSON, Defendant and Appellant. Docket No. 3956. Court of Appeals of California, Fourth District, Division One. June 24, 1970. *81 COUNSEL Frederick L. Hetter for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Robert W. Carney, Deputy Attorney Gener...
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Opinion Edwards-Town, Inc., appeals from a judgment predicated upon an agreement to which it was not a party relating to the sale and development of two parcels of real property in Kern County. The agreement was between respondents Kenneth A. Dimin and Peter S. Manuele, as sellers, and Paulson Incorporated, as buyer. Dimin and Manuele have also appealed upon the ground of inadequate damages. Th...
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*99 Opinion By jury verdict, appellant was convicted of receiving stolen property, to wit, airplane parts (Pen. Code, § 496), and was acquitted of airplane theft (Pen. Code, § 499d). He was sentenced to prison and placed on probation for three years, provided he serve one year in the custody of the Kern County sheriff. Appellant does not challenge the sufficiency of the evidence to sustain th...
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9 Cal.App.3d 106 (1970) 87 Cal. Rptr. 767 THE PEOPLE, Plaintiff and Respondent, v. GUY YOUNG III, Defendant and Appellant. Docket No. 7898. Court of Appeals of California, First District, Division One. June 25, 1970. *108 COUNSEL Nielsen, Townsend & Hales and Phillip M. Steinbock for Defendant and Appellant. Thomas C. Lynch, Attorney General, Robert R. Granucci and Michael Buzzell, Deputy Att...
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Opinion The appeals are from judgments rendered in consolidated actions of the superior court entitled Marsh v. Rise, number 871871 and Edelstein v. Rise, number 920254. Marsh v. Rise is an action to quiet title to some 200 acres of land situated in Los Angeles County, and to cancel a deed from David Salot, Jr., to Melvin M. Rise. The action was brought by Theodore L. Marsh individually, and ...
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*166 Opinion Statement of the Case Plaintiff, on November 14, 1967, filed his complaint against the defendants Richard Burton, Elizabeth Taylor Burton, Franco Zeffirelli, and Does I through X, wherein he sought damages for (1) breach of contract, (2) unjust enrichment, (3) breach of confidential relationship and (4) services rendered and benefits conferred. Answer to the...
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*190 Opinion Proceedings Below Rex Zinn, as the administrator of the estate of Charles Kano (plaintiff), seeks to enforce a judgment obtained in action #38158 against Fred R. Bright Company (Company), which was affirmed by this court in April 1969 (Zinn v. Fred R. Bright Co., 271 Cal.App.2d 597 [76 Cal.Rptr. 663]). The present action was submitted ...
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Opinion This is an appeal from a decree determining heirship wherein the trial court ruled that a house, two unimproved lots, and a savings account owned by the decedent, Beth A. White, at the time of her *197demise passed to the respondent pursuant to the decedent’s last will and testament. Beth A. White died testate on October 2, 1963, leaving certain real and personal property located in San B...
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Opinion The People seek a writ of mandate commanding respondent court to vacate an order made pursuant to section 1538.5 of the Penal Code suppressing certain evidence seized from the home of real party in interest (defendant). An information has been filed charging defendant with three counts of receiving stolen property, count I with receiving a Magnavox color television set belonging to Mr...
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9 Cal.App.3d 212 (1970) 88 Cal. Rptr. 64 THE PEOPLE, Plaintiff and Respondent, v. PAULETTE ANNE CALPITO, Defendant and Appellant. Docket No. 3691. Court of Appeals of California, Fourth District, Division Two. May 28, 1970. *216 COUNSEL Doty, Quinlan & Kershaw, William A. Quinlan and Edward L. Fanucchi for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant...
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Opinion Eichler Homes, Inc. (Eichler), was engaged in the home building business. Its homes generally were built over concrete slabs in which Steven Anderson and Ellis Rother (Anderson and Rother), under contract with Eichler, installed copper tubing which formed the basis of radiant heating systems. During the Korean hostilities copper tubing became difficult to obtain so Anderson and Ro...
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Opinion Petitioner seeks mandamus to compel the respondent Superior Court of Los Angeles County to vacate its order of February 20, 1970, by which said court, upon a motion for reconsideration, reaffirmed its earlier order granting a motion for change of venue, and to require said court to deny the motion for change of venue to Orange County. *238 The record shows that a first amended compl...
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Opinion The defendant and National Automobile and Casualty Company, the surety on his bail bond, have appealed from an order denying the bonding company’s motion to set aside the forfeiture of two undertakings posted by the bonding company. 1 Preliminarily, the appellants contend, for the first time on appeal, that the first of two bonds posted by the company was exonerated i...
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9 Cal. App. 3d 255 (1970) 88 Cal. Rptr. 97 In re STEVEN C., a Person Coming Under the Juvenile Court Law. CARROLL B. PEBBLES, as Supervising Probation Officer, etc., Plaintiff and Respondent, v. STEVEN C., Defendant and Appellant. Docket No. 26819. Court of Appeals of California, First District, Division One. June 29, 1970. *259 COUNSEL Brewster Q. Morgan, Fred A. Culver and Robert H. Betzenderfe...
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9 Cal. App. 3d 270 (1970) 88 Cal. Rptr. 122 PACIFIC COAST ENGINEERING COMPANY, Plaintiff and Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants and Respondents. Docket No. 26032. Court of Appeals of California, First District, Division Two. June 29, 1970. *272 COUNSEL Farella, Braun & Martel and Jerome I. Braun for Plaintiff and Appellant. Thornton & Taylor and Jerome F. Do...
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9 Cal.App.3d 288 (1970) 88 Cal. Rptr. 623 EUGENE F. BABBITT, Plaintiff and Respondent, v. WINSTON O. WILSON et al., Defendants and Appellants. Docket No. 12446. Court of Appeals of California, Third District. June 29, 1970. *289 COUNSEL James P. Jackson, David W. McMurtry and Joseph E. Coomes, Jr., for Defendants and Appellants. John B. Lewis and Edward S. Muktarian for Plaintiff and Respondent. ...
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9 Cal. App. 3d 293 (1970) 88 Cal. Rptr. 86 THOMAS C. LYNCH, as Attorney General, etc., Plaintiff and Appellant, v. JOHN M. REDFIELD FOUNDATION et al., Defendants and Respondents. Docket No. 35319. Court of Appeals of California, Second District, Division Three. June 30, 1970. *295 COUNSEL Thomas C. Lynch, Attorney General, and Carl Boronkay, Deputy Attorney General, for Plaintiff and Appellant. M...
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9 Cal.App.3d 304 (1970) 88 Cal. Rptr. 221 TILDEN W. JOHNSON, Plaintiff and Appellant, v. FORD MOTOR COMPANY et al., Defendants and Respondents. Docket No. 34477. Court of Appeals of California, Second District, Division Five. June 30, 1970. *305 COUNSEL Tilden W. Johnson, in pro. per., for Plaintiff and Appellant. Haight, Lyon, Smith & Nye and Charles B. Smith for Defendants and Respondents. *306...
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Opinion Decedent, Kitty M. Matthiessen, died on December 27, 1967, leaving neither spouse, issue, nor parents. Two nieces of decedent, Rosamonde D. Lytle and Jane D. Daley, were appointed joint administratrices of the estate, it being alleged that decedent died intestate. On November 22, 1968, pursuant to petition of said joint administratrices, respondent court made its order settling th...
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Opinion In proceeding No. P 504613 of the Superior Court of the State of California for the County of Los Angeles, Bank of America Na *326 tional Trust and Savings Association (Bank) and Ivan Townsend Smith (Ivan) have been and are co-conservators of the estate of Eugenia Clair Smith (Eugenia), an elderly woman, and Ivan has been and is conservator of her person. In that proceeding, a grandso...
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*332 Opinion Defendant appeals from a judgment of conviction on a three count information charging him with robbery committed on February 14, 1968, (count I), robbery committed on January 13, 1968, (count II) and possession of marijuana at the time of his arrest on March 27, 1968, (count III). The public defender was appointed at the time of the arraignment on May 8, 1968. The public defend...
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Opinion Petitioner herein is the plaintiff in an action for damages commenced in 1966. Harold S. Farnell, aka Jack Farnell, is named as one of several defendants in that action. Said defendant died during the pendency of this action. His wife, Grace W. Farnell was the executrix under his will, and she is named herein as the real party in interest. For convenience the petitioner will hereafter be r...
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Opinion Petitioners seek a writ of mandate to compel the Yolo County Superior Court to change its ruling in regard to search warrants used in obtaining evidence against petitioners in proceedings under indictment 3791 of that court. Questions Presented 1. Three of the search warrants are invalid for lack of supporting affidavits in writing. 2. All four search warrants were served at night...
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9 Cal. App. 3d 365 (1970) 88 Cal. Rptr. 12 CITY OF SAN JOAQUIN, Plaintiff and Appellant, v. STATE BOARD OF EQUALIZATION, Defendant and Appellant. Docket No. 1020. Court of Appeals of California, Fifth District. July 1, 1970. *367 COUNSEL Wilbur K. Kessler for Plaintiff and Appellant. Thomas C. Lynch, Attorney General, Ernest P. Goodman, Assistant Attorney General, and Edward P. Hollingshead, Depu...
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Opinion Pursuant to section 409.4 of the California Code of Civil Procedure, plaintiff petitions for a writ of mandate to command the respondent court to vacate its order expunging plaintiff’s lis pendens. James Goodman and Joseph Goodman, defendants, are the real parties in interest. Plaintiff sued for specific performance of an alleged contract to convey real property. 1 ...
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Opinion Petitioner, Larry B. Parker, asks for a writ of mandamus directing the trial court to order the expungement of a lis pendens. (Code Civ. Proc., §§ 409.1, subd. (a), 409.4) Charles Dwight sued Sally M. Dwight for divorce. The complaint set forth six causes of action, including breach of a property settlement agreement, fraud and quiet title. One of the parcels of property in c...
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Opinion Defendant Edward Keefe appeals from a judgment in favor of plaintiff A. Kimmel. Among other things, and as pertinent here, the complaint alleged: that one E. T. Komsthoeft during the period August through December 1965 under conditional sales contracts purchased from Kimmel certain furniture of the reasonable value of $10,000, on which a balance of $9,309.52 remained unpaid; that Koms...
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Opinion These are cross-appeals by the State Controller and by a taxpayer, Augusta Morse, from a judgment redetermining the amount of tax due under the Inheritance Tax Law from the various beneficiaries of the will of Barney Morse, who died on March 31, 1968. These appeals involve questions of interpretations of Revenue and Taxation Code, sections 13692 anfi 13694 1 as applied to an impli...
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Opinion Judgment roll appeal by plaintiff from judgment in favor of defendants. Questions Presented 1. The undisclosed agent’s lack of license, said license required by Business and Professions Code, section 7031, bars recovery by plaintiff, an admitted undisclosed principal. 2. Plaintiff may not recover for materials. Record In October 1966, Eugene Niccum, doing ...
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Opinion By their amended complaint, and a supplement thereto, based on a series of common counts (three causes of action), plaintiffs sought recovery of installment payments made by them on a promissory note to a banking institution which they allege should have been made by defendant as co-signer. In a court trial they were given judgment for $6,336 plus interest ($683.76) and defendant was or...
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9 Cal.App.3d 448 (1970) 88 Cal. Rptr. 605 LOS ANGELES FREE PRESS, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Docket No. 35326. Court of Appeals of California, Second District, Division Two. July 8, 1970. *450 COUNSEL Mitchell S. Shapiro and Richard E. Posell for Plaintiff and Appellant. Roger Arnebergh, City Attorney, George J. Franscell, Assistant C...
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Opinion Petitioners, public entities, seek a writ of mandate and/or prohibition to compel the respondent superior court to vacate its orders, or to restrain the enforcement thereof, granting relief to real party in interest under Government Code section 946.6. The question presented herein is one of first impression and may be stated as follows: Where a minor claims to have received ...
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9 Cal.App.3d 470 (1970) 88 Cal. Rptr. 281 JOSEPHINE VARGAS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MILDRED VARGAS, Real Party in Interest. Docket No. 36046. Court of Appeals of California, Second District, Division Five. July 8, 1970. *472 COUNSEL Ervin M. Roeder and Barry T. Harlan for Petitioner. No appearance for Respondent. E. Michael Kruse for Real Party in Inte...
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Opinion In proceedings instituted by petition of the executor of the above captioned estate advice of the probate court was sought to determine heirship as between the Socialist Labor Party of California, an unincorporated association, and the state itself. The former, under decedent’s will in probate, is the sole primary legatee, but the State of California becomes the sole beneficiary if the Soc...
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Opinion Appellant, Donald B. Sayre, appeals from a judgment of the Superior Court of Fresno County, denying his application for a writ of mandate to compel respondent, the Board of Trustees of the Coalinga College District, to reclassify appellant on the salary schedule as of the 1964-1965 school year, and to pay him the additional compensation he claims he would have received if he had been pr...
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9 Cal.App.3d 493 (1970) 88 Cal. Rptr. 154 NELSON RODRIGUEZ, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 28359. Court of Appeals of California, First District, Division Four. July 9, 1970. *494 COUNSEL R. Jay Engel for Petitioner. No appearance for Respondent. *495 Thomas C. Lynch, Attorney General, Albert W....
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Opinion Defendant was charged with and convicted of possession of heroin. (Health & Saf. Code, § 11500.) After his motion for a new trial was denied, criminal proceedings were suspended and a petition for commitment under the provisions of section 3051 of the Welfare and Institutions Code was filed. Pursuant to section 1237 of the Penal Code, as it then read, defendant properly appealed f...
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Opinion This is an appeal from a declaratory judgment determining the obligations of five insurance companies for the payment *514 of personal injury judgments against Dean Wiemken. Another phase of the appeal involves an award of damages for breach of an insurer’s obligation to defend. In December 1965 Wiemken was the operator of a Christmas tree lot in Fremont, Alameda...
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Opinion Defendant herein appeals from a judgment of the superior court entered on a jury verdict finding him guilty of the crime of murder of the first degree, robbery of the first degree, and two prior felony *536 convictions, namely, the second and third prior convictions charged in the information. Defendant, in support of his appeal, contends, first, that the evidenc...
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Opinion Can a parent annul a minor child’s marriage after the child’s death because the child married without parental consent? Mae Frances Greene, mother of Robert, a deceased minor, filed suit against Robert’s wife Delores to annul her son’s marriage. Her complaint averred that Robert was born 1 May 1949, married Delores without plaintiff’s consent on 20 August 1968, and was killed on activ...
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Opinion Defendant was charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. He moved under section 1538.5 to suppress the evidence but withdrew that motion on the stipulation that the issue could be presented at the trial. Trial by jury was waived, defendant stipulated that a commissioner could sit as judge pro tempore, and following the trial defenda...
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Opinion This is an appeal from an order directing Security Pacific National Bank,1 as executor of the estate of Elma C. Korthe, to pay $20,000 in attorney’s fees out of the assets of the entire estate to Eric A. Rose, attorney of record for five residuary legatees, based upon a finding that this was the reasonable value of services rendered in preservation of a common fund. *574 Facts On July 2,...
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9 Cal. App. 3d 579 (1970) 89 Cal. Rptr. 534 KAREN SNYDER, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JULIAN SNYDER, JR., Real Party in Interest. Docket No. 36007. Court of Appeals of California, Second District, Division Five. June 10, 1970. *580 COUNSEL Martin S. Stolzoff and Franklin M. Desser for Petitioner. No appearance for Respondent. Brill, Hunt, DeBuys & Burb...
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Opinion Plaintiffs bring this class action on behalf of themselves and other migratory workers customarily employed on farms and ranches in the Sacramento valley. They sue the owner-operators of three separate ranches. In essence the amended complaint alleges that defendants, as a common practice, knowingly employ Mexican nationals who have entered the United States in violation of the fe...
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Opinion After hearing an order to show cause, petitioner was adjudicated in constructive contempt of court for disobeying an alleged oral order of the superior court. He was fined $500 and sentenced to serve five days in the county jail. The fine was suspended, and because petitioner is a farmer he was ordered to serve the sentence in the county jail only during nighttime hours. Petitioner brin...
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Opinion Petitioners seek annulment of decision, after reconsideration by the Workmen’s Compensation Appeals Board of its decision, holding that respondents Juan Gutierrez, Johnny Eugene Moore, Soledad *609 Vidaurri and Charlotte Magsby were not barred from receiving workmen’s compensation by reason of the going and coming rule. Juan Gutierrez, Johnny Eugene Moore, Frank ...
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9 Cal. App. 3d 613 (1970) 88 Cal. Rptr. 651 In re LEONARD DOUGLAS COLAR, a Minor, on Habeas Corpus. Docket No. 8922. Court of Appeals of California, First District, Division Four. July 16, 1970. *614 COUNSEL Paul Ligda, Public Defender, and Jon P. Siegel, Deputy Public Defender, for Petitioner. Thomas C. Lynch, Attorney General, Derald E. Granberg and Gloria F. DeHart, Deputy Attorneys General, f...
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Opinion The parties were formerly husband and wife, the latter having been granted a final judgment of divorce in April of 1960. Thereunder the provisions of the interlocutory decree relating to the support of their three minor children were made binding—payment by the husband (hereinafter referred to as “Melvin”) to the wife (hereinafter referred to as “Charlotte”) of the sum of $80 per month ...
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9 Cal. App. 3d 627 (1970) 88 Cal. Rptr. 597 THE PEOPLE, Plaintiff and Respondent, v. ROGER JOHN PETERSON, Defendant and Appellant. Docket No. 16961. Court of Appeals of California, Second District, Division One. July 16, 1970. *629 COUNSEL Richard E. Erwin, Public Defender, Donald G. Griffin and John D. Russel, Deputy Public Defenders, for Defendant and Appellant. Thomas C. Lynch, Attorney Genera...
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Opinion This case requires definition of the scope of court review of proceedings of the Adult Authority resulting in revocation of parole. Donald E. Mozingo, the real party in interest, pleaded guilty to second *639 degree robbery, and entered prison in 1965 under that conviction. He was paroled in 1968. Nine months later he was convicted of drunk driving, and his parol...
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Opinion Convicted on two counts of possession of narcotics for sale (Health & Saf. Code, § 11500.5) and one count of possession of narcotics (Health & Saf. Code, § 11500) Samuel B. Beasley commenced his prison term January 12, 1965. Paroled May 21, 1968, he was arrested by Riverside police May 19, 1969 on a charge of attempted murder. Report of parole agent and police reports show that tw...
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Opinion Convicted on two counts of sale of marijuana (Health & Saf. Code, § 11531) and one count of taking an automobile without consent of the owner (Veh. Code, § 10851), Thomas Earl Bush commenced serving concurrent prison terms December 24, 1963. He was paroled December 24, 1968. He was arrested by Los Angeles police July 9, 1969 and charged with possession of a concealable firearm (Pe...
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Opinion Clyde and Mary Dalton (herein called sellers) appeal from a judgment, after nonjury trial, awarding Jim and Carol Jensen (herein called buyers) damages in the amount which buyers had deposited in escrow under a contract to purchase real estate. The judgment also denied relief to sellers on their cross-complaint for damages due to buyers’ breach of the same contract. The contract calle...
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*662 Opinion This is an appeal from an order (minute order) made June 10, 1968, denying the motion of defendants Covina Publishing, Inc., a corporation, (hereinafter, Covina), and R.G.S. Corporation, a corporation (hereinafter, R.G.S.) to discharge a writ of attachment for $150,000, secured by plaintiff, Western Board of Adjusters, Inc., a corporation (hereinafter, plaintiff) on May 17, 1968,...
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I concur in part and dissent in part with respect to the scholarly lead opinion of Presiding Justice Kaus, and I disagree with part of the views expressed by my colleague, Justice Stephens. I do not reach his subject and treatment in another part. I concur with the lead opinion’s handling and disposition of count VIII (the misdemeanor charge), as does Justice Stephens. I concur with the lead opini...
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Opinion * Petitioner seeks a writ of mandate, prohibition or other appropriate relief from an order of respondent superior court requiring petitioner to give further answers to certain interrogatories. A brief statement of the facts is essential to an understanding of the discovery issues involved in this proceeding. On or about March 22, 1966, petitioner, as plaintiff, filed ...
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Opinion Appellants Turner F. Roberts (Turner) and Lila Helen Roberts Walsh (Lila Helen) grandchildren of Lila Bibb Roberts, deceased, appeal from an order predicated upon a petition of Pacific-Security Bank, executor, to determine heirship. There is no dispute about the facts. On March 20, 1953, Lila Bibb Roberts deceased (testatrix) executed her last will. In pertinent part the will provided: *75...
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Opinion In 3 Civil 12295, plaintiff Elizabeth Freidberg (hereinafter referred to as Elizabeth) has filed this appeal following a summary judgment entered in behalf of her former husband, the defendant, Edward Freidberg (hereinafter referred to as Edward). On May 15, 1969, pursuant to stipulation of counsel, the foregoing appeal was ordered to be consolidated with 3 Civil 12301, to be...
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9 Cal.App.3d 765 (1970) 88 Cal. Rptr. 628 VANGUARD INSURANCE COMPANY, Plaintiff and Appellant, v. HARTFORD INSURANCE COMPANY, Defendant and Respondent. Docket No. 35343. Court of Appeals of California, Second District, Division Three. July 21, 1970. *766 COUNSEL Staitman & Snyder and Jack M. Staitman for Plaintiff and Appellant. Shield & Smith and John B. Loomis for Defendant and Respondent. OPIN...
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Opinion * —■ George L. Hill, a 55-year-old electrician, ruptured his left eye on the end of a pipe bender which he was using in the course of his employment on November 21, 1967. Enucleation of the eye was necessary and an artificial eye was implanted. The Workmen’s Compensation Appeals Board issued an award against petitioner, the employer’s compensation insurer, which included co...
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Opinion This is an action on an insurance policy issued by Underwriters of Lloyds (defendant, sometimes referred to as Underwriters) to recover attorneys’ fees and costs expended by plaintiff (City) in defense of an action for false arrest and false imprisonment brought against the City and certain of its police officers. Defendant appeals from a judgment for the City. The following ...
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Opinion The question to be resolved on this appeal is the constitutionality of subdivision (g)' of section 232 of the Civil Code. That subdivision was added to section 232 in 1967. The pertinent portions of the section are as follows: “An action may be brought for the purpose of having any person under the age of 21 years declared free from the custody and control of either or both of his parents...
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Opinion This appeal raises the question of the amount which can be recovered under an appeal bond. In the underlying damage action, on March 11, 1964, Merritt recovered *824a judgment against J. A. Stafford Company for $434,441.68 for personal injuries suffered in a truck accident; and Merritt’s employer, Sterling Transit Co., Inc., recovered $21,255.93 against Stafford for property damage. Staff...
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*829 Opinion After a court trial defendant was convicted of possession of a dangerous drug, secobarbitual sodium, also known as seconal, in violation of Health and Safety Code section 11910. The court suspended proceedings and granted probation. Defendant is appealing from this order which is deemed, for the purpose of appeal, a judgment. The issues on appeal relate exclusively to the manne...
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Opinion Preliminary Statement The parties to this appeal are (1) appellants Mack Trucks, Inc., and Mack Financial Corporation (hereinafter referred to as Mack) and Zurich Insurance Company (hereinafter sometimes referred to as appellant Zurich), and (2) respondents Dart Transportation Company, Dart Transportation Service, and Dart Equipment Corporation (hereinafter sometimes refe...
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*854 Opinion * — The facts in this case which gave rise to consolidated petitions are not in dispute. On November 6, 1969, at approximately 11:30 p.m., on Torrance Boulevard, near its intersection with Crenshaw Boulevard, Officer Sanders observed a truck towing a trailer upon which was tied a part of a red Corvette automobile body. The front fenders of the Corvette appeared to have been “sa...
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9 Cal. App. 3d 860 (1970) 88 Cal. Rptr. 538 JOHN R. MILLER, Plaintiff and Appellant, v. ROBERT L. HAMM, as Clerk, etc., Defendant and Respondent. Docket No. 36899. Court of Appeals of California, Second District, Division Five. July 22, 1970. *863 COUNSEL Gilbert F. Nelson, under appointment by the Court of Appeal, for Plaintiff and Appellant. Thomas C. Lynch, Attorney General, William E. James, ...
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Opinion Appellants Shasta Joint Junior College District Board of Trustees, Gilbert Collyer, Loren D. Phillips and William Meardy appeal from a superior court judgment ordering appellants to set aside the expulsion of respondent Richard Perlman from Shasta Joint Junior College and to strike from his school record all reference to the expulsion and to a prior suspension. 1 , ...
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9 Cal. App. 3d 885 (1970) 88 Cal. Rptr. 625 THE PEOPLE, Plaintiff and Respondent, v. EDDIE CASTILLO SANDOVAL, Defendant and Appellant. Docket No. 5614. Court of Appeals of California, Third District. July 22, 1970. *887 COUNSEL Eddie Castillo Sandoval, in pro. per., and William Gregory, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, Edsel...
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Opinion By this appeal from an order denying a writ of review petitioners seek to vacate the action of the respondent City Council of Stockton reversing a decision by the Stockton City Planning Commission to issue a special use permit to petitioners for the establishment of a mobile home park. The petitioners own Lots 3 and 4, Block B, El Ricado, located within the City of Stockton, ...
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Opinion In a declaratory relief action, plaintiff insurance company sought a determination of whether defendants, parents of a minor, were *900 entitled to arbitrate the right to recover for his death, in an automobile accident, under their uninsured motorist policy. The Son had been hit by an uninsured motorist in the State of Louisiana, where he was stationed as a member of the United State...
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*906 Opinion Petitioner, conservator of the person and estate of Irene Stevenson, by his petition for a writ of prohibition, seeks an order prohibiting the respondent superior court, sitting as a probate court, from adjudicating the validity of a disputed debt allegedly incurred by the conservatee prior to the conservatorship. On September 26, 1969, Medical Center Convalesce...
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9 Cal.App.3d 909 (1970) 88 Cal. Rptr. 581 EUGENIA IGNA, Plaintiff and Appellant, v. CITY OF BALDWIN PARK et al., Defendants and Respondents. Docket No. 35539. Court of Appeals of California, Second District, Division One. July 23, 1970. *911 COUNSEL David C. Marcus for Plaintiff and Appellant. Robert Flandrick, City Attorney, and Martin & Flandrick for Defendants and Respondents. OPINION LILLIE, ...
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Opinion .—Harriette L. Peters died on October 15, 1968, aged 88, leaving a witnessed will executed some two months earlier (August 27, 1968). Thereunder appellant Peltzer, who drafted the instrument, was left one-fourth of her estate, the remainder went to her three grandchildren. It was denied probate following a nonjury trial of the contest brought by the grandchildren, also beneficiaries (but t...
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Opinion On August 2, 1968, petitions were filed in the juvenile court alleging that appellants Gary Richard Stark and Daniel Lawrence Henley, both minors, came within the provisions of Welfare and Institutions Code section 602. 1 The petition against Stark alleged violations of Penal Code section 245 (assault by means of force likely to produce great bodily injury) (pars. I and...
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*937 Opinion On June 10, 1969, an interlocutory judgment was entered, granting a divorce to plaintiff on her complaint and to defendant on his cross-complaint. The judgment further declared certain property to be separate and other community, and ordered defendant to pay alimony, child support and attorneys’ fees. Defendant appeals from the judgment, except insofar as it awards a divorce to b...
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Opinion JGrace M. Harris died testate on or about November 19, 1967, a resident of Los Angeles County. The inventory of the estate showed probate assets of $78,195.21. The inheritance tax appraiser, appointed by the court, filed his Report of Inheritance Tax Appraiser with the court on May 20, 1969. The report disclosed, in addition to the appraised inventory value, two supplemental contr...
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Opinion Petitioner, Beckers, by information was charged with possession of dangerous drugs; moved under Penal Code section 995 to dismiss the information; and by this proceeding under Penal Code section 999a seeks reversal of the order denying his motion. The issue is whether the lawfulness of the entry of police officers into a dwelling resulting in petitioner’s search and arrest wa...
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Opinion Defendants, Leroy B. Thomas and Jean G. Thomas, appeal from a judgment awarding plaintiff-respondent, L. E. Weisenburg, Jr., damages for breach of contract. *963 Defendants, owners of 310 acres on Bethel Island, contracted with respondent for the development of a marina on the property. A written agreement entitled “Land Development Agreement” was signed by Leroy B. ...
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Opinion This is an appeal from a judgment permitting plaintiff to dismiss defendant and to terminate his employment as a permanent teacher in the Palo Verde Unified School District where he taught on a junior college level. The action was brought pursuant to sections 13412 and 13403 of the Education Code charging evident unfitness for service and immoral conduct. Under well established rules ...
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Opinion Defendant appeals from a judgment of conviction for violation of Health and Safety Code section 11557 (maintaining a place where narcotics are being used) following a plea of guilty. Defendant has not obtained a certificate of probable cause as provided for by Penal Code section 1237.5 providing that such a certificate is required upon an appeal from a judgment or conviction after a plea ...
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9 Cal. App. 3d 996 (1970) 88 Cal. Rptr. 679 HARRY JULIAN FINK, Plaintiff and Appellant, v. GOODSON-TODMAN ENTERPRISES, LTD., et al., Defendants and Respondents. Docket No. 33731. Court of Appeals of California, Second District, Division Five. July 27, 1970. *998 COUNSEL Johnson, Robertson, O'Sullivan & Ladenberger and Don A. Ladenberger for Plaintiff and Appellant. Trippet, Yoakum & Papia...
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Opinion The facts giving rise to this appeal are set forth below. At all times relevant to the issues, appellant was a permanent certified employee of the San Marino Unified School District (hereinafter referred to as “District”), serving as a classroom teacher. On at least 12 days in the calendar year 1968 appellant was absent from his teaching duties for the District. On those...
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*1027 Opinion For some time prior to November 1, 1952, and ever since, the plaintiffs, Louis and Frances Reinking, have been the fee owners of a 9.48-acre tract of land situated in the City of Costa Mesa, County of Orange. On November 1, 1952, they leased the property to the defendant, County of Orange, for a period of three years for use as a public refuse dump at an annual rental of $210. ...
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Opinion Caroline Kropp appeals from an adverse judgment in two actions she instituted to recover the proceeds of two trust accounts in Sterling Savings and Loan Association, located in Orange County. The cases were consolidated by order of the Superior Court of Orange County, and identical findings of fact, conclusions of law and judgments were filed and entered in both actions. Separate ...
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Opinion Defendant was convicted of two counts, I and III, of battery on a police officer in violation of section 242 and 243 of the Penal Code. He was also convicted of a battery committed on his wife, count IV. Counts I and III were merged pursuant to section 654 of the Penal Code, and with regard to these counts defendant was sentenced to state prison for the term prescribed by law. As to cou...
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Opinion Each of the four defendants was charged with violating section 602.9, Penal Code. The elements of such crime are: 1) coming upon school grounds or adjacent areas “without any lawful business,” 2) interfering with or disrupting school activities, and 3) remaining after being asked to leave. The section defines “lawful business” as a “reason for being present upon school property which is no...
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Opinion JThese cases all involved the prosecution of bottomless dancing in a bar as an occurrence of indecent exposure proscribed by Penal Code section 314. All involved nude dances which include bumps and grinds and movements by the dancer which simulate an act or acts of sexual intercourse. Three principal attacks are leveled against these convictions: (1) Sergeant Jack Greenlees, the principal ...
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Opinion Appellant, plaintiff in a medical malpractice action, has appealed from an adverse judgment given pursuant to a jury verdict. By reason of People v. Hutchinson, 71 Cal.2d 342 [78 Cal.Rptr. 196, 455 P.2d 132], decided while this appeal was pending, we reverse with instructions to the trial court to hold a new hearing on appellant’s motion for a new trial. Facts Viewed as it mus...
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8 Cal.App.3d 23 (1970) 87 Cal. Rptr. 123 THE PEOPLE, Plaintiff and Respondent, v. SHIRLEY MAE LOVE, Defendant and Appellant. Docket No. 17107. Court of Appeals of California, Second District, Division One. May 25, 1970. *25 COUNSEL Walter L. Gordon, Jr., for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Jerold A. Krieger, Deputy Atto...
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*36 Opinion Petitioner James J. Arditto, an attorney, sought to recover fees from Security Pacific National Bank, conservator of the estate of T. Marie Chilton, for services rendered to Mrs. Chilton between 20 June 1968 and 5 February 1969. The trial court refused to award him fees in addition to the fee of $1,000 he had been awarded for services to Mrs. Chilton between 31 July 1...
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Opinion Following a second nonjury trial, defendant was found guilty of burglary (Pen. Code, § 459), fixed by the court at second degree, and he was sentenced to serve six months in the county jail (Pen. Code, § 461), to run concurrently with a sentence he was then serving under judgment of a federal court. His appeal from the judgment rests on his claim that a confession given to th...
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Opinion Petitioner seeks a writ of prohibition to restrain the superior court from trying him on a felony charge of driving while under the influence of intoxicating liquor. (Veh. Code, § 23101.) He charges violation of his substantial rights through the ex post facto application of a new statute utilizing blood-alcohol test results as the basis of a presumption that he drove under the.influenc...
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Opinion Under the provisions of section 1803 of the Welfare and Institutions Code, this appeal is prosecuted from an order for continued detention. The order was made pursuant to the provisions of sections 1800, 1801 and 1802 of that code. These sections provide that upon application of the Youth Authority Board, the court, after statutorily described notice and full hearing, if it is of the opin...
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Opinion Petitioner is a teacher of English as a Second Language for respondent herein, the Long Beach Unified School District. She has been employed by respondent on an hourly basis since the 1956-1957 school year. On December 1, 1967, she petitioned the superior court for a writ of mandate seeking a judgment requiring that she be classified as a permanent employee of the district retroac...
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Opinion This is an appeal from judgments of nonsuit in personal injury and wrongful death cases arising out of a series of freeway collisions. Plaintiffs brought these actions against defendants Patrick, Smith, and the Yellow Cab Company of San Gabriel Valley as Doe No. 16. Paul K. White was named as a defendant, but apparently was not served. The appeal as to the defendant Smith has been...
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Opinion This is an appeal from an order denying a petition to order arbitration and to stay proceedings in a pending lawsuit until the termination of such arbitration. For the reasons set forth below, we affirm the order. Plaintiff Tri-Cor, Inc., and defendant City of Hawthorne had entered into a contract for the construction by plaintiff of an airport administration buildiñg. The co...
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Opinion Defendant was charged by information with two counts of violation of Penal Code section 187 (murder) and one count of violation of Penal Code section 217 (assault with intent to commit murder). Count I alleged the murder of Wardell Adams; count II alleged the murder of Elaine Adams; and count III alleged an assault with intent to commit murder on the person of Sandra Evans. Defendant pl...
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Opinion In an action (No. 32659) for personal injuries suffered, the Superior Court of Shasta County rendered judgment in the sum of $35,000 together with costs in the sum of $150.48 in favor of plaintiff Connie Hayes and against Jack Liles, individually, and doing business as the Over *160 head Door Company of Chico. Thereafter plaintiff brought the present action (No. 36444...
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8 Cal.App.3d 168 (1970) 87 Cal. Rptr. 55 Estate of FRED M. COX, Deceased. J.K. STICKNEY, JR., as Executor, etc., Petitioner and Respondent, v. PATRICIA DUNCAN SNYDER et al., Objectors and Respondents. HOUSTON I. FLOURNOY, as State Controller, Contestant and Appellant. Estate of FRANCES L. COX, Deceased. J.K. STICKNEY, JR., as Executor, etc., Petitioner and Respondent, v. PATRICIA DUNCAN SNYDER et...
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Opinion Appellant, Mike Edward Solo, and his codefendants, Stephen Lee Johnson, Jeffrey Harold Mercer and Jack Benjamin Weidner, Jr., were jointly charged in an information filed by the District Attorney of Imperial County with possession of marijuana for sale (Health & Saf. Code, § 11530.5), and with transporting marijuana (Health & Saf. Code, § 11531). They all entered pleas of not guil...
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Opinion This is an action brought by the intended buyer of real property against the sellers for damages caused by the sellers’ alleged breach of their escrow agreement. The case went to trial on the basis of the first and fifth causes of action pleaded in a second amended complaint. The first cause of action was for breach of contract. The fifth cause of action *220 purporte...
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Opinion The sole issue presented by this appeal is whether appellant, the putative spouse of a deceased police officer, is entitled to the special death benefit payable to a “surviving spouse” under Government Code section 21364. Statement Of The Facts The facts are undisputed. On October 2, 1966, Lieutenant Edwin A. Adduddell, sometimes referred to hereinafter as the decedent, died at th...
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*253Opinion Phillip Yush died intestate on August 15, 1962, a resident of Los Angeles County. He was survived by a brother (Irwin Yush), two nephews, and a niece. Thereafter the Public Administrator came into possession of certain United States Series E bonds having a death date value of $45,200. These bonds were payable on the death of the owner Phillip Yush to the beneficiary and co-owner Irwin...
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8 Cal. App. 3d 257 (1970) 87 Cal. Rptr. 326 MANUEL PENA et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Docket No. 34876. Court of Appeals of California, Second District, Division Four. May 28, 1970. *259 COUNSEL Robert W. Richards for Plaintiffs and Appellants. Roger Arnebergh, City Attorney, Bourke Jones, James A. Doherty and Jack L. Wells, Assistan...
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Opinion After a jury trial defendant was convicted of first degree robbery (Pen. Code, § 211) and receiving stolen property (Pen. Code, § 496). He is appealing from the judgment. The notice of appeal also refers to “the denial of the 1538.5 motion” which is not an appealable order (see Pen. Code, § 1237). There is no contention that the evidence was insufficient. The robbery victim identified defe...
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*278 Opinion Factual Background In two separate cases in the Municipal Court of the Long Beach Judicial District of Los Angeles County appellant was found guilty of violating section 11721 of the Health and Safety Code, a misdemeanor. He appealed to the appellate department of the superior court which affirmed the judgments and certified the cases for transfer under rule 62, California Ru...
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Opinion On April 14, 1967, plaintiffs filed their action, numbered 79190, against the defendant wherein they sought damages for personal injuries, and for the cost of repair of plaintiffs’ automobile. On April 21, 1967, the defendant filed his action numbered 79238 against the plaintiffs wherein he sought damages for personal injuries, and for the cost of repair of his motor vehicle. Both...
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Opinion Preliminary Statement Defendant, Southern Pacific Company, appeals from a judgment in favor of plaintiff awarding damages in the sum of $86,418. The judgment is entered upon a jury verdict finding total damages in the sum of $96,020, but reducing this amount by 10 percent based upon a finding of that percentage of negligence attributable to plaintiff. Plaintiff’s action w...
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Opinion Alvin S. Kravitz and Jo Ann Mary Kravitz (plaintiffs) appeal from a judgment of dismissal after the sustaining of a demurrer to a second amended complaint without leave to amend as to the defendants State of California (State) and certain of its employees who are on the medical staffs of Atascadero State Hospital and Metropolitan State Hospital. The action was to recover damages for t...
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Opinion Plaintiff, City of San Diego, appeals from that part of an order denying its application for a temporary injunction restraining defendants, American Federation of State, County and Municipal Employees, Local 127, and others, from engaging in a strike or work stoppage. The complaint in the case alleges 200 employees of the Utilities Department and 600 employees of the- Public Works Departm...
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Opinion Plaintiff sued to recover damages for the loss of a briefcase and its contents which defendant had undertaken to transport from Indio to San Bernardino. Following a nonjury trial the court found that the loss occurred through defendant’s gross negligence, assessed damages in the sum of $7,637.70 for the actual value of the briefcase and its contents, and entered judgment for plain...
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Opinion Defendants Pacific Finance Corporation (Pacific) and William Steitz, doing business as Bill Steitz Motor Sales (Steitz), appeal from a judgment in favor of plaintiff Pat Ferraro, entered upon jury verdicts on July 12, 1968, nunc pro tunc as of January 31, 1968. The action was brought for damages resulting from the alleged conversion by Pacific and Steitz of Ferraro’s automobile. At an ear...
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Opinion Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter. Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, § 187) of John Frey; count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace o...
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8 Cal.App.3d 392 (1970) 87 Cal. Rptr. 280 ROBERT HEATH SWAN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 35768. Court of Appeals of California, Second District, Division Four. May 29, 1970. *394 COUNSEL Silber, Schwartz & Benezra and Alfonso M. Bazan for Petitioner. No appearance for Respondent. Evelle J. Younger, Distric...
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Opinion The district attorney of Santa Barbara has petitioned this court for a writ of prohibition, which we treat as an application for a writ of mandate to require the trial court to vacate its order granting a motion to suppress the evidence in support of count I of the information. Factual Background At the evidentiary hearing pursuant to Penal Code section 1538.5 Deputy She...
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Opinion In November of 1965, petitioner was arrested on charges of assault and of attempted rape. Ultimately he pled guilty, in the Municipal Court of the El Monte Judicial District, to a charge of battery. He was certified to the Superior Court for Los Angeles, County for proceedings under the Mentally Disordered Sex Offender Act. Those proceedings ultimately resulted in an order, pursuant to ...
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Opinion Appeals by plaintiff, Oro Madre Unified School District, and defendants, Amador County Board of Education and Laurence Danilovich, Superintendent of Schools of Amador County, from a judgment of the Amador County Superior Court. *411 Questions Presented 1. Jackson Unified School District is “adjacent to the United States forest reserve” within the meaning of section 20251 of the ...
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Opinion Plaintiff appeals from an order granting defendant a new trial. The chronology is this: Plaintiff, a public entity, commenced this action on May 4, 1966, to condemn two parcels of real property owned in fee by defendant, William L. Penzner. The complaint named City of Fresno Mall Assessment District No. 1, a special assessment district formed pursuant to the Pedestrian Mall L...
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Opinion In this declaratory relief action defendant, Colonial Insurance Company (hereafter “Colonial”), appeals from a judgment against it and in favor of plaintiff, Liberty Mutual Insurance Company (hereafter “Liberty”), based upon the holding that Colonial was the primary insurer and Liberty was only the excess insurer of the personal injury claim of one Johnson. On December 17, 19...
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Opinion This is an action for damages brought by a lessor of an office building against a former lessee. After a court trial plaintiff was awarded $8,035 as the cost of restoring the premises and $2,100 for loss of rent during the three months required to complete the work. Defendant is appealing from the judgment. In the trial court this action (superior court No. 873821) was consol...
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Opinion The City of Plymouth (hereinafter “petitioner”) seeks a peremptory writ prohibiting respondent superior court from proceeding further with an action brought against petitioner by real parties in interest, who are property owners. Their suit against petitioner alleges that their property, which has been assessed to pay for municipal improvement bonds, will receive no benefit from s...
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Opinion Plaintiff appeals from a judgment of dismissal, entered pursuant to Code of Civil Procedure section 581, subdivision 3 after defendants’ general' demurrer to his first amended complaint was sustained without leave to amend. In his first amended complaint, plaintiff alleged the following facts: From June 1958 to June 14, 1968, plaintiff was employed by defendant North American...
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Opinion We first consider procedural questions involved in this appeal. On May 21, 1968, a jury returned a verdict of $47,000 in appel *479 lant’s action for personal injuries. When the verdict was entered, the respondent, at the court’s suggestion, made an oral motion for judgment notwithstanding the verdict and for a new trial. Both motions were granted. On May 24, responde...
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Opinion Following jury trial, defendant was found guilty of possession of a sawed-off rifle in violation of section 12020 of the Penal Code. He admitted two charged prior felony convictions. Probation was denied and defendant was sentenced to state prison for the term prescribed by law with reservation of jurisdiction pursuant to section 1168 of the Penal Code. Defendant appeals from the judgme...
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Opinion This action was instituted by Union Central Life Insurance Co., Inc. in interpleader to determine who is entitled to the proceeds of an insurance policy. These funds have been deposited with the court and said plaintiff is no longer a party. Defendant Karla G. Pepe appeals from that portion of the judgment in favor of defendant Mavis C. Janssen. We'refer to an opinion in a prior appeal of ...
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Opinion The petitioners, Patricia Ann Pierson and Robert Pierson, seek a writ of mandate to require the Superior Court of Los Angeles County to vacate its order denying their motion to suppress evidence seized by the police in the search of (1) the Pierson residence, (2) the person of Michael (Mike) Levy, and (3) a pickup truck. Factual Background An information was filed chargi...
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Opinion Appellant, State Board of Medical Examiners, has appealed from a judgment of the superior court mandating it to issue a license to respondent to engage in the practice of psychology. We affirm the judgment. Statutory Scheme Prior to November 8, 1967, the law of California did not prohibit the practice of psychology without a license. The law did prohibit any person f...
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Opinion William Cowan appeals an order dismissing with prejudice his complaint against The Flying Tiger Line, Inc. (Flying Tigers) after a demurrer to his complaint was sustained without leave to amend. Cowan was a co-pilot for Flying Tigers for 11 years and a member of the Air Line Pilots Association (ALPA). His complaint sought damages against Flying Tigers for wrongful discharge in violation ...
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Opinion Plaintiffs, Arnold Wiebe, doing business as Arnold Wiebe Buick, and Truck Insurance Exchange, hereafter referred to as Exchange, brought this action in the court below to reform an insurance policy and for declaratory relief. They named Charlotte Preston, the heirs of George T. Dudney, hereafter referred to as the Dudneys, and the Wilshire Insurance Company, hereafter referred to ...
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8 Cal. App. 3d 563 (1970) 87 Cal. Rptr. 453 SONJA J. KAMINSKI, Plaintiff and Appellant, v. RICHARD L. KAMINSKI, Defendant and Respondent. Docket No. 26415. Court of Appeals of California, First District, Division One. June 10, 1970. *564 COUNSEL Claude W. Heavin for Plaintiff and Appellant. Suren Toomajian and James R. Holmstron for Defendant and Respondent. OPINION ELKINGTON, J. Plaintiff Sonja ...
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Opinion We have issued alternative writs of prohibition and mandate in order to consider the jurisdiction of the superior court to *571 hear and determine an appeal by the People from a municipal court order suppressing evidence before trial of a misdemeanor case, under Penal Code section 1538.5. Section 1538.5, subdivision (j), as relevant here, provides: “. . . If the property or eviden...
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Opinion Plaintiffs appeal from a judgment of dismissal following the granting of defendant city’s motion for summary judgment. Plaintiffs *575 were struck by a vehicle driven by one . Wilson (who is not a party to the action) while they were in a crosswalk. This action was brought against the City of Santa Clara on two theories: 1) that the crosswalk was unlighted, unp...
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8 Cal.App.3d 579 (1970) 87 Cal. Rptr. 387 MARJORIE GARRETTE MANDANIS, Plaintiff and Appellant, v. GEORGE PETER MANDANIS, Defendant and Respondent. Docket No. 34085. Court of Appeals of California, Second District, Division One. June 10, 1970. *581 COUNSEL Ephraim Margolin for Plaintiff and Appellant. John M. Sink for Defendant and Respondent. OPINION LILLIE, Acting P.J. The parties entered into a...
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Opinion After a preliminary examination, petitioner was charged in respondent court with a violation of section 288 of the Penal *594 Code. He moved, purportedly pursuant to section 1538.5 of the Penal Code, to suppress evidence which he contends was obtained in violation of his constitutional rights. The motion was denied. Pursuant to sub-, division (i) of section 1538.5, he petitioned this ...
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*601 Opinion By information, defendant Sims, along with codefendants Neelon and Parker, was charged in count I with possession of a sawed-off rifle with a barrel less than 16 inches (Dangerous Weapons’ Control Law, § 12020, Pen. Code); in count II with burglary (Pen. Code, § 459) of the premises of one Barnes (apparently involving the theft of a shotgun and some shells owned by B...
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8 Cal.App.3d 606 (1970) 87 Cal. Rptr. 551 JACQUELINE RULLMAN, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant. Docket No. 12159. Court of Appeals of California, Third District. June 10, 1970. *607 COUNSEL Rich, Fuidge, Dawson, Marsh & Morris and Charles Dawson for Defendant and Appellant. Goldstein, Barceloux & Goldstein, P.M. Barceloux, Burton...
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Opinion A complaint was filed in the Sacramento Municipal Court charging the respondent, Frances Childress, with a violation of section 311.2 of the Penal Code (exhibition and distribution of obscene films). 1 Respondent filed notice of motions in the municipal court for an order suppressing the evidence, for an order dismissing the complaint, and for a municipal court review of the films. ...
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Opinion This is a companion case to Childress v. Municipal Court, ante, page 611 [87 Cal.Rptr. 383], *617The facts arid procedural background are essentially the same and repetition is not necessary. The People also bring this appeal from the order of the superior court finding the seized films not obscene, and restraining the district attorney and municipal court from prosecuting the respondent f...
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*620Opinion Petitioner Collins seeks review of the appeals board’s opinion and order denying reconsideration of a referee’s decision which found: (1) That petitioner had sustained an industrial injury for which he was entitled to certain limited costs of medical care and to temporary disability for a brief period; and (2) That his subsequent nonindustrial injury was completely separate in result, ...
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Opinion Defendant, the administrator of the estate of a deceased husband who intentionally and feloniously killed his wife and immediately thereafter committed suicide, has appealed from a portion of a judgment entered in an action for declaratory relief brought by the administrator of the wife’s estate for a declaration and adjudication of the respective rights and duties of the plaintif...
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Opinion Defendant appeals from that part of a judgment obtained by plaintiff providing for the revocation of a stay of a writ of execution theretofore obtained by defendant. Plaintiff wife was granted an interlocutory judgment and decree of divorce from defendant husband on April 26, 1966. The decree provided that defendant was to pay plaintiff $140 alimony and $60 child support monthly. It a...
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Opinion This is an appeal by plaintiff objectors from the probate court’s order of settlement of first and final account and distribution in the estate of Teresa Turino, deceased, and a cross-appeal by defendant executor from that part of said order awarding the attorney for the executor only part of his total fee requested for extraordinary services. This appeal is the latest of a number of proce...
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Opinion Can a city bond issue, authorized by a two-thirds vote of the people at a maximum interest rate of 6 percent, be amended by a like vote of the people to authorize a higher interest rate? That is the question presented in this original proceeding in mandamus. Petitioner is a general law city. On April 22, 1969, its council adopted an ordinance calling an election for the issuance of $1...
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Opinion This appeal presents questions relating to (1) the validity of a tax sale of personal property as affected by the notice given thereof, and (2) the effect of an erstwhile junior encumbrancer’s tax purchase of the property. Appellant Dohrmann Co. (hereinafter “plaintiff”) brought the action, for declaratory relief, against Security Savings and Loan Association (“Security”) and...
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Opinion Andrew Norman, a wealthy man, was the trustor of an amendable living trust. Defendant Andrew Norman Foundation, a nonprofit corporation, receives for use for its general charitable purposes the net income from the trust after the payment of fees, expenses and specified amounts to designated individuals. On January 14, 1958, the trustor amended the trust to include plaintiff ...
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*676 Opinion Plaintiffs (husband and wife) own a parcel of unimproved land in the City of San Luis Obispo. Defendants own an abutting parcel. Defendants erected what is known as the Southwood Shopping Center on their land. Plaintiffs filed a complaint March 22, 1967, setting forth three causes of action against defendants. On March 6, 1969, defendants noticed a motion for summary judgment i...
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Opinion Defendants (hereinafter collectively called “sellers”) are the owners of real property which plaintiff corporation (hereinafter called “buyer”) contracted to purchase by a document dated December 1, 1967, entitled “Standard Form Deposit Receipt.” That document contemplates that the transaction would be completed through an escrowee. Unfortunately, as is so often the case with contract...
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*693 Opinion This is a proceeding in mandate to compel the San Bernardino Superior Court to dismiss a civil action for failure to bring it to trial within two years after it was filed. Petitioner’s motion to dismiss the action was denied in the trial court. In November 1965 the real parties in interest, Doris Ruby Sanders and Gussie Earnest Sanders (plaintiffs), filed suit against petitione...
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Opinion This appeal is from a conviction of murder of the second degree. On the morning of the day they were to marry, appellant shot his common law wife with a . 12-gauge pump shotgun. There were no eyewitnesses to the shooting, which appellant contends was accidental. He said he did not know the gun was loaded, that just as he pulled the trigger the victim told him it was loaded but it was to...
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Opinion Appellant was convicted of two counts of battery upon a police officer engaged in the performance of his duties. He has appealed from that conviction and from an order revoking his probation granted in another conviction. Prosecution Evidence The evidence presented by the prosecution reveals the following. On September 8, 1968, Officers Kimball and Bluth of the Los Angeles Police Departm...
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Opinion A jury found defendants guilty of first degree robbery. They appeal, 1 contending that (1) the trial court prejudicially restricted their cross-examination of the complaining witness; (2) a statement of defendant Coleman was received in evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974];...
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Opinion The State Board of Barber Examiners appeals from an order denying its application for a preliminary injunction to prevent Ricky Star and Elizabeth Star from charging less than the Board’s minimum price schedule for haircuts in the Stars’ barbershop. The Board’s complaint for injunctive relief against the Stars is based upon Business and Professions Code section 6558. The Star...
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Opinion The grand jury indicted Michael John Thornton, Ronald Lee Walker, Robert Michael Turner and Randal Lee Pelton for possessing marijuana (Health & Saf. Code, § 11530) and for knowingly visiting a place where people were unlawfully smoking and using narcotics (Health & Saf. Code, § 11556). The district attorney had previously filed an information against the defendants charging the s...
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Opinion The Department of Motor Vehicles appeals from a judgment in a mandamus proceeding in effect setting aside its order suspending the driver’s license of Ernest Adron Rees for refusal to take the chemical test prescribed by Vehicle Code section 13353. *749 This is another in a series of cases involving the question whether a person who was arrested for driving while intoxicated, was ad...
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Opinion Defendant appeals from a judgment awarding plaintiff damages on an undertaking executed by defendant as a condition to issuance of a preliminary injunction restraining a foreclosure sale instituted by plaintiff. Plaintiff made a construction loan to Signal Development Company evidenced by a promissory note secured by a deed of trust on the real property on which apartment hou...
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*765 Opinion Nadine Kinney and her husband Rodney Kinney, plaintiffs below, commenced an action against Don Vallentyne, a private citizen, Roy Wallis, a sheriff’s deputy, and the County of Contra Costa. As to Wallis and the county, relief was sought based on false arrest and false imprisonment. As to the county alone additional relief was sought for “failure to provide medical attention” and ...
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Opinion Petitioner, plaintiff in an action to obtain indemnity from its insurers, asks for a writ of mandate to set aside an order of respondent court denying its motion for a partial summary judgment. Real party insurers, defendants in the action, contend in their opposition to plaintiff’s petition that their own motion for partial summary judgment should have been granted. The trial cou...
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*778 Opinion On this appeal from a judgment entered on a jury verdict finding defendant, Rodney Keim, guilty of burglary (Pen. Code, § 459) and rape (Pen. Code, § 261) ( No. 42473), and revoking probation in another matter (No. 38324), the only question is whether the absence of defendant’s counsel at a lineup violated the constitutionally grounded rules enunciated by United States v. Wade...
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Opinion Constance Kaufman, on behalf of herself and her five minor children, appeal's a juvenile court order of 17 October 1968 which renewed the status of four of her children as dependents of the court and terminated the dependency status of the fifth child, Michael Robinson. The original order of dependency had been entered in 1963 on the ground that Constance was emotionally disturbed and inc...
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Opinion Found guilty of second degree burglary by the court sitting without a jury, defendant was sentenced to state prison and appeals. The residence of Mr. and Mrs. Koyama was burglarized some time between 11:40 a.m. on January 9, 1969, and 2 a.m. the next day. The front door was left open. A television set and a piggy bank had been taken. A window had apparently ,been forced as a means of ...
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Opinion This is an action for a refund of unemployment insurance taxes paid under protest by the plaintiff, a farming corporation. The trial court, sitting without a jury, considered the case to be one of first impression, found for the plaintiff, and in so doing held section 627, subdivision (b) of the Unemployment Insurance Code to be unconstitutional as applied to the facts in this cas...
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8 Cal. App. 3d 804 (1970) 87 Cal. Rptr. 620 JAMES E. MOORE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DIANE K. MOORE, Real Party in Interest. Docket No. 10307. Court of Appeals of California, Fourth District, Division One. June 15, 1970. *807 COUNSEL Silverton & Silverton, Samuel L. Sosna, Jr., and Max Abrams for Petitioner. No appearance for Respondent. Linley, McDou...
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8 Cal.App.3d 812 (1970) 87 Cal. Rptr. 539 W.G. LEWIS, Plaintiff and Appellant, v. ARBOLES DEVELOPMENT COMPANY et al., Defendants and Respondents. Docket No. 35081. Court of Appeals of California, Second District, Division Two. June 16, 1970. *813 COUNSEL Perlmutter & Hall and Roger A. Saevig for Plaintiff and Appellant. Walsworth, Seidel & Crail and John F. Keating for Defendants and Resp...
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Opinion This action by appellants is against the Tagus Ranch Motel Corporation and others for $14,500 allegedly due appellants for sums advanced to the corporation. Respondents, who were among but not all of the directors and shareholders of the corporation, were sued for the same amount in their individual capacities. In a separate cause of action, the complaint alleges that the responde...
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Opinion Defendant appeals from a judgment entered upon a jury verdict awarding plaintiff $4,000 damages for personal injuries and $1,436 for property loss damage resulting from the failure of defendant to return six rings which plaintiff had entrusted to defendant for the purpose of having the stones in said rings removed and reset in a new ring. 1 Adverting to the facts most...
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Opinion Defendants, the County of Contra Costa and the members of its board of supervisors, have appealed from a judgment directing the issuance of peremptory writ of mandate commanding them to compensate and provide benefits for the plaintiffs, six employees of the Municipal Court of the Richmond Judicial District, equal to and with the same effective date as other county employees, and ...
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Opinion Defendant Ambrozic was convicted of violating Health and Safety Code sections 11530, .11531 and 11910, following a nonjury trial. *870 On the section 11530 charge, judgment sentencing him to state prison was imposed. On the remaining charges, sections 11531 and 11910, imposition of judgment was suspended and he was placed on probation for five years and three years, respectively. He...
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Opinion Appellants, Mendoyoma, Inc., a corporation, and M. E. Dibble, filed a complaint for money and an injunction against respondent, County of Mendocino, alleging that the county breached a concession agreement entered into between Mendoyoma and the county. Following *876 a trial without a jury judgment was entered awarding Mendoyoma damages of $82,844.57, less $6,237.43 for taxes due from...
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Opinion In December of 1949 plaintiff secured an interlocutory decree of divorce from defendant which, among other provisions, approved a property settlement agreement between the parties entered into three months earlier; these provisions were made binding by the terms of the final judgment entered in January of 1951. More than 17 years later (in July of 1968) plaintiff, by way of an order to ...
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Opinion The judgment appealed from was entered by the trial court on the stipulation of counsel for both parties, which stipulation had been made a matter of record in the trial court’s minutes. Appellant did not seek relief from the stipulation or relief from the judgment in the trial court but filed an appeal. Since a judgment entered pursuant to stipulation is not appealable (Reed v. Murp...
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Opinion The appellants Disabled American Veterans, California Department, a corporation (hereafter “DAV”), and the Military Order of the Purple Heart of the U.S.A., Inc., Department of California (hereafter “Purple Heart”) 1 appeal from an order of the superior court striking on the Attorney General’s motion their objections to a proposed disposition of assets under section 980...
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Opinion Annie Legerretta (also known as Annie Mendoza) and Benito Martinez, codefendants below, appeal from judgments imposing sentence for conspiracy to commit theft (Pen. Code, § 182) and appeal from their convictions of grand theft (Pen. Code, § 487, subd. 1). Proceedings Below On August 14, 1968, a two-count indictment was returned charging Annie Legerretta (Annie) and Benito Martinez (...
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*943 Opinion Plaintiffs brought this action in the court below, seeking a declaration that the automobile liability insurance policy issued by defendant Globe Indemnity Company provides the primary coverage for plaintiff William Frye and his employer, Communication Enterprises, Inc., for any damages resulting from the automobile collision between Frye and defendant Linda Lee Bund...
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Opinion Appellants Mueller and Hines were each convicted in the Municipal Court of the South Bay Judicial District of two violations of section 12-4.204(d) of the Municipal Code of the City of Redondo Beach. The convictions were reversed by the Appellate Department of the Los Angeles Superior Court which, on its own motion, certified the matter to this court. We affirm the judgments of convicti...
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*958Opinion Plaintiff wife appeals from an order reducing an earlier order for alimony and denying her request for attorney fees in resisting that order. For the reasons set forth below, we reverse the order in both particulars. The parties were married in 1952; they separated on February 2, 1966; they had one child—a son—born in March of 1956. On October 15, 1966, they entered into a “Marital Pro...
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*965 Opinion Defendant, together with Melvin Kirksey, was charged with one count of robbery; three prior felony convictions were also alleged against defendant; he pled not guilty and admitted the priors. After a trial by jury, he was found guilty of robbery in the second degree; a motion for a new trial was made and denied; probation was denied; he was sentenced to state prison;...
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Opinion The question on this appeal from the superior court’s summary denial of a writ of mandate is whether this indigent appellant 1 from a criminal conviction in a municipal court, is entitled, as a matter of right to a free transcript on appeal without having made any effort to procure a settled statement on appeal as prescribed by rules 184 through 187 of California Rules ...
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8 Cal. App. 3d 978 (1970) 87 Cal. Rptr. 770 STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and DAVID CARL CHILDS, Respondents. Docket No. 35659. Court of Appeals of California, Second District, Division Five. June 19, 1970. *979 COUNSEL T. Groezinger, Loton Wells and A.C. Jones for Petitioner. Rupert A. Pedrin, Nathan Mudge, Sheldon M. Ziff, Gabriel L. Sipa...
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Opinion After being charged by indictment, defendant was found guilty of possession of marijuana (Health & Saf. Code, § 11530) and sale of heroin (Health & Saf. Code, § 11501). He appeals from the judgment. No recitation of the facts is required here, for there is no contention of insufficiency of the evidence, or other question raised necessitating reference to them. The contention ...
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Opinion These consolidated appeals are from two orders of the juvenile court declaring the minor appellants wards of the court, pursuant to section 602 of the Welfare and Institutions Code (delinquency). The only contention is that the prosecution’s case was based on evidence obtained as the result of unlawful search and seizure since the entry into their apartment was induced by a ruse. The ...
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Opinion Defendant Allan Ludviksen was tried by a jury and found guilty of first degree burglary. The court suspended the imposition of sentence and placed defendant on supervised probation for a period of one year. Defendant appeals. Defendant does not challenge the sufficiency of the evidence. The facts will be set forth only insofar as they are relevant to defendant’s arguments on appeal. ...
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Opinion Plaintiffs were given judgment on their “Complaint for Money” alleging non-payment of sums due from defendant, plus interest, under a written contract for the purchase of an industrial linen and supply route; defendant was also ordered to pay plaintiffs the sum of $75 for its wilful failure to file timely answers to certain interrogatories propounded prior to trial, which order do...
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*1012 Opinion In each of these consolidated actions the licensee has appealed from a judgment of the superior court 1 granting the Director of the Department of Alcoholic Beverage Control a peremptory writ of mandate commanding the Alcoholic Beverage Control Appeals Board to set aside a decision and order which had reversed a decision of the Department suspending the l...
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Opinion Home Trust Investment Company and Bixby Hills Investment Company appeal from a judgment entered pursuant to a jury award of $526,000 as just compensation for condemnation of land to be used for freeway purposes. On November 14, 1966, the date respondent filed its complaint in eminent domain, appellants were the owners of two large tracts of land (Tracts 21067 and 23482) in Long Beach. The...
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8 Cal. App. 3d 1042 (1970) 87 Cal. Rptr. 778 ROBERT BLOCK, Plaintiff and Appellant, v. LABORATORY PROCEDURES, INC., Defendant and Respondent. Docket No. 35266. Court of Appeals of California, Second District, Division Four. June 23, 1970. *1044 COUNSEL Lloyd F. Dunn for Plaintiff and Appellant. Abeles & De Bro and Harold A. Abeles for Defendant and Respondent. OPINION IRWIN, J.[*] Appeal by p...
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Opinion The petitioner seeks a “writ of prohibition and/or mandate” to nullify the effect of the court’s order denying his motion to suppress evidence seized on a search of his residence. Factual Background Los Angeles County Deputy Sheriff John Rodriguez was the only witness concerning the reasonableness of the challenged search and seizure. In the course of an investigation of 25 persons ...
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*1059Opinion The appellant, retirement board, appeals from a judgment rendered in favor of respondent, Kobelin, after submission of an agreed case to the trial court. (Code Civ. Proc., § 1138.) The chronological calendar of events from the facts agreed upon are as follows: August 1,1927 Respondent was employed by the County of San Diego. July 1,1939 San Diego County Employees Retirement System est...
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Opinion Defendant and codefendants Gerald Joseph Gallant, Jr., and Robert Higuera, were indicted by the grand jury charging all defendants with four counts of kidnaping (Pen. Code, § 207), two counts of assault with a deadly weapon (Pen. Code, § 245), three counts of robbery (Pen. Code, § 211), and one count of burglary (Pen. Code, § 459). Defendant pled not guilty, and not guilty by reason o...
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Opinion The defendant in this case was arrested at the same time and place and for the same offense as the defendants in People v. Uptgraft (1970) Crim. A. No. 8603, ante, p. Supp.1 [87 Cal.Rptr. 459]. The record is different in many respects but we shall restate the facts only where the differences present different legal problems. The principal difference is that Captain Lembke did not testify ...
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Opinion This appeal evolved from an action filed by plaintiff, the appellant, Division of Labor Law Enforcement, against respondent, El Camino Hospital District. The complaint alleges willful failure to pay wages in violation of the Labor Code and seeks assessment of penalties. Respondent is a hospital district organized under the provisions of the Hospital District Act (Health & Saf. Code, §§ 32...
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*Supp. 39Opinion This is an appeal by the People from an order of the Municipal Court, San Jose-Milpitas Judicial District, dismissing the charge against respondent, purportedly in furtherance of justice according to Penal Code section 1385. Respondent had been charged with a special misdemeanor for violation of Vehicle Code section 21804 (failure to yield right of way). At trial before the court,...
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*4 Opinion Appellant Joan Czap sued to enjoin respondent credit bureau from garnishing her wages in execution of a $250 judgment for attorney fees incurred in a divorce action. She alleges that respondent rejected her offer to pay the judgment in installments and that repeated levies are threatened despite respondent’s knowledge that all but $45 weekly of appellant’s wages are exempt from exe...
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Opinion Yolan Goldberger, next-of-kin of decedent Maximillian N. Lando, and her assignees, appeal the denial of their petition to revoke probate of decedent’s holographic will on the ground that the will is not entirely in decedent’s handwriting. Respondents are beneficiaries under the will—the University of Minnesota, the Attorney General of California (representing a charitable trust for the ben...
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Opinion The defendant was found guilty, by jury verdict, of two counts of first degree burglary (Pen. Code, § 459). The information charged and the jury found that he had been armed with a deadly weapon, to wit, a butcher knife, at the times the offenses were committed. Probation was denied and defendant was sentenced to state prison. He appeals from the judgment. Approximately 45 minutes bef...
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Opinion The issue presented in this appeal is whether certain scrap metal which was awaiting shipment to Japan had entered the export stream and thus was exempt under the export clause of the federal Constitution (art. I, § 10, cl. 2) from an ad valorem property tax levied by defendants. In 1961 plaintiff Hugo Neu Corporation entered into a sales contract with a group of Japanese ste...
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7 Cal.App.3d 30 (1970) 86 Cal. Rptr. 374 THE PEOPLE, Plaintiff and Respondent, v. HERBERT H. KOONTZ, Defendant and Appellant. Docket No. 15407. Court of Appeals of California, Second District, Division Five. April 28, 1970. *32 COUNSEL Herbert H. Koontz, in pro. per., and Donald F. Roeschke, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, ...
Views: 8
7 Cal.App.3d 39 (1970) 86 Cal. Rptr. 435 THE PEOPLE, Plaintiff and Respondent, v. PAUL HOFFMANN, Defendant and Appellant. Docket No. 15745. Court of Appeals of California, Second District, Division Five. April 28, 1970. *41 COUNSEL Peter J. Linden, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General...
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*51 Opinion Statement of the Case Defendant was charged by information with .the crime of armed robbery. Defendant was duly arraigned, pleaded not guilty and after trial by jury, was found guilty of robbery of the first degree. Defendant’s motion for a new trial was denied and he was sentenced to state prison. Defendant appeals from the judgment. Statement of Facts On December 23, 1...
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Opinion This is a consolidation of two appeals by Ernest Ralph Villarino (defendant). The appeal in No. 3761 is from a judgment imposing sentence following the revocation of probation in an offense involving narcotics. That appeal was taken because probation was revoked following defendant’s conviction of forgery in the case in which appeal No. 3760 was taken. For that reason the appeal in No. 37...
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Opinion This appeal is from a judgment of dismissal following the sustaining, without leave to amend, of a general demurrer to the amended complaint, which pleads four causes of action. The order and memorandum sustaining the general demurrer recite that the demurrer is sustained upon *72 the grounds that (1) no cause of action was stated, and (2) the court had no jurisdictio...
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7 Cal.App.3d 78 (1970) 86 Cal. Rptr. 440 VICTOR TAHAN, Plaintiff and Appellant, v. SHERMAN THOMAS, Defendant and Respondent. Docket No. 1141. Court of Appeals of California, Fifth District. April 28, 1970. *79 COUNSEL Eugene A. Biglow for Plaintiff and Appellant. Sherwood Green and Denslow Green for Defendant and Respondent. *80 OPINION GARGANO, J. Plaintiff brought this action against defendant ...
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Opinion Defendant manufacturer has appealed from a judgment awarding the plaintiff damages for injuries to his left arm which he claimed were caused when the transmission selector lever in the unattended car he had been operating slipped from the park to the reverse position. His arm was crushed between the backing car and the centerpost of his garage while he was attempting to stop the v...
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*112 Opinion Plaintiff landowner filed an action against defendant Union Oil Company seeking to recover $155,400 pursuant to a purported license agreement between plaintiff and Union which allegedly permitted Union to continue the utilization of a private telephone line over plaintiff’s land. Judgment was rendered in favor of Union in the court below. The court concluded that no license agree...
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Opinion Defendant appeals from a conviction of robbery. Allegedly he and a man named Williams, on October 31, 1968, shortly after 8 a.m., robbed the owner of a market, Mrs. Abraham. An 11-year-old girl named Dianna Jaramillo was present at the time of the robbery. The police were notified. Mrs. Abraham was interviewed by Officer Weaver and gave him a description of the two men who robbed her. At a...
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Opinion By this writ of review, the Department of Alcoholic Beverage Control seeks annulment of the order of the A. B. C. Appeals Board reversing a disciplinary decision of the department. Dan Kane, Inc. holds an on-sale liquor license under which it operates the Tally Ho in San Francisco. Mr. Kane, president and sole stockholder of the corporate licensee, devoted the evening of July 5, 1967 to i...
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Opinion Appellants, who are tenants of respondent Housing Authority of the City of Pleasanton, sued to enjoin an increase in rents and to obtain a judicial declaration that the housing authority may not operate its residential properties at a profit. The housing authority was formed under the provisions of the Housing Authorities Law (Health & Saf. Code, § 34200 et seq.) Both as orig...
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7 Cal.App.3d 135 (1970) 86 Cal. Rptr. 323 JEAN HOWDEN-GOETZL et al., Petitioners, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; WESTERN URBAN REDEVELOPMENT INVESTMENT CORPORATION et al., Real Parties in Interest. Docket No. 27580. Court of Appeals of California, First District, Division Four. April 30, 1970. *136 COUNSEL Patrick, Buchanan & Phillips, Theodore W. Phillips and Barbara Ashley...
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Opinion Petitioner seeks review and annulment of an award of permanent disability indemnity, issued by the Workmen’s Compensation Appeals Board on reconsideration of a referee’s decision, The board refused to incorporate, as factors of permanent disability, certain work restrictions recommended by the medical experts. The ground relied on by the board was that the restrictions were “prop...
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7 Cal.App.3d 147 (1970) 86 Cal. Rptr. 555 ROBERT DENNIS CRUEGER et al., Petitioners, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 27761. Court of Appeals of California, First District, Division One. May 1, 1970. *148 COUNSEL Hutton, Foley & Anderson and Peter D. Anderson for Petitioner. Thomas C. Lynch, Attorney General, Derald E. Granberg a...
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*157 Opinion Statement of the Case Each defendant was charged by information in count I with the offense of robbery on March 10, 1968, it likewise being alleged that at the time of the commission of the offense defendants were armed with deadly weapons, to wit, rifles; violations of section 209 of the Penal Code (counts II and III) and in count IV with a violation of section 12020 of the ...
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*165Opinion Statement of the Case On June 9, 1965, defendant was convicted in the Los Angeles County Superior Court of a violation of section 11500 of the Health and Safety Code (possession of narcotics) and he was referred for a hearing on a possible commitment as a narcotic addict.'After a hearing pursuant to section 64511 of the Penal Code defendant was found to be a narcotic addict, and on J...
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Opinion Statement of the Case By information defendant and codefendant Shipman were charged in count I with burglary and in count II with receiving stolen property. A motion under Penal Code section 995 was argued and granted as to count I and denied as to count II. The information was amended to charge defendant with two prior felony convictions in Texas. Defendant was arraigned and denied...
Views: 9
Opinion Anderson & Perkins, Inc., as assignee for collection, commenced an action in the San Francisco Municipal Court against Edgar A. Castellini, Columbia Electric Co., a corporation, and others for money owed. The parties and the municipal court interpreted the complaint as alleging that Columbia Electric Company had contracted the indebtedness, but that Castellini was also liable, sin...
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*180 Opinion The parties to this appeal are the successive assignees of the accounts receivable of a hotel. The trial court, sitting without a jury, found that defendant Blethen, the assignee first in time, had collected $8,491.53 on accounts which had been lawfully assigned to plaintiff Contiental Bank, who had obtained priority by filing the notice prescribed in former Civil Code section 30...
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Opinion By amended information, appellant, Buford Troy Cooper, together with his codefendant, Phillip Leon Bridges, not a party to this appeal, was charged in count I with assault with intent to commit rape (Pen. Code, § 220), in count II with assault with intent to commit robbery (also Pen. Code, § 220), in count III with kidnapping for the purpose of committing robbery (Pen. Code, § 209), in ...
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Opinion In a declaratory relief action tried to the court it was adjudged that plaintiff Key Insurance Exchange had no duty to “defend or indemnify” defendant Benjamin F. Horne in an action commenced against him by defendant Bert Washington. Defendant Washington alone appeals from the judgment. The earlier action against Horne was brought to recover for personal *211 injuries sustained by W...
Views: 3
7 Cal.App.3d 214 (1970) 86 Cal. Rptr. 562 MORGAN G. KEATON, Plaintiff and Respondent, v. JOAN WILBURN KEATON, Defendant and Appellant. Docket No. 26506. Court of Appeals of California, First District, Division One. May 5, 1970. *215 COUNSEL Spencer W. Strellis and Maurice Engel for Defendant and Appellant. Francis H. Ollerdessen for Plaintiff and Respondent. OPINION ELKINGTON, J. Joan Keaton appe...
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Opinion The appellant (father) appeals from orders of the superior court granting certain specified visitation privileges to the respondents (grandparents) of the minor child. Custody of the minor child, Benjamin, had been awarded jointly to the parents and the actual physical custody to the maternal grandparents, Mr. and Mrs. Curl, at the time of the divorce in February 1964. The mother of t...
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Opinion Appellant administratrix seeks recovery for the wrongful death of her decedent. Respondent’s general demurrer to appellant’s amended complaint was sustained without leave to amend. The appeal is from an ensuing judgment of dismissal. As to several defendants the amended complaint alleged that on August 30, 1967 decedent, as he was leaving the Firestone Tire and Rubber Company plant in...
Views: 10
Opinion C. D. H., Jr. appeals from an order of the juvenile court adjudging him to be a minor coming under the jurisdiction of the juvenile court, pursuant to Welfare and Institutions Code section 602, in that appellant violated Penal Code section 245 (assault with a deadly weapon) by shooting Keith Baldy with a .22 rifle. On the evening of the shooting appellant, the victim Keith Baldy, and other...
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Opinion Petitioner Lynn A. Perry seeks a writ of habeas corpus to recover custody of her children. She also seeks a writ of prohibition to restrain respondent superior court from determining whether changed circumstances warrant withholding enforcement of a Nevada divorce decree giving her custody of the children. Mrs. Perry and James Gillem were divorced in Nevada in 1968. Mrs. Perry was awa...
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Opinion Petitioner Jerry Lee Clifton is charged with murder (Pen. Code, § 187) and robbery (Pen. Code, § 211). Petitioner Clarence Olien Johnson, Jr., is charged in a separate information with murder (Pen Code, § 187) and two counts of robbery (Pen. Code, § 211). After denial of their motions in the trial court, they seek mandate to compel change of venue from Humboldt County and suppression of...
Views: 23
7 Cal.App.3d 257 (1970) 86 Cal. Rptr. 737 THE PEOPLE, Plaintiff and Respondent, v. PETER DANIEL BOGART et al., Defendants and Appellants. Docket No. 13244. Court of Appeals of California, Second District, Division Two. May 5, 1970. *259 COUNSEL Bertram H. Ross, under appointment by the Court of Appeal, for Defendants and Appellants. Barry H. Lawrence as Amicus Curiae on behalf of Defendants and A...
Views: 12
Opinion Plaintiff-appellants (Gordons) are the owners of Marysville store premises. Those premises were leased from the Gordons by defendant-respondent J. C. Penney Company (Penney). The written lease was drawn by Penney. On July 9, 1964, the premises were damaged by fire. The agreed insured loss was $174,645.52. Gordons filed an action against Penney to recover those and other losses. Th...
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*288 Opinion In this era when calendar congestion afflicts the California court system, attorneys could avoid squabbles such as this by recognizing the difference between legitimate and illegitimate discovery and by a modicum of cooperative observance of the spirit of the discovery statutes. Had plaintiff’s * attorneys utilized discovery as a tool rather than a bludgeo...
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7 Cal.App.3d 291 (1970) 86 Cal. Rptr. 632 DONAHUE CONSTRUCTION COMPANY et al., Plaintiffs and Appellants, v. TRANSPORT INDEMNITY COMPANY, Defendant and Respondent. Docket No. 26539. Court of Appeals of California, First District, Division One. May 6, 1970. *294 COUNSEL Hoge, Fenton, Jones & Appel and Charles R. Keller for Plaintiffs and Appellants. Toff, Gordon & Royce and F. John Royce for Defen...
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Opinion Defendant was convicted by a jury of arson (§ 447a, Pen. Code) and arson with intent to defraud an insurer (§ 548, Pen Code.) She appeals from the order granting probation. Defendant, her 17-year-old grandson Steven and Elmo, a servant, lived at 8876 Lookout Mountain Drive in a two-story frame house built on stilts on a hillside. On August 22, 1967, Steve’s girl friend, Diana, also 17...
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Opinion The trial court found appellant to be a narcotic drug addict within the meaning of section 3100.6, Welfare and Institutions Code, and committed him to the Director of Corrections, California Rehabilitation Center. He appeals from order of commitment and “from each and all orders . . . made adverse to” him. The following relates only to probable cause and the evidence is viewed in a light m...
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*335 Opinion Lawrence Lee Carter was charged with the murder of Artelyous Jacobs on 29 December 1967. A prior conviction for assault with a deadly weapon was charged and admitted. A jury found Carter guilty of murder in the first degree, and the court sentenced him to life imprisonment. He appeals. The case involved a singularly brutal and wanton killing by two men and three girls, who purs...
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*343 Opinion In April 1965, William R. Flint, Betty Louise Flint (his wife) and Margaret Parr, as incorporators, duly organized a corporation known as Gourmandises, Inc. The articles of incorporation provided for a single class of stock, in the amount of 20,000 shares with a par value of $10 per share. The two Flints subscribed for 100 shares of stock and paid the corporation $1,000 therefor....
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Opinion Convicted by jury of the second degree murder of his wife (Pen. Code, § 187), and sentenced to state prison, defendant appeals. The defendant and the victim had been married for 20 years and had four children. Their Riverside residence was the scene of considerable marital discord, marked by frequent disputes over the disciplining and upbringing of the children. Defendant inflicted ph...
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Opinion A jury found the appellant guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245). He was found not guilty on charges of (1) assault with a deadly weapon, to wit, an iron bar, and (2) possession of a deadly weapon, to wit, a billy. The appellant appeals from the judgment sentencing him to prison. As grounds for appeal, he urges misconduct of the dep...
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*368 Opinion Under the two-year discretionary dismissal provision (Code Civ. Proc., § 583) this action was dismissed as to Southern Railway, the real party in interest and one of the defendants below, for lack of prosecution. Although the complaint in the basic action is not before us, the parties agree that it was filed July 10, 1967, and named a number of Does as defendants. Plaintiff, pe...
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Opinion Plaintiff’s complaint, as amended, sought recovery of monies expended for taxes on an apartment building in Westwood. Four causes of action were alleged. The first and third causes of action both pleaded a written agreement (dated September 6, 1966) whereunder defendant guaranteed partial repayment by a certain date of the total tax monies advanced ($135,000) to the extent of $67,...
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*384 Opinion The trial court found defendant guilty of possession of marijuana (§ 11530, Health & Saf. Code). He appeals from the judgment and order denying his motion to suppress the evidence under section 1538.5, Penal Code. Three or four times during the two months prior to arrest Los Angeles Police Officers Celmer and Burke had received information from several reliable ...
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Opinion The issue here is whether statutes and a contract calling for the conduct of administrative tasks of the state’s Medi-Cal program by private carriers violate article XXIV, the civil service amendment of the state Constitution. Several California decisions hold that this provision inhibits “contracting out” state activities or tasks to private firms or persons. (Burum ...
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Opinion Contestants, Kenneth F. Mack and Alta Colleen Mack (Macks), appeal from a summary judgment dismissing their petition for revocation of probate and will contest. Juanita V. Lane died on February 14, 1968. Her will, executed on. April 3, 1967, and the codicil thereto, executed May 19, 1967, were admitted to probate on March 12, 1968. On July 25, 1968, the Macks filed a petition for revocatio...
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7 Cal.App.3d 408 (1970) 86 Cal. Rptr. 545 JENNY E. CHRISTIAN, Plaintiff and Respondent, v. CECIL A. BOLLS, Defendant and Appellant. Docket No. 9273. Court of Appeals of California, Fourth District, Division Two. May 7, 1970. *411 COUNSEL King & Mussell and C.L. Vineyard for Defendant and Appellant. Carroll & Anderson and Allen J. Kent for Plaintiff and Respondent. OPINION GARDNER, J. Plaintiff so...
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*421 Opinion In its first amended complaint, the Los Angeles Fire and Police Protective League, an unincorporated association, sought damages for alleged defamation by defendants of police members of the association. Three individuals, Duffy, Wagner, and Whisman, as plaintiffs, also sought damages for alleged defamation. Defendants’ demurrers to said complaint were sustained without leave to ...
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Opinion Appellant is a dealer in tropical fish. He appeals from a judgment of the superior court denying him an injunction restraining the California Department of Fish and Game from enforcing statutes and regulations prohibiting the importation and possession of piranha. We affirm the judgment. Statutory Scheme Since 1961 the Fish and Game Code has contained a comprehensive...
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Opinion This is a dispute between the brother of decedent (James) and a woman (Maurine) claiming as his surviving spouse. The trial court made an order finding that Maurine was the surviving widow of decedent, entitled to a family allowance and granting her letters of administration. The brother has appealed; 1 we reverse the order. Decedent was Maurine’s second husband; no issue is made he...
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Opinion A jury found defendant guilty of receiving stolen property (Pen. Code, § 496) and the court committed him to the California Youth Authority. He was acquitted of a second count charging a violation of Vehicle Code, section 10851. Defendant appeals from the commitment (an appealable judgment under Welf. & Inst. Code, § 1737.5). On the night of September 8-9, 1968, a 1961 Buick ...
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Opinion Plaintiff appeals from an adverse judgment in a declatory relief action. The subject of the action is a narrow strip of property (hereafter termed the driveway or the subject property) in lot 56 of the Riviera, an expensive single family residential area of 150 homes in the City of Los Angeles. Each home site in the tract has a frontage of 100 feet or more. With the exception of f...
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Opinion Plaintiff appeals from a judgment of dismissal, entered after defendant’s demurrer to his complaint was sustained without leave to amend. (Code Civ. Proc., § 58Id.) In his complaint, plaintiff Rich alleged that on April 9, 1968 case No. 930087 was filed in the Superior Court for Los Angeles County, with defendant Siegel as one of the plaintiffs, and Rich as one of the defenda...
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Opinion Carl F. Kruse died January 15, 1955, leaving a will which named his wife, Irene I. Kruse, executrix, and bequeathed all of the income from a testamentary trust to her for life, commencing with the date of his death, with power to invade the corpus. The residue remaining upon her death was devised and bequeathed to Shriners’ Hospital for Crippled Children, hereinafter referred to as “Shrine...
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7 Cal.App.3d 479 (1970) 87 Cal. Rptr. 17 MICHAEL MIHANS et al., Petitioners, v. THE MUNICIPAL COURT FOR THE BERKELEY-ALBANY JUDICIAL DISTRICT OF ALAMEDA COUNTY, Respondent; LORRAINE FREY et al., Real Parties in Interest. Docket No. 27931. Court of Appeals of California, First District, Division One. May 11, 1970. *482 COUNSEL Treuhaft, Walker & Burnstein, Robert Treuhaft and David Nawi for Pe...
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Opinion Respondent Johannes was employed by appellant landowners to design a large $900,000 apartment house project. He prepared the basic architectural plans and specifications. Disputes arose before any further architectural services were rendered during actual construction or any supervision was provided. The landowners purported to terminate his contracts for services. Thereafter, there was a...
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7 Cal.App.3d 508 (1970) 86 Cal. Rptr. 569 KENNETH I. DUNHAM et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Appellants. Docket No. 27005. Court of Appeals of California, First District, Division Four. May 11, 1970. *511 COUNSEL Howard W. Wayne for Plaintiffs and Appellants. Robert T. Anderson, City Attorney, and Robert P. Berkman, Assistant City Attorney, for Defenda...
Views: 1
7 Cal.App.3d 518 (1970) 86 Cal. Rptr. 593 OUTDOOR IMPORTS, INC., Plaintiff and Appellant, v. NAT STANOFF, Defendant and Respondent. Docket No. 35312. Court of Appeals of California, Second District, Division One. May 11, 1970. *520 COUNSEL Cooney & Cooney, Terrence W. Cooney and Harold E. Hanson for Plaintiff and Appellant. Hansen & Dillman and James N. Hansen for Defendant and Respondent...
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Opinion Roy Hidalgo appeals from a judgment of conviction of a violation of Health and Safety Code section 11911, possession of dangerous drugs (amphetamine sulphate tablets). Appellant was charged by information filed on December 4, 1967, and convicted by a jury on November 25, 1968. A motion to suppress evidence under Penal Code section 1538.5 was denied on November 19, 1968. On No...
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*533 Opinion This is a petition, brought under subdivision (i) of section 1538.5 of the Penal Code, to review an order of the superior court denying a motion, made under subdivision (a) of that section, to suppress certain evidence. We conclude that the motion was properly denied and deny the writ of mandate sought by petitioner. Police officers were told by an informant (not claimed to be ...
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Opinion In the course of booking a defendant who has been properly arrested, search of his person is entirely proper (People v. Wohlleben, 261 Cal.App.2d 461, 462 [67 Cal.Rptr. 826].) Thus the sole question here is whether there was reasonable cause to arrest defendant. Enroute to answer a burglary alarm at the Tivoli Hotel, Officer Wells heard a radio report by Officer Irwin that the latter had s...
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Opinion This is an appeal by the State Controller from an order sustaining objections to report of inheritance tax appraiser and fixing amount of tax due in the estate of George B. Devenish. We affirm the order. Facts George Devenish, a widower, died October 15, 1967, leaving a net taxable estate of $533,469.28. His will leaves all of his estate to a pour-over inter vivos trust to be administer...
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Opinion A petition alleging Glenn Ratcliff to be a person described in Welfare and Institutions Code, section 602, in that he was a minor and had possessed marijuana, was filed with the juvenile court. A referee held a hearing and found the allegations of the petition to be true, and made Ratcliff a ward of the court. A rehearing was granted on the ground that the proceedings before the referee w...
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Opinion Appellant appeals from a conviction of violation of Health and Safety Code section 11501, the unlawful sale of heroin. On March 30, 1970, we filed our original opinion affirming the judgment of conviction. On April 1, 1970, our Supreme Court filed its decisions in Prudhomme v. Superior Court, 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673]; Bradshaw v. Superior Court, 2 Cal.3d 332...
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7 Cal.App.3d 569 (1970) 87 Cal. Rptr. 6 JESSE E. MARTINEZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 35526. Court of Appeals of California, Second District, Division Four. May 13, 1970. *570 COUNSEL Morgan, Wenzel, Lynberg, Stearns & McNicholas and Donald S. White for Petitioner. No appearance for Respondent. Evelle J. ...
Views: 13
Opinion After a jury trial defendant was convicted of robbery in the first degree. There was no finding on the truth of a prior conviction charged in the information. On motion of the People, the allegation in the information that defendant was armed, was stricken. Probation was denied and defendant was sentenced to prison for the term prescribed by law. He appeals from the judgment of convicti...
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*589 Opinion A jury found defendant guilty of passing a $45 forged check. He appeals from the judgment. He assigns error in the admission in evidence of three forged checks other than that on which the accusation was based. The $45 check was presented to and cashed by Victor Kauck, a store owner, in August 1968. The maker was fictitious, or at least had no account at the drawee bank. Jerry ...
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Opinion This is an appeal from a judgment of conviction after trial by jury for violation of Penal Code section 496 (receiving stolen property). The jury acquitted appellant of a second charge of violating Penal Code-section 459 (burglary). Appellant admitted that he had two prior felony convictions. *598 Appellant represented himself at the trial, and the court acceded to his request to di...
Views: 10
7 Cal.App.3d 604 (1970) 86 Cal. Rptr. 726 THE PEOPLE, Plaintiff and Respondent, v. THOMAS FREDERICK HAYKO, Defendant and Appellant. Docket No. 8088. Court of Appeals of California, First District, Division Three. May 14, 1970. *606 COUNSEL Richard A. Hodge, under appointment by the Court of Appeal, and Anne Cumings for Defendant and Appellant. Thomas C. Lynch, Attorney General, Robert R. Granucci...
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*614 Opinion Appellant, a credentialed school teacher, petitioned for writ of mandate to compel respondent school district to advance him one step on the salary scale and to pay additional compensation for past years. Demurrer to his petition was sustained without leave to amend, the case , was dismissed, and plaintiff appeals. The plan of the Alum Rock Union Elementary School District is e...
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Opinion By its taxpayers’ action (Code Civ. Proc., § 526a), plaintiff sought to enjoin defendants from the enforcement of ordinance No. 136,900 and for a ruling regarding validity of the ordinance, which was enacted by defendant city to become operative October 1, 1968. The parties stipulated to the few facts necessary to a decision and brief additional testimony was received, following w...
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7 Cal.App.3d 637 (1970) 86 Cal. Rptr. 788 THE PEOPLE, Plaintiff and Respondent, v. JESUS ALBERT CHAVEZ, Defendant and Appellant. Docket No. 3908. Court of Appeals of California, Fourth District, Division One. May 14, 1970. *638 COUNSEL Robert B. Shanner, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney G...
Views: 3
7 Cal.App.3d 641 (1970) 86 Cal. Rptr. 731 Estate of ANN KATHERINE MOHR, Deceased. EMMETT HARRY ERNST, Petitioner and Respondent, v. ELMER FRANK MOHR et al., Claimants and Appellants. Docket No. 1186. Court of Appeals of California, Fifth District. May 14, 1970. *643 COUNSEL Crowe, Mitchell, Hurlbutt, Clevenger & Long and Edmund C. Hurlbutt for Claimants and Appellants. J.J. Brandlin, Walter R. Tr...
Views: 3
Opinion After a jury trial, appellant was found guilty, under count II of an information, of occupying a bar on January 7, 1969, with a book, papers and paraphernalia used for bookmaking on horses in violation of Penal Code section 337a, subdivision 2, a felony. The information contained four counts in all, including one count charging bookmaking, each based upon a subdivision of Penal Code, secti...
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Opinion Defendant appeals from the judgment entered on a jury verdict finding him guilty of the first degree burglary of a telephone booth. 1 The information originally charged defendant with an additional count of burglary of the telephone booth by use of explosives (Pen. Code, § 464). Before impanelment of a jury, the explosives count was dismissed on the motion of the People after the pros...
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Opinion Defendant appeals from a judgment of conviction entered after a court trial finding him guilty of the possession of marijuana, in violation of Health and Safety Code section 11530. He contends that the contraband introduced into evidence against him was obtained as the result of an unlawful search and seizure as; 1) the arresting officer did not have reasonable grounds to believe that h...
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Opinion Defendant, Susana Knolls Mutual Water Company (Susana Knolls), is selling water to two small mutual water companies— Alpine Mutual Water Company (“Alpine”) and Belwood Mutual Water Company (“Belwood”)—each of which serves the residents in a subdivision located in Ventura County. Plaintiff is a duly organized county waterworks district, authorized to provide water service in Ventura County....
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Opinion John Arthur Stage appeals from a probation order, deemed a final judgment, based on his conviction of visiting a place where marijuana was used (Health & Saf. Code, § 11556), following his plea of guilty to that charge. The trial court had denied Stage’s motion to *683 suppress marijuana and dangerous drug evidence found in his jacket. Stage’s appeal thus questions on...
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Opinion William A. Oehler appeals from a probation order, deemed a final judgment, based on his jury-tried conviction on two counts of grand theft. The grand jury indicted Oehler on three counts of grand theft (Pen. *687 Code, § 487), one count of forgery (Pen. Code, § 470), and eight counts of violating the Corporate Securities Law (Corp. Code, § 26104, subd. (a)). During Oehler’s jury tri...
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*692 Opinion Plaintiff, Ora Lee Fuller, appeals from a summary judgment entered in favor of defendant, Goodyear Tire and Rubber Company. Her pleadings allege she was a guest passenger in a Volkswagen automobile when the car struck a hole in the pavement and the right rear tire came off the wheel causing the car to overturn and strike a power pole. In her brief plaintiff describes...
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Opinion Petitions were filed in the Juvenile Department of the Superior Court in the County of Merced representing that the minors, Joseph G., Jesse C., and Johnny G., came within the provisions of Welfare and Institutions Code section 602 by reason of having violated Penal Code section 647, subdivision (f), disorderly conduct by being under the influence of intoxicating liquor, which the juvenile...
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7 Cal.App.3d 708 (1970) 86 Cal. Rptr. 754 FRANCIS W. HILTON, JR., et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF SANTA BARBARA COUNTY et al., Defendants and Respondents; MINNIE E. McNUTT et al., Real Parties in Interest and Respondents; GOLETA VALLEY HOUSING COMMITTEE, Intervener and Respondent. Docket No. 35308. Court of Appeals of California, Second District, Division One. May 19...
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7 Cal.App.3d 718 (1970) 86 Cal. Rptr. 713 ZED AYDELOTT, JR., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 12509. Court of Appeals of California, Third District. May 19, 1970. *720 COUNSEL Richard E. Johnson for Petitioner. No appearance for Respondent. Thomas C. Lynch, Attorney General, and Edward W. Bergtholdt, Deputy Attorne...
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Opinion Plaintiff, a grading and excavating contractor, appeals from that part of a judgment denying foreclosure of an asserted mechanic’s lien upon property owned by those defendants who were homeowners of and lenders having liens on a part of the property described in the claim of lien. The action arose out of two contracts; one under date of December 12, 1963, for excavating and g...
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*739 Opinion Delbert Eugene Davaney appeals from a judgment of conviction of first degree robbery (Pen. Code, § 211) in a non-jury trial. Statement of Facts At approximately 8:20 p.m., Davaney, on October 16, 1968, entered a liquor store in San Diego where Marvin Rosen was working as a clerk, approached Rosen, standing behind the cash register counter, raised a shotgun ...
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7 Cal.App.3d 751 (1970) 86 Cal. Rptr. 767 THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JAMES ANTHONY, Defendant and Appellant. Docket No. 3841. Court of Appeals of California, Fourth District, Division Two. May 19, 1970. *755 COUNSEL Herbert A. Moss, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney Ge...
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Opinion Defendant appeals from a denial of his motion for a new trial 1 and from a judgment entered pursuant to a jury verdict convicting defendant of armed robbery and assault with a deadly weapon. He makes several contentions. We shall separately discuss each contention and the facts pertinent thereto. Double Jeopardy Pursuant to an amended indictment defendant ...
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7 Cal.App.3d 786 (1970) 86 Cal. Rptr. 760 B.K.K. COMPANY, Plaintiff, Cross-defendant and Respondent, v. ROBERT SCHULTZ, Defendant, Cross-complainant and Appellant; BEN KAZARIAN, JR., et al., Cross-defendants and Respondents. Docket No. 34218. Court of Appeals of California, Second District, Division Four. May 20, 1970. *789 COUNSEL Allen, Fasman & Janger and Jerome Janger for Defendant, Cross-com...
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Opinion Defendant Thriftimart, Inc. appeals from a judgment for money damages rendered against it in an action brought for the personal injuries sustained by plaintiff Stephen Nevarez, a minor. The issue involves the *802 liability, if any, of a grocery store for injuries sustained by the three-year-old plaintiff when he ran into a public street and was struck by an automobil...
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*809 Opinion Plaintiff Anita J. Singer appeals from a court order rejecting her request for an upward modification of child support. From our review of the proceedings we are persuaded of the merit of appellant’s contention that the trial court restricted the evidence unduly and to her prejudice. A property settlement executed by the parties on September 16, 1960, was filed with the court a...
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*819 Opinion An indictment charged defendant with nine counts of violation of Penal Code section 487, subdivision 1 (grand theft), and eight counts of violation of Corporations Code section 3020 (incomplete or false records). All of the charges arose out of defendant’s dealings in municipal bonds, in connection with a corporation named R. E. Warburton Co., Inc. Following arraignment in the ...
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7 Cal.App.3d 826 (1970) 87 Cal. Rptr. 173 ZELDA J. LOW, Plaintiff and Respondent, v. CITY OF SACRAMENTO et al., Defendants and Appellants. Docket No. 12325. Court of Appeals of California, Third District. May 20, 1970. *829 COUNSEL Fitzwilliam, Memering, Stumbos & DeMers, Theodore D. Bolling, Hardy, Erich & Brown and Cavan Hardy for Defendants and Appellants. Friedman & Collard and Morton Friedma...
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*840 Opinion Roland Jack Henderson (Henderson) and Linda Gail Henderson (Mrs. Henderson) 1 moved under section 1538.5, Penal Code, to suppress certain physical evidence. Floyd Wilson Curry (Curry), a codefendant in the same criminal action, made a like motion. Both motions were denied in part. The petitions for writs of prohibition have been consolidated for hearing and decision. The peti...
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Opinion This appeal concerns the application of Evidence Code section 621 which became effective January 1, 1967, and reads as follows: “Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate.” The section is a reenactment of Code of Civil Procedure section 1962, subdivision 5 (repealed as of Ja...
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*872 Opinion This litigation had its genesis in two joint ventures involving the sale of desert properties in San Bernardino County. In each instance plaintiff, who had found owners willing to sell to him, thereafter encountered difficulties in meeting the purchase price; he then contacted defendants, husband and wife (the latter being joined as the formers’ principal). In consid...
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Opinion Appellant Charlotte Jerman (Jerman) and Mary Lee Cellini (Mary) had been friends for approximately 15 years. Sometime prior to October 5, 1965, Mary, in consideration of a loan to be made by Jerman, invited Jerman to participate to the extent of 10 percent of the profits which would result from the acquisition and subsequent sale by Mary and her husband Cesare Cellini of the fee title to a...
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Opinion The plaintiffs shall be referred to herein as “White” and “Aetna”; the defendant as “The District.” This is an action for declaratory relief in which White and Aetna seek rescission of a construction contract and the return of a bid bond posted by Aetna on behalf of White, the low bidder. The District filed a cross-complaint for damages. Following a trial to the court, judgme...
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*925 Opinion Defendant was convicted of murder, second degree (Pen. Code, § 187) and he appeals from the jury verdict. He asserts that the trial judge committed reversible error in failing on its own motion to instruct the jury on the defense of diminished capacity by reason of intoxication, and that the prosecutor was guilty of prejudicial misconduct during cross-examination of defense witne...
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Opinion Real party, Richard F. Verbrugge, was, prior to June 6, 1968, employed as senior narcotic agent with the State Department of Justice. He was assigned to the San Francisco office of the Bureau of Narcotic Enforcement. Effective June 6, 1968, he was dismissed from his position by the department, and the State Personnel Board affirmed his dismissal-and denied a rehearing. Having exhauste...
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Opinion These three consolidated appeals from portions of orders settling the first and final accounts and reports of the public administrator present common questions of law. Although there are slight procedural differences, they are immaterial to the determinative issues. For the sake of simplicity we shall discuss the facts and issues as if a single appeal were pending. The public administrato...
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Opinion Plaintiff filed a complaint on November 13, 1967, alleging five causes of action against defendants. Six of the eight defendants countered with demurrers. Taken together the demurrers attacked all of plaintiff’s alleged causes of action. On February 8, 1968, all demurrers were sustained “on the grounds stated therein.” Leave to amend was granted. Plaintiff failed to amend and, on ...
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Opinion Charged with murder of her brother-in-law Mehdi, defendant was found guilty after an extended jury trial. The murder was found to be of the second degree. This appeal presents no issue concerning the sufficiency of the evidence. The record discloses convincing circumstantial proof that defendant shot Mehdi, late at night on November 14, 1966, after lying in wait at his apartment. ...
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Opinion Appellant, Steven J. Vinson, received serious personal injuries on September 1, 1965, when he drove his motorcycle through a barricade and into an open ditch which had been excavated part way across Grant Avenue in Escondido, California. He brought suit to recover damages against Ham Brothers Construction, Inc. (Ham), the construction company that dug the ditch, the City of Escondido, a...
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Opinion By information, appellant James Scott Kilborn was charged in count I with possession of restricted dangerous drugs (Health & Saf. Code, § 11910), in count II with possession of restricted dangerous drugs for sale (Health & Saf. Code, § 11911) and in count III with transporting restricted dangerous drugs (Health & Saf. Code, § 11912). He entered *1001 a plea of not gui...
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7 Cal.App.3d 1005 (1970) 87 Cal. Rptr. 32 CARSON CAMERON FRAZZINI, Petitioner, v. THE SUPERIOR COURT OF INYO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 10095. Court of Appeals of California, Fourth District, Division Two. May 22, 1970. *1008 COUNSEL Vargas, Bartlett & Dixon, John C. Bartlett and Steven T. Walther for Petitioner. No appearance for Respondent. Frank H. F...
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Opinion Following a jury trial defendant was found guilty of attempted murder (Pen. Code, § 187) and was sentenced to state prison. He appeals from the judgment of conviction. The offense was committed in the early morning hours of March 9, 1968, in LaHabra in an apartment rented to one William Brooks. Brooks operated a billiard parlor nearby. The victim, Marie Siuro, had been living...
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*682 Opinion William Kahre and two others charged by information on five of seven separate counts, with conspiracy to commit bookmaking (Pen. Code, § 182), engaging in bookmaking (Pen. Code, § 337a, subd. 1), recording and registering bets (Pen. Code, § 337a, subd. 4), and accepting bets (Pen. Code, § 337a, subd. 6), was found guilty on counts 1, 2, 6 and 7. Proceedings were suspended and Kah...
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Opinion Defendant was charged by information with violation of Penal Code section 459 (burglary) in count I, and with violation of Penal Code section 496 (receiving stolen property) in count II. The information was amended to allege two prior convictions of Penal Code section 459. Defendant pleaded not guilty and denied the priors. His motion under Penal Code section 1538.5 was submitted on the...
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Opinion Petitioners are two policemen who were discharged by the City of Roseville. They petitioned for reinstatement and back pay, contending their discharge was illegal since they were permanent (as distinct from probationary) employees who were discharged without a hearing. The city argued that petitioners were still probationary employees and as such subject to summary discharge. Petitioner...
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*83 Opinion On February 11, 1969, a petition alleging that appellant came within the provisions of Welfare and Institutions Code section 602 was filed in the juvenile court. The petition charged in two paragraphs that appellant had violated Penal Code section 242 (battery) by using force and violence upon the person of two named police officers. On February 20, 1969, the matter c...
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Opinion In this action for damages for personal injuries brought by plaintiff against Clay Adams, Incorporated, a corporation (hereinafter referred to as “Clay Adams”), H. W. Paley (hereinafter referred to as “Dr. Paley”), and Mount Zion Hospital and Medical Center, a nonprofit corporation (hereinafter referred to as the “Hospital”), plaintiff appeals from a judgment of nonsuit in favor o...
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*66 Opinion Roberta H. Wolfer appeals from a minute order denying her motion to vacate her default 1 and the judgment entered thereon and for relief incidental thereto. The appeal lies (Code Civ. Proc., § 904.1, subd. (b)), but we affirm for reasons which we will now set forth. The Facts In January 1966 Westinghouse acquired, by written assignment for valuab...
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Opinion This appeal concerns the application of the “Personal Property Brokers Law” codified as division 9, sections 22000-22653 of the Financial Code. Hereafter all statutory citations will be to that code. Defendant Austin J. Bell was the president and 50 percent shareholder of King Way Container Service, Inc. (King Way). King Way was in the business of selling box containers to the United Stat...
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